https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1937

Sang v Ogola t/a Ogola Okello & Co. Advocates & another (Employment and Labour Relations Cause 1869 of 2017) [2026] KEELRC 1937 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] KEELRC 1937 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Cause 1869 of 2017 JW Keli, J July 3, 2026 Between Lilian Jebitok Sang Claimant and Daniel Oching Ogola t/a Ogola Okello & Co. Advocates 1st Respondent Job Collins Odhiамво Оchieng 2nd Respondent Judgment 1.The cause of action in the suit was violence inflicted upon the claimant, a secretary, at the first respondent’s law firm, workplace. The violence was carried out by the second respondent, a senior associate advocate in the law firm. The advocate was convicted of the criminal offence of causing actual bodily harm to the claimant. The 2nd respondent was a tempestuous, well-built, muscular man who expressed his work frustration against a fragile young woman by beating her with his strong hands and fists. The claimant’s pregnancy of barely 3 months was threatened due to the violence. Lawyers are required before admission to the Bar as Advocates to take the following oath of office before the Chief Justice of Kenya – ‘I.,,xyz.. swear by the Almighty God that I will at all times uphold the rule of law and the administration of justice and that without fear or favour. I will well and truly discharge my duties as an advocate of the High Court of Kenya…’’ How can an advocate purport to uphold the rule of law and administration of justice while failing to do so at the law firm's workspace? The court was disturbed that all the advocates at the law firm forgot the foregoing oath to office and treated the issue of the violence lightly and even purported to justify the 2nd respondent’s conduct. The International Labour Organisation Convention against Violence and Harassment of 2019 (C190), establishes the right of everyone to a world of work free from violence and harassment, including gender-based violence. The claimant was a former secretary of the 1st respondent, working under the instructions of the 2nd respondent, a senior associate at the law firm. She alleged constructive dismissal on account of violence at the workplace meted out against her by the 2nd respondent and filed a statement of claim dated 19th September 2017 seeking for the following relief-a)A declaration that the Claimant was constructively dismissed and the constructive dismissal was wrongful, unfair and unlawful/illegal.b)A declaration that the Claimant's rights and freedoms under the following Articles of the Constitution were violated: Article 28, Article 29(c), Article 29(d), Article 29(f), Article 27(4), 0 Article 41(2)c)Twelve month's salary in compensation for the constructive dismissal being Kshs. 516,000/=.d)General damages for battery.e)General damages for assault.f)Aggravated damages.g)Exemplary/punitive damages.h)General damages for violation of Constitutional rights in prayer (b) above at Kshs 10,000,000/=.i)Kshs 2,000,000/= being loss of medical cover for one year.j)Salary for three (3) months totaling Kshs 129,000/= being pay which was to be earned during maternity leave.k)Prorated leave for 6 months being Kshs 17,365/=1)Pay in lieu of notice for 18 days being Kshs 29,769/=.m)Cost of house help hired on an emergency basis from 13th July 2017 to 17th July @ 300 per day being Kshs 1500/=.n)Costs of the suit.0)Interest at 14% on the principal amount which the Court will award reckoned from the date of judgment or from the date which the Court shall deem fit until payment in full.p)Certificate of Service.q)Any further or better relief as the Honourable Court shall deem fit to grant. 2.The claimant, in support of the suit, filed her witness statement of the same date and a list of documents of the same date, along with the bundle produced at pages 13-52 of the claimant’s trial bundle. The claimant also submitted a further witness statement dated 18th June 2018 (pages 62-67 of the trial bundle). Additionally, she filed another witness statement dated 9th December 2024 after the conclusion of the criminal case at Kibera, case no. 1862 of 2017, in which the 2nd respondent was convicted of the offence of assault causing the claimant bodily harm. 3.The claim was opposed by the respondents. The 1st respondent filed a statement of defence and counterclaim dated 17th November 2018. In support of the response, the 1st respondent filed witness statements from Daniel Ochieng Ogola, Marie Akech Opiyo, and Abigael Mulekye Okumu, all dated 18th June 2018 (see pages 15-27 of the respondents’ trial bundle). The 1st respondent also filed a list of documents dated 18th June 2018 and a bundle of documents (see pages 28-68 of the respondents’ trial bundle). 4.The 2nd respondent filed his statement of defence dated 17th November 2017, supported by his witness statement and that of Judith Akinyi Oswero, both dated 18th June 2018. The 2nd respondent further filed a list of documents dated 18th June 2018, together with the bundle of documents (at pages 83-89 of the respondent’s trial bundle). 5.The 2nd respondent further filed a notice of preliminary objection seeking for the claim against him to be struck out or dismissed on the ground that the court lacked jurisdiction to hear the claim against the 2nd respondent (page 90 of the respondent's trial bundle). The claimant’s case in brief as per her witness statement 6.The claimant stated she was employed by the 1st Respondent at the law firm as a secretary around October 2011. She was not provided with a written contract of employment. She worked diligently for the firm for over six years until July 2017. Her last gross salary was Kshs 43,000. The 2nd Respondent, who is an advocate, had been one of her supervisors at the firm since her employment began. The 2nd Respondent is quick-tempered, and during her time with the firm, she endured verbal insults from him whenever he was dissatisfied with her work. This included instances such as when he called her mobile phone during lunch hour, which she did not answer after not hearing it, or when he called after hours and she did not respond for some reason. Sometimes in July 2015, she was assaulted by being slapped on the face in the firm’s offices by the 2nd Respondent, who alleged that she had performed some work below his expectations. He also hurled insults and demeaning remarks, such as telling her that she earns a salary for no reason, that she does not use her common sense, and that she could not take him anywhere. He even called her a mad woman who should be in Mathare Mental Hospital and not an office. 7.The claimant alleged that she made a complaint to the 1st Respondent in his office. The 1st Respondent, after listening to her, responded by telling her to understand that the 2nd Respondent is hot-tempered and that she should tolerate him and learn to work with him "as he is" since he was her boss. The 1st Respondent then told her that he would address the issue the following day but did not do so. She then decided to report the matter to Kilimani police station under OB no 27/02/07/15 but later did not pursue the complaint after intervention by colleagues. See Appendix A of her Claim. Also see Claimant's Second List & Bundle of Documents for police abstract. 8.By a letter dated 28th June 2017, the claimant stated that she applied for annual leave but the 1st Respondent did not act on the same. The normal procedure after considering the application was for him to endorse "approved" on the form in the presence of a leave applicant and then give it to the office accountants. In this case, the same was not done even after along time and she knew and understood all along that her leave had been denied. She alleged to have gone to the 2nd Respondent's office twice but the leave remained unapproved. On Thursday 13th July 2017, the 2nd Respondent gave her some work for typing and he left the office, presumably for Court. That she did the work to the best of her ability based on her understanding of the file. That she was to prepare inter alia a summons to enter appearance but with no accompanying Plaint to enable her discern who the Plaintiff and Defendant would be. That tried her best but made an error which she did not realize she had made at that time. The 2nd Respondent telephoned the office at around 3.00 pm and instructed her to give the work to a pupil at the Firm named Ms. Abigail Mulekye for initial approval. She gave out the work and the same was approved by the said pupil who also failed to realize the error she had made. At around 5.00 p.m., the 2nd Respondent came back to the office and after looking at the work, he walked to her office and in an extremely furious tone stated that the work was badly done. The claimant allege the 2nd respondent hurled insults at her calling her a mere "house maid" and a "small child who needs to be pampered and spoon fed" and demanded that the work be corrected immediately. That she pleaded with him to stop insulting her and to allow her to do the work the following morning because his insults had interfered with her ability to properly work but this made him even more angry. The 2nd Respondent hurled a paper punch and a file at her and then pushed her to the wall and slapped her on the face. The 2nd Respondent then started banging on her desk saying that he is a boss and a lawyer while the claimant was a mere secretary and that she could "take him wherever I want". 9.The claimant stated that she became scared and began to scream and shout for help, but most of the other staff had left for the day. That her shouting for help somehow triggered more violence from the 2nd Respondent, who slapped her again and then put his hands around her neck and started strangling her to the extent that she could not breathe. An Advocate at the firm named Ms. Marie Kopiyo heard the commotion and barged in to find the 2nd Respondent assaulting her. The Advocate tried to calm the 2nd Respondent down and begged the 2nd Respondent to leave her alone "because of my situation". She was pregnant, a fact which the 2nd Respondent knew very well. Marie Kopiyo is the 2nd Respondent's spouse. The 2nd Respondent then violently pushed a seat towards her which rolled on its wheels and hit her stomach and she instantly began to bleed. That is when the 2nd Respondent stopped assaulting her. He walked away to his office followed by the Advocate who had tried to calm him down. The Advocate then locked the 2nd Respondent in his office, and she got the chance to go to the washroom to tidy up and tend to herself after the assault. That she then made a call to the 1st Respondent and informed him what had happened, who advised her to rush to Nairobi Women's Hospital near the office. She proceeded to the Hospital where she was admitted and where various medical checks were conducted on her including an ultrasound scan. Later at night at around 3 a.m. her condition worsened and she was transferred by ambulance to the Ongata Rongai branch of Nairobi Women's Hospital. She alleged that she sent an SMS message to the 1st Respondent to inform him that she was no longer at the Adam's arcade branch of Nairobi Women's Hospital then. She followed it up with a phone call in the morning but he did not respond. The claimant stated that she gave her husband the 1st Respondent's number to try and call him. After this call, the 1st Respondent now called her and quarreled her. That the 1st respondent told her that it was her fault that the 2nd Respondent had assaulted her since she knew his temper and asked her what she expected him to do. To the 1st Respondent, the issue between 2nd Respondent and the claimant did not concern him. The claimant asserts she was also reprimanded for having given the 1st Respondent's mobile telephone number to her husband. 10.The claimant further states that she was admitted from Thursday 13th July 2017 to Monday 17th July 2017. On discharge she was given bed rest from 19th July 2017 to 31st July 2017. The sick off sheet is Appendix B. Upon discharge from Hospital wrote she informed the 1st Respondent that she had been given bed rest which coincided with more or less the period of annual leave she had earlier applied for but which was yet to be approved. The claimant contended that she also made a report to Kilimani police station and criminal proceedings were instituted against the 2nd Respondent as Kibera Criminal case number 1862of 2017. The OB no is OB/17/18/07/17. The case was ongoing and several witnesses have testified. (As at time of the hearing of the case the 2nd respondent had already been convicted) 11.The claimant stated that she also made a formal Complaint to the Law Society of Kenya (L.S.K) on 20th -July 2017. Appendix C is a copy of the complaint letter. She was issued with a P3 form a copy of which is Appendix D. The L.S.K then wrote to the 2nd Respondent asking for his comments. Appendix E is the letter from the L.S.K. The 2nd Respondent has responded. Appendix F is his response letter and statements of his witnesses. She was issued with a Medical Report and a letter confirming my admission at Nairobi Women's Hospital. See Appendix G and Appendix H respectively. She responded to the 2nd Respondent's letter as requested by the L.S.K as per Appendix I. She was assaulted and battered by the 2nd Respondent and caused much distress and physical pain. Arising from the assault and battery meted out on her by the 2nd Respondent as condoned 1st Respondent, she was seriously distressed and humiliated and it was no longer tenable for me to continue being an employee at the Firm and especially to work with the 2nd Respondent. She wrote to the 1st Respondent a letter to that effect through her Lawyers and also demanded for inter alia compensation for constructive dismissal. Appendix J is a copy of the letter. A further demand letter was written and is annexed hereto as Appendix K.7. The 1st Respondent responded by a letter which is annexed as Appendix L and her Lawyers wrote a letter in reply to the 1st Respondent's letter. A copy of the letter from her Lawyers is annexed hereto as Appendix M. As is clear from the letter by the 1st Respondent, liability was denied in an unapologetic manner and in no uncertain terms. A counter demand was even made by the 1st Respondent and her leave application letter was annexed now with leave endorsed as "approved". That her leave had never been approved even up to the date she was assaulted. Appendix N is a copy of the fraudulently endorsed letter. 12.The claimant also sent a demand was also sent to the 2nd Respondent as is evidenced by Appendix O annexed hereto and liability was equally denied as per Appendix P annexed hereto. 13.The claimant asserts that, completely ignoring her status that she was no longer his employee, the 1st Respondent continued remitting salary into her account, which she objected to through her lawyers. (See Claimant's Second List & Bundle of Documents). 14.The Claimant contended that the Respondents have conducted themselves in a callous and reprehensible manner by undertaking conduct which intentionally and or recklessly and negligently caused her emotional suffering and loss of dignity. The 1st Respondent knew and condoned the 2nd Respondent's behaviour. The constructive dismissal denied her, inter alia, the benefit of a contractual benefit of medical cover of Kshs 2,000,000/= per annum and 3 months' salary during the maternity leave which she would be entitled to had she remained in employment by the time of delivery of my child. She delivered her child in February 2018. That she did not proceed for leave in 2017 and was not paid in lieu thereof. She had worked for six months in 2017. The claimant alleged that she expended Kshs 300/= daily to pay for a temporary house help to take care of her children from 13th July to 17th July 2017 when she was in Hospital. The LSK and the Disciplinary Tribunal advised her that they would wait for the outcome of the Criminal proceedings and these proceedings before addressing the complaint substantively. (See Claimant's Second List & Bundle of Documents). 15.The claimant denied engaging in outside work during work hours while at the Firm. She denied having debtors in the office and causing commotion there, which she found a surprising allegation. She also denied throwing a seat at the 2nd Respondent. That is a fabrication that was not even possible. She has been married since 2009 to her husband and is not the sole breadwinner. She sought the reliefs in the Statement of Claim jointly and severally against the Respondents. 16.The claimant in a further witness statement dated 9th December 2024 stated as follows: She had already filed a witness statement dated 18th June 2018. However, developments have occurred since the filing of that statement, necessitating the submission of this additional witness statement. The claimant added that the judgment in Kibera Criminal Case number 1862 of 2017 was delivered on 7th November 2024. The 2nd Respondent was convicted of the offence of assault causing actual bodily harm to me. She produced and annexed a copy of the certified typed proceedings and judgment. (See Claimant's Third Bundle of Documents, which contains the certified proceedings up to the prima facie stage of the criminal case, and the Claimant's Fourth Bundle of Documents, which contains the full certified typed proceedings and certified judgment.) These documents substantiate that the 2nd Respondent did indeed assault her, and her claim is not baseless, as the Respondents have consistently claimed. The 1st respondent’s case in brief 17.The first Respondent stated that he was an adult male of sound mind and had been practising law as Ogola Okello & Company Advocates for a respectable 19 years. The first Respondent's practice has grown to include up to 15 members of staff, and the environment is busy with service delivery to clients as well as encouraging personal development among staff. The median age is 35, making the environment youthful and lively. In response to paragraph 4, the Claimant was employed on 27th October 2011. The first Respondent asserts that the Claimant was employed as a secretary, having claimed in her application letter that she had experience working in a busy law firm, and that she was ambitious, highly initiative-driven, detail-oriented, and capable of working under tight deadlines. Later, in February 2013, the first Respondent had to hire another secretary and assigned the Claimant to different duties in the hope she would adapt to the firm’s growing needs. However, it later emerged that she had deceitfully misrepresented her abilities and was actually dismissed from her previous employer for neglect and loss of official documents, a fact revealed later during her employment. The first Respondent further stated that all efforts to help the Claimant fit into the busy and vibrant work environment failed, as she was unable to become part of the team and instead was more of a hindrance. The first Respondent admitted that the Claimant earned Kshs. 43,000.00, but denied that she carried out her duties diligently. 18.In further response to paragraph 5 of the claim the 1st Respondent averred that the Claimant was frequently:-a)Absenting oneself from the place of work without permission.b)Willfully neglecting to perform her duties consistently.c)Disrespect and use of malicious language on seniors that can be witnessed by at least two other staff members.d)Use of abusive or insulting language to any person placed in authority.e)Frequent lateness in conclusion of assignments.f)Carelessness resulting into loss of documents.g)Abuse and misuse of office phone facilities. 19.The 1st Respondent admits that the Claimant was a colleague of the 2nd Respondent. The Claimant's allegations of insults are false and intended to conceal her shortcomings at work. She had been verbally warned that her performance was substandard. In response to paragraph 7, the 1st Respondent stated that the Claimant acknowledged her work was unsatisfactory and that she would be called during her lunch break, which is normal given her role as a secretary. The 1st Respondent denies any knowledge of allegations that the Claimant was insulted by the 2nd Respondent or any other staff member for not answering her phone or for being called late at night. Furthermore, the 1st Respondent explained that the Claimant often lacked a mobile phone and used the office phone to be contacted by her immediate family and friends. Therefore, claims that she was called at night by staff are false and unsubstantiated, and the Claimant must provide strict proof of such allegations. The 1st Respondent also denies the allegations in paragraph 8 and will require the Claimant to prove them. He further states that the Claimant was tolerated despite her misdemeanours in the hope that her work and discipline would improve. The Claimant and her husband even caused disruptions in the office during working hours due to debtors, which embarrassed the office and affected other clients. The 1st Respondent asserts that he has been accommodating towards the Claimant, even in situations where disciplinary action might have been justified. 20.The 1st Respondent denies the contents of paragraphs 8 and 9 of the Claimant's Statement of Claim and will require her to provide strict proof. The Claimant has, throughout her employment, borrowed money and sought assistance in writing nearly every month. If her allegations of verbal and physical assault were true, she would have documented them, as these are serious claims. The 1st Respondent asserts that the office has been a safe and friendly workplace for the past 19 years. The allegations that the 1st Respondent condones the Claimant's tolerance and work under harsh conditions are also denied, and the claim that she reported an incident to Kilimani Police Station on 27th February 2015 is unknown to the 1st Respondent. Furthermore, the issues concerning the Claimant mainly relate to the restraint exercised in disciplinary actions against her on humanitarian grounds, given that she was the sole breadwinner of her family, a fact she allegedly exploited until her departure. In response to paragraph 10 of the claim, the 1st Respondent states that the procedure for approving leave was not as described by the Claimant. The Claimant had previously taken days off without permission, and the accounts office, as custodians of records and the biometric register, had to be checked. Therefore, the claim that her leave was denied is incorrect, as prior to her departure, the 2nd Respondent advised her to ensure she completed her handover and transferred any outstanding work to her reliever. Her leave was properly approved, and on 17th July 2017, while allegedly in hospital, she sent the 1st Respondent a WhatsApp message stating she was on bed rest during her leave days and would report back after 1st August 2017, when her leave was scheduled to end. The 1st Respondent, in response to paragraph 11 of the claim, averred that the allegations therein are false, as the Claimant was assigned the work on 12th June 2017. The work was diligently executed, yet most of it remained unattended to despite the client's trust. The 1st Respondent asserts that the Claimant's intention was to leave the work incomplete and proceed on leave. Regarding paragraph 12, the allegations are untrue, and the Claimant will be required to prove them. The 1st Respondent states that the Claimant had represented in her CV that she was experienced, highly initiative, and capable of delivering work within deadlines, but she had carelessly prepared and approached her work. The 1st Respondent requests leave from the court to review the assignment given to the Claimant, as mentioned in paragraph 12 of the Statement of Claim, to assess if it aligns with her claim of doing her best. The 1st Respondent asserts that the contents of paragraphs 13-19 are not factual and will require strict proof from the Claimant. The 1st Respondent cannot respond to the allegations in paragraphs 13-20 and will request the Claimant to prove them. While the Claimant admits to the contents of paragraphs 21 and 22 only to the extent that she sought money to go to hospital, the rest of the allegations are denied, and she will be required to provide strict proof. The 1st Respondent denies the account in paragraph 23 and will require the Claimant to substantiate her claims. The 1st Respondent states that it is normal that calls to their phone in the morning are answered, but when a call is made to hers by the 2nd Respondent and not answered as in paragraph 7, this is considered normal behaviour. The 1st Respondent denies that she was reprimanded during their conversation about her condition and will require strict proof of this. The 1st Respondent is unaware of the contents of paragraph 24 and will require proof of the allegations. Further, the 1st Respondent states that the contents of paragraph 25 are false and will seek court leave to produce an extract of her WhatsApp message, in which the Claimant confirmed she would still be on leave, making the claim that her leave had not been approved false. The 1st Respondent is unaware that the Claimant filed a report after her discharge and will require proof. Regarding paragraphs 28-30, the 1st Respondent is unfamiliar with these claims and will demand strict proof. In response to paragraphs 29 and 30, the 1st Respondent states that the Claimant's complaint was dismissed by the Law Society of Kenya. The 1st Respondent makes no admission regarding paragraph 31. As for paragraph 32, the Law Society of Kenya has since addressed the matter and concluded that the issues can be heard by this Honourable Court. The 1st Respondent denies the allegations in paragraph 33, alleging that the Claimant misconducted herself and assaulted the 2nd Respondent, with the assault and battery claims remaining unproven and subject to a court’s judgment. The 1st Respondent makes no admission of the Claimant’s allegations and demands strict proof that the acts were intentional and that negligence or breach of contract exists. The 1st Respondent denies that the workplace was unsuitable, noting that the Claimant has been working in the same office for over six years, during which she caused some breaches that were largely ignored. The Claimant’s claims, including her admission that she did not perform her duties as expected and her attempt to hide behind the allegation that the 2nd Respondent has an explosive temperament, are denied, and she will be required to prove them. 21.The 1st Respondent denied the allegations of breach of contract and/or negligence and put the Claimant to strict proof. The 1st Respondent in answer to the particulars in paragraph (a)-(h) stated as follows:-a)The allegations contained in paragraph 34 (a) and (e) are too general to be responded to as they lack in material particulars as to when the Claimant was insulted, assaulted and battered. That further, the 1st Respondent cannot answer or take disciplinary action in regards to unknown incidences. The 1st Respondent cannot also answer allegations in relation to unknown members of staff or employees who are not party to the proceedings.b)As to paragraph 34 (b) the 1st Respondent's practice is 19 years old full functioning set where the Claimant has for the last 6 years worked and taken all her leave for the period she has worked and borrowed money almost every month of her working days. The 1st Respondent avers that an office which has accorded the Claimant such an environment cannot be symptomatic of an organization devoid of a structure to discipline the 2nd Respondent if he had a deviant behavior.b)The 1st Respondent shall aver that in response to paragraph (c) that it would be contrary to the rules of natural justice to have action taken against the 2nd Respondent for unspecified allegations of expressions of rage to be taken against a party in the absence of any occasion where rage was expressed.d)The 1st Respondent in response to paragraph (d) will crave leave of the court to refer to the Claimant's numerous applications for financial assistance and leave by the Claimant to disapprove the wrongful and false notion that there lacked adequate relational care to the grievances by junior staff at the firm. In any event the 1st Respondent has maintained an open door policy and the allegations that junior staff who are not party to the current proceedings cannot access the 1st Respondent are an abuse of the proceedings.d)In respect to paragraph (f), (g), and (h) the 1st Respondent denies the allegations of absence of any policy and shall put the Claimant to strict proof.f)The 1st Respondent shall aver that since the departure of the Claimant the operations of the office have improved tremendously. 22.The 1st Respondent denies the contents of paragraph 35 that the Claimant was assaulted and that the doctrine of vicarious liability has no application. That the 1st Respondent is a stranger to the allegation that the Claimant was assaulted and battered by the 2nd Respondent and that she was seriously distressed and humiliated. That in further response to paragraph 35 the Claimant never allowed the 1st Respondent to inquire as to allegations against the 2nd Respondent as she never resumed her duties even after indicating that she had proceeded on her annual leave. That further having absconded her duties the Claimant denied herself her right to be heard by the 1st Respondent on the events of 13th July 2017. That it is noteworthy that the 1st Respondent paid the Claimant her full salary for the month of July, August and September 2017 noting that she was supposed to resume her duties sometime in August 2017. The claimant did not issue ⁠notice of her termination of her employment and the Claimant was paid her salary up to September 2017 inspite of the Claimant's breach. The 1st Respondent further asserted that the Claimant has failed to clear and has to tender her resignation in line with the provisions of the Employment Act and dishonestly alleged that her leave was never approved yet she continued to draw a salary from the 1st Respondent. The 1st respondent gave particulars of breach of contract by the claimant to be- Failing to give notice; and failing to pay one month salary in lieu of notice. That the 1st Respondent is estopped from alleging that she objected to her salary being paid yet she continues to hold onto to the same and has never returned to date. The 1st Respondent has been unable to clear the Claimant and issue her a certificate of service arising from her conduct and fail to clear her loans. The 1st Respondent denies the contents of paragraph 42-47 of the Claimant's Statement of Claim that she was assaulted and battered and that her place of work was unsafe. The 1st Respondent shall put the Plaintiff to strict proof of the allegations that the Claimant was discriminated and that she suffered emotionally and/or lost her dignity. The 1st Respondent averred that the Claimant's purported resignation was for purposes of avoiding the disciplinary hearing and in the circumstances is unlikely to constitute unfair constructive dismissal. The 1st Respondent averred that the Claimant left employment on her own volition and that her work particularly was most unsatisfactory because of –a.Absenteeism.b.Lateness.c.Insubordination. 23.The 1st respondent further Respondent denies that the Claimant was constructively dismissed and the low of her medical cover arose from her absconding from duty. The provision of a medical cover KES 2,000,000.00/- is contractual and subject to her remaining in employment. The claim is therefore remote as she had been accorded NHIF card which was paid for up to the time she absconded. That further, the Claimant ceasing to be an employee of the 1st Respondent, she could not enjoy the benefits of her employment to wit the Kshs. 2,000,000.00/- medical cover. The Claimant's claim for maternity leave is unfounded as the Claimant will be due for maternity leave in the year 2018 and has since ceased to be an employee of the 1st respondent. Furthermore, the 1st Respondent avers that he was not aware that the Claimant was pregnant. The 1st Respondent further avers that there was no breach of the terms of employment thar would entitle the Claimant to resign without notice. The 1st Respondent avers that the Claimant claims for loss of salary, benefits and leave for 2017 whish she proceeded for is misadvised and without any legal or factual basis. The Claimant's claim for temporary house help is unfounded as there is no privity of contract. Save as has been expressly admitted hereinabove, the 1st Respondent denies each and every allegation contained in the Statement of Claim as if the same had been set out herein and traversed seriatim. The claims have no legal and/or factual basis. Counterclaim by the 1st respondent against the claimant 24.The 1st Respondent made a counterclaim as follows- The Claimant was employed with effect from 27th November 2011 as a secretary. Her last salary was Kshs.43,000.00/-. The Claimant's terms of employment are subject to the Employment Act, 2007. The 1st Respondent reiterates the contents of paragraph 1-55 of the Statement of Defence hereinabove in this Counterclaim. The Claimant purported to resign from her employment on 31st July 2017 upon receiving July salary claiming that she had been constructively dismissed yet the Claimant had written to the 1st Respondent a WhatsApp message that she would be on bed rest upto 31st July 2017 which fell within her leave days that was to end on 1st August 2017. The 1Respondent notified the Claimant that her resignation was irregular as she had not issued a one month notice or paid one month salary in lieu of notice. The 1st Respondent continued to pay the Claimant her salary up to September 2017 when the Claimant wrote through her Advocates that she had quit and she would reimburse her salary less bank charges. The 1st Respondent will crave leave of the court to refer to the said letter dated 22nd September 2017 for its full tenor and effect. The 1st Respondent claims the amount of Kshs.240,000.00/- together with one month's salary in lieu of notice of Kshs.43,000.00/- which remains unpaid despite the same being demanded. This Honorable Court has jurisdiction to determine this matter and there is no other suit pending in court herein. The 1st Respondent prays that the suit be dismissed with costs and judgment to be entered in favour of the 1" Respondent and against the Claimant for:(a)The sum of Kshs. 283,000.00/- with interest until payment in full.(b)Cost of the suit and interest thereon.(c)Interest on (b) and (c). The 2nd respondent’s case in brief 25.The 2nd Respondent is an adult male of sound mind who has been practising law for 11 years. The 2nd Respondent states that the Claimant was employed as a Secretary, having indicated in her application letter that she had worked in a busy law firm and that she was ambitious, resourceful, driven, organised, and capable of working even under tight deadlines. The 2nd Respondent admits paragraph 5 to the extent that the Claimant earned Kshs. 43,000.00 but denies that she carried out her duties diligently. The Claimant will be required to provide strict proof. In further response to paragraph 5, the 1st Respondent shall assert that the Claimant was frequently:-a.Absenting oneself from the place of work without permission.b.Willfully neglecting to perform her duties consistently.c.Disrespect and use of malicious language on seniors that can be witnessed by at least two other staff members.d.Use of abusive or insulting language to any person placed in authority. Frequent lateness in the conclusion of assignments.f.Carelessness resulting into loss of documentsg.Abuse and misuse of office phone facilities. 26.The 2nd Respondent admits paragraph 6 only to the extent that the Claimant was a colleague. The 2nd Respondent denies the contents of paragraph 7 of the Claim and shall put the Claimant to strict proof that she was insulted. The 2nd Respondent further stated that if the Claimant was called, it was because she was out of the office past the permitted hours. The 2nd Respondent shall require the Claimant to provide strict proof that he called her at any time during her employment after hours. The 2nd Respondent further asserts that the Claimant has always not had a personal phone; she used the office phone for her personal and private communication, which was a fixed mobile phone that could not be taken home. People used to call her even after 5.00 pm on that office number. The 2nd Respondent denies the allegations in paragraph 9 that the claimant was slapped in the face in 2015 or at any other time. In response to the accusations that the Claimant was abused, earned nothing, and performed the 2nd Respondent's work below expectations, these are unfounded, as the work undertaken was official client work and not personal tasks, and it had to be performed to the highest standards, not subject to the 2nd Respondent's personal whims. The allegations attributing to the 2nd Respondent regarding the Claimant’s earnings and mental state are denied; she will be required to provide strict proof. The 2nd Respondent is a stranger and is not privy to the allegations and insinuations that the 1st Respondent condoned and asked the Claimant to understand and work with the 2nd Respondent. The 2nd Respondent is unaware of any complaint lodged and subsequently withdrawn at Kilimani Police Station under OB no. 27/2/2015, which was allegedly due to the intervention of unknown colleagues. With regard to paragraph 10, the 2nd Respondent makes no admission, as the authority to grant leave lay solely with the 1st Respondent. The contents of paragraph 11 are inaccurate. The Claimant had been assigned the file over a month prior to that, but the work was not completed, and in the meantime, the Claimant concealed the file, causing significant delays in providing service to the client. The 2nd Respondent denies the contents of paragraphs 12-19 and shall require the Claimant to provide strict proof of the allegations contained therein. 27.That in further response to the said paragraph the 2nd Respondent avers as follows:- The Claimant was too busy selling food to security guards in other offices which made her fall behind in her work causing her delay in turnaround of assignments and not based on her alleged lack of instructions that led to her making a mistake. That further the Claimant had been reminded that the Client Representative would pass by the office to collect the pleadings for execution later on that day. The Claimants attitude when the Client arrived was not of a person who had committed an error and instead become argumentative and sought to do the work later leading to the file being withdrawn and assigned afresh. The Respondent not keen to deal with the Claimant who had refused to correct the work released the Client representative but the Claimant persisted and trying to drag other persons who were not even part of her problem to the issue. That further in response to paragraph 15, 16 and 17 Claimant uttered abusive and very derogatory words towards the 2nd Respondent and questioned where the 2nd Respondent had been the whole day and that the work would be done in the morning. The Claimant repeatedly shouted despite being asked to behave like an adult but she persisted despite the Client being in the office. That upon the 2nd Respondent releasing the Client his request to the Claimant was dismissed and instead she took a seat and attempted to throw it leading to the 2nd Respondent to reach for the chair to avoid being hit. The Claimant's commotion with the 2nd Respondent led two other members of staff to intervene but the claimant was still charging claiming that she was pregnant yet she was being assaulted. The contents of paragraph 17 and 18, 19 are strenuously denied. The Claimant's allegations as to her situation being known to Ms. Kopiyo is speculative and the Claimant shall be put to strict proof. The Claimant having been restrained by two people if a chair was thrown to her would have first hit them before landing on her. The Claimant despite being restrained still attempted to follow the 2nd Respondent into his office. The 2nd Respondent aver that the Claimant created her own uncomfortable conditions in that she reported late for work. overstayed for lunch and was doing some of her own business at the workplace during work time, therefore fell behind in her work, thus causing her own pressure due to non-performance. The 2nd Respondent is a stranger to the averments in paragraph 21, 22 and 23 and denies that the Claimant was admitted as alleged or at all. That further the 2nd Respondent makes no admission of the allegations contained in paragraph 23 and shall put the Claimant to strict proof. The 2nd Respondent is a stranger to the contents of paragraph 24 and 25 are denied and the Claimant shall be put to strict proof. The 2nd Respondent shall aver that in response to paragraph 26 that the complaint to the police was malicious with the intent to malign the 1st and 2nd Respondent and to avert disciplinary action being taken against the Claimant for her insubordination. The 2nd Respondent avers in response to paragraph 27 that the Complaint to the law society of Kenya was malicious and after consideration of the same the Society declined to proceed with the same. The Claimant has repeatedly caused to be published on social media platforms like Facebook disparaging and malicious post which the 2nd Respondent reserves his right to seek redress for the same. The 2nd Respondent in response to paragraph 29 and 30 averred that the Law Society declined to proceed with the Claimants complaint upon receipt of the 2nd Respondent. The 2nd Respondent denies the contents of paragraph 33 and shall put the Claimant to strict proof that she was assaulted and battered. The Claimant allegations remained unproved and are subject to determination of a competent court. The 2nd Respondent makes no admissions of the allegations by the Claimant and shall put the Claimant to strict proof that the acts alleged were intentional and the negligence and breach of contract are denied. The 2nd Respondent denies the allegations contained in paragraph 34 and shall put the Claimant to strict proof that. The 2nd Respondent denies the contents of paragraph 35 that the Claimant was assaulted and battered and that the doctrine of vicarious liability has no application. That the allegations of assault and battery contained in paragraph 36 are denied. The 2nd Respondent avers that the Claimant having been involved in acts of insubordination purported to resign to avert an inquiry as to what transpired on the 13th July 2017. The 2nd Respondent avers in response to paragraph 36-39 that the Claimant failed to give notice of her termination of her employment and the Claimant was paid her salary up no September 2017 inspire of the Claimants breach. The 2nd Respondent denies the contents of paragraph 42-47 of the Claimants statement of claim that she was assaulted and battered and that her place of work was unsafe. The 2nd Respondent shall put the Plaintiff to strict proof of the allegations that the Claimant was discriminated and that she suffered emotionally and or lost her dignity. The 2nd Respondent admits the existence of criminal case and as relates to the LSK, the same has no basis as the LSK has made a determination. Save as has been expressly admitted hereinabove, the 2nd Respondent denies each and every allegation contained in the Statement of Claim as if the same had been set out herein and reversed seriatim. The claims have no legal and or factual basis. Notice of Preliminary Objection directions 28.The court directed that the Notice of Preliminary Objection by the 2nd respondent be canvassed vide submissions for determination under the judgment. Hearing and evidence 29.The claimant’s case was heard before me on the 3rd June 2025. The claimant called as its witness Police constable No. 90980 Zachary Munene. He produced a Police Book abstract which he said had been issued to the claimant. He told the court the report was made on 22nd July 2015 at Kilimani police station. The officer had since been transferred to Nyeri County. He told the court the claimant had made a report of harassment against one Job Ochieng of Ogolla Okello advocates. He produced the medical report as C-exhibit 20. He was cross-examined by counsel for the respondents, Mr. Ogembo. The claimant testified on oath and adopted her witness statement dated 18th June 2018 and further witness statement dated 9th December 2025 as her evidence in chief. She produced documents under the claimant’s list of documents dated 19th September 2017 as exhibits 1-16 and list dated 18th June 2018 as exhibits 17-20, list dated 16th May 2023 as exhibits 21 ad list dated 9th December 2024 as exhibits 22-23. The claimant was cross-examined by counsel for the respondents. 30.The respondents’ case was heard before me on 13th November 2025. RW1 was Job Ochieng, the 2nd respondent. He adopted his witness statement dated 18th June 2018 as his evidence and relied on his documents produced as exhibits 1-3 (page 83 of the respondents’ bundle). He was cross-examined by counsel for the claimant, Burugu. On the same date, RW2 was Daniel Ochieng Ogola, the employer/1st respondent, who adopted his witness statement dated 18th June 2018 as his evidence in chief. He relied on their documents listed under the same date. He was cross-examined by counsel for the claimant. Determination 31.The parties filed written submissions. Issues for determination 32.The court having heard the case discerned the issues for determination in the suit to be as follows-a.Whether the court had jurisdiction to hear the claim as against the 2nd respondent?b.Was the Claimant's employment contract constructively terminated?c.Did the 1st Respondent violate the Constitutional rights of the Claimant?d.Is the Claimant entitled to the remedies prayed for?e.Is the 1st Respondent entitled to the Counterclaim? Whether the court had jurisdiction to hear the claim as against the 2nd respondent? 33.The 2nd Respondent’s Objection dated 27th May 2025 seeks to have the claim struck out against him on the grounds that the court lacks jurisdiction to hear the case against him. In support of this objection, the respondent submitted that by a Preliminary Objection dated 27th May 2025, the 2nd Respondent contended that this Honorable Court lacks jurisdiction to hear and determine the matter as against him because there was no employer-employee relationship between him and the Claimant sufficient to invoke this court's jurisdiction. It is undisputed that the Claimant was employed by the 1st Respondent, as admitted in Paragraph 4 of the Statement of Claim, where the Claimant states she was employed as a Secretary by the 1st Respondent around October 2011. Furthermore, Paragraph 3 confirms that at all material times, the 2nd Respondent was also employed by the 1st Respondent. During cross-examination, the Claimant affirmed that she understood her employer was at all times the 1st Respondent. The combined reading of Paragraphs 3 and 4 indicates that both the Claimant and the 2nd Respondent were employees of the 1st Respondent. The pleadings, therefore, suggest that no employer-employee relationship exists between the Claimant and the 2nd Respondent, as they are both employees. In this case, the Claimant has sued the 2nd Respondent and seeks substantive remedies against him on the same basis as her employer. Section 12(1)(a) of the Employment Act grants this Honorable Court jurisdiction to hear disputes related to employment between an employer and an employee, but it does not extend to disputes between employees. The Supreme Court case of Odongo v Clerk, Nakuru County Assembly & 5 others [2024] KESC 29 (KLR) supports this, illustrating that jurisdiction under the ELRC arises from an employment relationship, which is absent between employees. Only the High Court has unlimited jurisdiction over criminal matters or rights infringements between employees, especially when criminal in nature or involving constitutional rights violations. The Claimant attempts to raise issues of assault and constitutional rights, which the Supreme Court in Samuel Kamau Macharia v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR) clarified can only be entertained within the Court’s constitutional or legislative jurisdiction. The Claimant argues, in paragraphs 6 to 16 of her submissions, that the 2nd Respondent was a 'necessary party.' We argue that the concept of a 'necessary party' in employment law must be applied cautiously and differently from civil cases, as the identity and relationship of the parties define this court’s jurisdiction under section 12 of the Employment and Labour Relations Court Act. Without an employment relationship, adding another party as a 'necessary party' under section 12(1)(a) is inapplicable. This court's jurisdiction is limited to disputes between employers and employees or trade unions. The Claimant's claim against the 2nd Respondent as a personal employee does not meet this criterion. Her attempt to treat the 2nd Respondent as an employer in her submissions, without amending her pleadings, is barred. This principle was affirmed in In re Estate of Prisca Ong'ayo Nande (Deceased) [2020] KEНС 6553 (KLR). Pleadings must align with evidence, and where the identity of the employer is clear, the court generally will not entertain claims against individuals not recognised as an employer in the contractual or statutory framework, as exemplified in Janet Pisoi Kikayaya v Local Authorities Provident Fund & another [2021] KEELRC 1125 (KLR). The claim against the 2nd Respondent as an employee remains an independent claim, supported by the letter dated 14th August 2017, which directly addresses the 2nd Respondent for assault and battery against the Claimant, stating: 'On 13th July 2017, you assaulted and battered our client at the officers of your employer Ms. Ogolla Okello & Company Advocates......Our instructions are to demand, which we hereby do, that you admit liability to our client for assault, battery and violation of Articles 25(a), 29(f), 28, 29(c) and 29(d) of the Constitution...' The Claimant, in paragraphs 17 to 22 of her written submissions, asserts the 2nd Respondent was an employer, relying on various labour statutes. However, her pleadings explicitly state in Paragraphs 3 and 4 that the 2nd Respondent was an employee of the 1st Respondent, and she has identified her employer clearly. Paragraph 34 describes torts of battery and assault arising from the 2nd Respondent's acts during employment, and Paragraph 35 asserts the 1st Respondent’s liability for those acts. The pleadings do not include claims against the 2nd Respondent as an employer but as an employee. The attempt to re-characterise the 2nd Respondent as an employer in submissions without amending pleadings is barred, as confirmed in In re Estate of Prisca Ong'ayo Nande. Under the law, a party is bound by their pleadings, and evidence must align with them to produce a valid decision, as demonstrated in Janet Pisoi Kikayaya. Courts have also held that where the employer’s identity is unambiguous, parties cannot seek to broaden or alter that relationship through later claims or joinder, as exemplified in the case involving the Chief Executive Officer in Janet Pisoi Kikayaya. The court’s jurisdiction is confined to what is established in the pleadings and statutory law, and cannot be extended through generic or extralegal means. 34.Conversely, the petitioner submitted as follows- The Claimant filed brief grounds of opposition dated 30th May 2025. By the very nature of this suit, it cannot be determined without the involvement of the 2nd Respondent. In fact, had the 2nd Respondent not been sued, the Claimant would have had a difficult time establishing her case, given that the originator of the acts of assault was the 2nd Respondent. In law, the 2nd Respondent is both a proper and a necessary party. That under employment law, the 2nd Respondent stood in the position of an employer in conjunction with the 1st Respondent. It is now well settled that where the Employment and Labour Relations Court Procedure Rules are silent, this Court has resulted to the Civil Procedure Rules where appropriate. The petitioner relied on the Court of Appeal decision in TNT Express Worldwide (Kenya) Limited v Timothy Graeme Steel [2022] KECA 881 (KLR) where it was held as follows: “27. It is noteworthy that this Court has not made any direct pronouncements on the applicability of the Civil Procedure Rules in Employment and Labour Relation cases, especially in respect of orders 36 and 28.However, in the case of Dock Workers Union Kenya vs Kenya Ports Authority (Civil Appeal No. 112 of 2019) [2021] KECA 87 (KLR) on an issue concerning res judicata on which the Employment and Labour Relations Court rules are silent, this Court did not hesitate to adopt the provisions of section 7 of the Civil Procedure Act to uphold a preliminary objection. In effect, the inference that can be drawn from the above cases is that courts have not shied away from applying relevant provisions of the Civil Procedure Act and rules, where necessary, to employment disputes, which is in line with their duty to ensure that the ends of justice is served, and to prevent the making of orders in vain. So that, where it is established that the ELRC rules and regulations have come up short of provisions that would aid in the making of such orders, nothing precludes the ELRC from relying on available Civil Procedure provisions to address the extant gaps. Furthermore, since section 12 (3) (iii) of the Employment Act specifies that, where appropriate, the court can assess the case and make such orders as it deems fit, and rule 17 of the Employment and Labour Relations Court (Procedure) Rules empowers the court with jurisdiction to address applications and issue interlocutory orders, it goes without saying that these provisions, when coupled with relevant provisions of the Civil Procedure rules, grant the court the necessary leeway to make orders that would ensure that the ends of justice are served.” Order 1 Rule 3 of the Civil Procedure Rules provides as follows: “3. Who may be joined as defendants All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons any common question of law or fact would arise.” Order 1 Rule 5 of the Civil Procedure Rules provides as follows: “ Defendant need not be interested in all relief claimed It shall not be necessary that every defendant shall be interested as to all the relief claimed in any suit against him.” 10.Order 1 Rule 7 of the Civil Procedure Rules provides as follows: “ When plaintiff in doubt from whom redress to be sought Where the plaintiff is in doubt as to the persons from whom he is entitled to obtain redress, he may join two or more defendants in order that the question as to which of the defendants is liable, and to what extent, may be determined as between all parties.” Order 1 Rule 10(2) of the Civil Procedure Rules provides as follows: “The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.” The Employment and Labour Relations Court Procedure Rules applicable to this dispute at the time of filing were the 2016 Rules which did not have equivalent provisions as the ones in above in the Civil Procedure Rules. It is well understood that a party may be enjoined in a suit under two categories, which is what the foregoing provisions codify from the common law, that is: a) A necessary party who is a party whose presence is required to enable the Court effectively and completely adjudicate upon all the questions involved in the suit. b) Proper party who is a party who has an identifiable stake, duty or interest in the proceedings. For this suit, there is no doubt that the joinder of the 2nd Respondent was required to, firstly, enable clarity on the issues raised by the Claimant. The 2nd Respondent’s actions are inextricably linked to this suit. This makes him a proper party. However, even more importantly, he is a necessary party because reliefs are sought directly against him and he is liable to be treated as an employer under the employment law context. To demonstrate these two positions, we rely on the following authorities. In Mohamed Arshad Ansari V Capcom Limited & Another [2024] KEELRC 2319 (KLR) M Mbaru, J dismissed an application to strike out a Respondent and held as follows: “14. Also, under Order 1 Rule 10(2) of the Civil Procedure Rules, the joinder of a respondent must adhere to the following principles; 1. There must be a necessary party. 2. It must be a proper party. 3. In the case of the defendant there must be a relief owing from that defendant to the claimant 4. The ultimate order or decree cannot be enforced without his presence in the matter. 5. The presence is necessary to enable the Court effectively and completely adjudicate upon and settle all questions involved in the suit. 15. These principles are outlined in the case of Departed Asians Property Custodian Board v Jaffer Brothers Ltd [1999] 1 EA 55 it was held as follows: A clear distinction is called for between joining a party who ought to have been joined as a defendant and one whose presence before the Court is necessary in order to enable the court effectually and completely adjudicate upon and settle all questions involve in the suit. A party may be joined in a suit, not because there is a cause of action against it, but because that party’s presence is necessary in order to enable the court effectually and completely adjudicate upon and settle all the questions involve in the cause or matter…For a person to be joined on the ground that his presence in the suit is necessary for effectual and complete settlement of all questions in the suit one of two things has to be shown. … 16. In Civicon Limited v Kivuwatt Limited and 2 Others [2015] eKLR the court held that; … any party reasonably affected by the pending litigation is a necessary and proper party, and should be enjoined…from the foregoing, it may be concluded that being a discretionary order, the court may allow the joinder of a party as a defendant in a suit based on the general principles set out in Order I rule 10 (2) bearing in mind the unique circumstances of each case with regard to the necessity of the party in the determination of the subject matter of the suit, any direct prejudice likely to be suffered by the party and the practicability of the execution of the order sought in the suit, in the event that the plaintiff should succeed. We may add that all that a party needs to do is to demonstrate sufficient interest in the suit, and the interest need not be the kind that must succeed at the end of the trial. 17. Hence, unless a party is far removed from the issue in dispute, the court will retain such party to assist in the proceedings to enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit”. The foregoing supports the submission that the 2nd Respondent is in the first instance a proper party. Even more importantly is the fact that the 2nd Respondent is actually deemed to be an employer by employment law and hence a necessary party. In Lucy Nyandia Mwangi V Mathenge And Muchemi Advocates [2013] KEELRC 355 (KLR) Rika J found a law firm associate to be an employer. In deciding the case, he held as follows: “13. An employer is defined both by statutory law and the common law. The Employment Act 2007, the Labour Relations Act 2007 and the Industrial Court Act 2011 define an employer to include, “any person, public body, firm, corporation or company, who or which has entered into a contract of service to employ any individual and includes the agent, the foreman, manager or factor of such person, public body, firm of corporation.’’ This makes is possible for other persons acting for the principal employer to be held to be employers themselves. Managers, agents and factors in businesses can be employers. An Associate or Manager in a Law Firm can be an employer. An Associate or Manager who exercises decisional control; defines the work to be done by the employees; controls the tools of trade of the business; and who perhaps even pays the employees their salaries, can be deemed to be an employer. The law deliberately broadens the definition of an employer so that the employee is not technically barred from accessing redress for employment wrongs, from employers who hide behind intricate legal and business formations.” Also in P O V BOARD OF TRUSTEES, A F & 2 OTHERS [2014] eKLR (which happens to be a gender based violence claim) Rika J held as follows: “14. Was the 2nd Respondent an ‘Employer’ of the Claimant? An ‘Employer’ in Sections 2 of the Employment Act 2007, the Labour Relations Act 2007, and the Industrial Court Act 2011 now in place, uniformly define an ‘Employer’ as ‘any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes agent, foreman, manager or factor of such person, public body, firm, corporation or company.’’ An ‘Employee’ is likewise uniformly defined as ‘a person employed for wages or salary and includes an apprentice and an indentured learner.’ The evidence of the Claimant, which was not contradicted, was that she was interviewed and employed by J. He signed the contract of employment for and on behalf of the 1st Respondent. He is described in that contract as the Executive Chairman. No other Officers of the 1st Respondent were introduced to the Claimant by J. The 2nd Respondent transacted business, could employ and dismiss an employee, on behalf of the 1st Respondent. The 1st Respondent remained faceless. Jim, in the view of this Court was a factor, agent, manager, or foreman of the A for B L H. He acted for the Association, directing its business, and was an ‘Employer’ of the Claimant within the legal definition given above. He would also be deemed an ‘Employer’ under other parameters. The 2nd Respondent had the right to control the work processes. The Claimant reported to him, and he directed her in the discharge of her role. The Claimant was to report to Jim in case of falling ill, or being otherwise incapacitated. She was accountable to him. Under the common law, he would be deemed to be her Employer. She was economically dependent on the two Respondents, for as long as the contract lasted. The 2nd Respondent paid her monthly salary from the 1st Respondent’s kitty. Adopting the common law test, the economic reality test, and even the hybrid test which focus on who has the right to control the manner of the Worker’s performance, the conclusion inevitably would be that J was the Claimant’s Employer. He recruited her, defined her work, directed her in the performance of her duty, paid her salary, and provided her with an Office at Runda, and accompanied her to South Africa for work-related Conference.’ The 2nd Respondent was properly brought to Court as an Employer of the Claimant. The Work Injury Benefit Act defines an employer as follows: “4.(1) …………. any person who employs an employee and includes― (a) the legal personal representative of a deceased employer; (b) any person controlling the business of an employer; and (c) the Government. The Labour Relations Act defines employer as any person, public body, firm, corporation or company, who or which has entered into a contract of service to employ any individual, and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company. From the forgoing, there leaves no doubt that the 2nd Respondent who was the senior most after the 1st Respondent can be deemed to be an employer. In fact, this issue is well known in the employment law as the putative employer doctrine. An employer is not just the party paying a salary, but the party exercising control, supervision, and directing its work. The 2nd Respondent fits this Bill absolutely. In Wasilwa V Judicial Service Commission; Kenya Union Of Domestic, Hotels, Educational Institutions, Hospitals And Allied Workers & 3 Others [2024] KEELRC 1071 (KLR) a three Judge bench of this Court held as follows: “54. Section 2 of the Employment and Labour Relations Court Act defines an employer as: any person, public body, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, corporation or company; 55. The same definition is given under section 2 of the Employment Act, 2007. 56. What the definition suggests is that apart from the real or legal employer, other persons or entities acting at the behest of the real or legal employer would for purposes of the law qualify as an employer. 57. The definition has given recognition to a doctrine which has found acceptance under the common law; the doctrine of a putative employer. 58. Under our law, the putative employer would include an agent, foreman, manager or factor of the real or legal employer.” In light of the foregoing, we submit that the Preliminary Objection has no merit. The 2nd Respondent stood in the position of an agent of the 1st Respondent and therefore an employer, although the principal employer was the 1st Respondent. The 2nd Respondent cannot escape joinder in this suit by waving the employee card. He was not a mere employee. Decision on the Preliminary Objection 36.I find it is not in dispute that the employer of the claimant was the 1st respondent. It is also not in dispute that the 2nd respondent was a supervisor of the 1st respondent. It is also not in dispute that the claimant accused the 2nd respondent of violence, which forms the basis of the current dispute. The court finds that the joinder of a wrong party cannot serve as a reason to deny the court's jurisdiction. Before the court is an employment dispute involving the 2nd respondent personally, as the alleged culprit accused of assaulting the claimant at the workplace. I upheld the decision in In Civicon Limited v Kivuwatt Limited and 2 Others [2015] eKLR, where the court held that; … any party reasonably affected by the pending litigation is a necessary and proper party, and should be enjoined… From the foregoing, it can be concluded that, as a discretionary order, the court may permit the joinder of a party as a defendant in a suit based on the general principles set out in Order I rule 10 (2), taking into account the unique circumstances of each case concerning the necessity of the party in determining the subject matter of the suit, any direct prejudice the party may suffer, and the practicality of executing the order should the plaintiff succeed. We may add that all a party needs to do is demonstrate a sufficient interest in the suit, which need not be of a nature that guarantees success at trial. 17. Therefore, unless a party is far removed from the issues in dispute, the court will retain such a party to assist in proceedings, enabling the court to effectively and fully adjudicate and settle all questions involved. The court upheld the decision to apply these principles in the current suit. The court, by finding it has jurisdiction to determine a dispute against the 2nd respondent, who is a co-employee and immediate supervisor instructing the claimant, is further guided by the decision of the Supreme Court in Kenya Tea Growers Association & 14 others v National Social Security Fund Board of Trustees (Koome; CJ & P, Mwilu; DCJ & V-P, Ibrahim, Wanjala, Njoki, Lenaola & Ouko, SCJJ) where the Court observed that the ELRC had jurisdiction, considering the issues raised that affected both employer and employees. The court asked, ‘[83] Can it be said that the parties herein are not among the disputants contemplated under Section 12(2) of the ELRC Act?’ In the present dispute, the claimant alleged to have been assaulted by a fellow employee, the 2nd respondent, who was the instructing employee at the workplace and was joined as a respondent. I find the 2nd respondent was a necessary party, and most importantly, the court had jurisdiction over the allegation of assault at the workplace. The 2nd respondent was accused of the assault. I find no merit in the Notice of Preliminary Objection, and the same is disallowed. Costs in the cause. Was the Claimant's employment contract constructively terminated? 37.The facts of the case were not in dispute. On 13th July 2018, an incident of violence occurred on the shopfloor of the first respondent’s law firm involving the claimant and the second respondent. The claimant asserted she was assaulted, injured, reported to the police station, and subsequently admitted to hospital. The claimant did not return to work. On 31st July 2017, through her advocates, she informed the first respondent that on 13th July 2017 she was assaulted and battered, injured at his office by his counsel Mr. Job Collins Odhiambo, for failure to complete assigned work. She stated she was admitted to hospital and placed on bed rest for two weeks, ending on 1st August 2017. The claimant claimed the employer was aware of criminal proceedings against the second respondent. She also raised the issue of having been assaulted by the same counsel earlier in 2015 and noted that no action was taken. The letter stated, ‘arising for the above incident, it is clear that conditions have been made so hostile in your firm that it is no longer tenable for our client to continue being your employee. you have constructively dismissed our client from service with yourselves’ (page 40 of the claimant’s bundle). It was not in dispute that the claimant never resigned from her employment, and she relied on the letter of 31st July 2026, submitting that the advocate was a recognised agent. 38.The respondent, on the other hand, submitted that whereas the claimant reported the 2nd respondent to the Law Society of Kenya and the police, at no time did she report to the employer. I did not find any evidence of the claimant having reported to the employer. However, the 1st respondent, during re-examination, told the court that on the date of the incident he was out of the office and, on the following day, he was informed of the incident, after which he asked the persons present to write statements. He expected the claimant to return and give her version of the events, but she never did. The 1st respondent acknowledged receipt of the claimant’s advocate’s letter dated 31st July 2017, which indicated she stood constructively dismissed on account of assault and battery. The Court of Appeal, Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] eKLR, set out the principles for constructive dismissal as follows: - ‘The legal principles relevant to determining constructive dismissal include the following:-a.What are the fundamental or essential terms of the contract of employment?b.Is there a repudiatory breach of the fundamental terms of the contract through conduct of the employer?c.The conduct of the employer must be a fundamental or significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract.d.An objective test is to be applied in evaluating the employer’s conduct.e.There must be a causal link between the employer’s conduct and the reason for employee terminating the contract i.e. causation must be proved.f.An employee may leave with or without notice so long as the employer’s conduct is the effective reason for termination.g.The employee must not have accepted, waived, acquiesced or conducted himself to be estopped from asserting the repudiatory breach; the employee must within a reasonable time terminate the employment relationship pursuant to the breach.h.The burden to prove repudiatory breach or constructive dismissal is on the employee.Facts giving rise to repudiatory breach or constructive dismissal are varied. ………. 39……..In constructive dismissal, it is not mandatory that the employee must leave immediately without notice, the employee may leave immediately or may terminate the contract with notice; notice or no notice the departure must be within a reasonable time and the employer’s conduct must be the effective cause of leaving or termination. Notice of termination is not necessarily a bar to a claim based on constructive dismissal.’’ I upheld the decision to apply in the instant suit. 39.The respondents denied the assault and even got witnesses to attest that it was the claimant who was the aggressor. I find the fact of the assault of the claimant had been decided with finality by the trial court in Kibera Law Courts Criminal Case No. 1862 of 2017 R v Job Odhiambo Ochieng (2nd respondent herein),(final subject to any subsequent appeal) where the charge was causing actual bodily harm contrary to section 251 of the Penal Code. Hon C.M. Njagi(PM) upon hearing the case held- ‘..that the prosecution has proved their case beyond all reasonable doubt that the accused Job Ochieng Odhiambo did assault the complainant.’’ The Magistrate court convicted the 2nd respondent (Job) of the offence of causing actual bodily harm. (page 209 of the claimant’s bundle). The claimant stated that in 2015 she was also assaulted the 2nd respondent but the case was withdrawn, The claimant called CW1 Police Constable who produced a police report of 2018. The 1st respondent denied knowledge of the 2015 assault claim. The witness (CW1) produced the report of 2018 of event dated 22nd July 2015 of which he said it was pursuant to Court Order. The court did not find the evidence by CW1 credible for the inconsistency of dates. The Court of Appeal decision in Ligaga case (supra)relied on the decision of Lord Denning in Western Excavating ECC Ltd v Sharp (1978) 2 WLR 344, who held as follows on constructive dismissal: -“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.” The court notes the words used of – ‘If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so then he terminates the contract by reason of the employer’s conduct.’ The Court of Appeal in Ligaga case(supra) also held that a Notice of termination is not necessarily a bar to a claim based on constructive dismissal. 40.The court, upon hearing the case, confirmed that the actual bodily harm or violence against the claimant on the shop floor by the second respondent was true. The court holds that the blatant violence against the claimant on the shop floor was a severe and fundamental breach of the employment contract. An employer has a strict and non-negotiable duty to provide a safe working environment. In my view, the failure and refusal of the claimant to return to the shop floor following the assault and her admission to hospital for injuries that threatened her pregnancy provide a valid basis to conclude there was a constructive dismissal, and the claimant was entitled to consider herself discharged from the employment contract. The employer was duly informed of this via the advocates' letter dated 31st July 2017. 41.The 1st respondent demonstrated the attitude of a negligent employer who did not consider his responsibility to ensure a safe working environment at his law firm as a legal duty. He was informed on the day after the incident and showed no effort to hold the 2nd respondent accountable for the assault. A reasonable employer would have promptly removed the 2nd respondent from the work floor on a temporary basis pending investigation, as the 1st respondent claimed to be doing by requesting statements from witnesses of the incident. Having failed to do so, it was unreasonable for the 1st respondent to expect the claimant to return to the shop floor where the aggressor remained her immediate supervisor in terms of assigning work. The employer's duty to ensure zero violence in the workplace is embodied in the International Labour Organization (ILO), the Violence and Harassment ILO Convention 190, which recognises that violence and harassment at work constitute a human rights violation, threaten equal opportunities, are unacceptable, and are incompatible with decent work. The Convention further affirms the right of every individual to a work environment free from violence and harassment, including gender-based violence and harassment. Article 1(1)(a) of C190 defines “violence and harassment” in the workplace as- ‘a range of unacceptable behaviours, practices, or threats, whether a single incidence or repeated, aimed at, resulting in, or likely to result in physical, psychological, sexual, or economic harm, and includes gender-based violence and harassment’. Kenya is not a signatory to the Convention, however, the convention offers best practice for the court to apply. The court is persuaded to adopt Recommendation 206(Convention 190) (soft law) in this decision. Recommendation 7 states: ‘Members should, as appropriate, specify in laws and regulations that workers and their representatives should participate in the design, implementation, and monitoring of workplace policies referred to in Article 9(a) of the Convention, and such policies should:'(a)state that violence and harassment will not be tolerated;(b)establish violence and harassment prevention programmes with, if appropriate, measurable objectives;(c)specify the rights and responsibilities of the workers and the employer;(d)contain information on complaint and investigation procedures;(e)provide that all internal and external communications related to incidents of violence and harassment will be duly considered, and acted upon as appropriate;(f)specify the right to privacy of individuals and confidentiality, as referred to in Article 10(c) of the Convention, while balancing the right of workers to be made aware of all hazards; and(g)include measures to protect complainants, victims, witnesses and whistle-blowers against victimization or retaliation.’ 42.Section 6 the Occupational Safety and Health Act, 2007 provides as a duty of occupier, in this case the 1st respondent, the following duty- ‘Every occupier shall ensure the safety, health and welfare at work of all persons working in his workplace.’ The 1st respondent violated the law by failing to ensure a violence-free work space. He admitted that, at the time of the incident, he did not have in place a human resource manual which would have stated, interalia, consistent with Recommendation 206 of C190(supra) -‘(a)that violence and harassment will not be tolerated;(b)establish violence and harassment prevention programmes with, if appropriate, measurable objectives;(c)specify the rights and responsibilities of the workers and the employer;(d)contain information on complaint and investigation procedures;(e)provide that all internal and external communications related to incidents of violence and harassment will be duly considered, and acted upon as appropriate;” 40.The 1st respondent denied having been called by the claimant after the incident, but the court believed the claimant because the issue was serious, and there was no way he would have failed to get the claimant's position or even check on her. The belief is supported by the fact that the 1st respondent admitted he was informed of the incident the next day and asked the witnesses to record statements. The respondents produced the said statements as evidence in the suit. Failure to call the claimant by the 1st respondent would be unreasonable on the part of the employer. The court held impression that the 1st respondent was an intelligent legal counsel who would have taken measures to protect his law firm. Indeed, he did so by obtaining statements from potential witnesses against the claimant while their memory was still fresh. In the upshot, the court, having evaluated the evidence placed before it, held that the claimant proved on a balance of probabilities a case of constructive dismissal by the 1st respondent. The termination is held as unlawful and unfair. Did the 1st Respondent violate the Constitutional rights of the Claimant? 41.The first respondent submitted as follows:- It is clear that the altercation occurred as a result of what the claimant said concerning her spouse. The trigger is not incidental to employment at all, and vicarious liability does not arise. In support of this proposition, we cite the decided case of Churchill v Premier, Mpumalanga (889/2019) [2021] ZASCA 16 (4 March 2021), where the court held: "But being assaulted as a consequence of something one says being misconstrued and offence being taken, is not ordinarily incidental to employment. The fact that the place where that occurred was the workplace, and the perpetrator or perpetrators of the assault were co-employees, does not alter that." In the present case, the assault took on racial and gendered overtones. The respondents' counsel was asked whether it would have made a difference to the argument if the assault on Ms Churchill had become overtly sexual. Aside from stating that each case depends on its own facts, there was no answer. Nonetheless, the nature and severity of the assault and the extent of the incursion upon the dignity and bodily integrity of the victim cannot be factors that determine whether it arose out of their employment. [See the Authority at Page...71....and Quote at Page...91....of the first and second defendant's list of authorities.] The issue of involving the wife of the second respondent as a taunt by the claimant was a matter outside employment, and the fact that it took place in the workplace outside working hours was merely coincidental. The altercation could have occurred elsewhere, as the motive of the altercation had nothing to do with employment. In support of this, we rely on the decided case of Twalo v Minister of Safety and Security and Another (317/05) [2009] ZAECHC 1; [2009] 2 All SA 491, where the court held: "The second defendant was motivated by personal malice towards the deceased, who had taunted him about the relationship the deceased had with his wife. The sole reason for the second defendant shooting the deceased was the existence of a private dispute between them. The fact that it took place while both were on duty as policemen and at their workplace was entirely coincidental. The shooting could have occurred, for that matter, at any other place unrelated to their work environment, as the motive for the shooting bore no causal relationship with their work." 42.Having established that the assault was proven beyond a reasonable doubt before a court of law (Kibera Law Courts Criminal Case No. 1862 of 2017 R v Job Odhiambo Ochieng ) and having found the 1st respondent was in breach of section 6 of the Occupational Safety and Health Act, 2007; I find that the first respondent had a duty to ensure a safe working environment. He failed to do so or even to take action against the aggressor, making the environment unsafe for the claimant to return to. I reject the invitation to justify the aggression. The second respondent's act of bodily harm violated the claimant’s rights related to the dignity of a human being, which the first respondent had a duty to protect and failed to do so. 43.The claimant suffered actual bodily harm inflicted by the 2nd respondent, an employee of the 1st respondent, on the shop floor. The 1st respondent did not take any action against the aggressor, and the 2nd respondent remained at the law firm as a senior associate with supervisory powers over the claimant and other workers. The assault at the workplace diminished the claimant's dignity as a human being. She was pregnant, and even if she were not, as the 2nd respondent claimed he was unaware and the court believed him, her pregnancy was less than three months. The claimant, as a human being, inherently deserves dignity. The physical cruelty inflicted on the claimant was an indignity of the worst kind in the workplace. In S vs Makwanyane and Another (CCT3/94) [1995] ZACC 3, the Constitutional Court of South Africa stated regarding the right to dignity as a fundamental value of the Constitution: “The importance of dignity as a founding value of the new Constitution cannot be over-emphasised. Recognising a right to dignity is an acknowledgement of the intrinsic worth of human beings: human beings are entitled to be treated as worthy of respect and concern. This right therefore is the foundation of many of the other rights that are specifically entrenched in the Constitution.” 44.The court finds the violent act was in violation of the constitutional rights of the claimant namely: –a)Right to inherent dignity and the right to have that dignity respected and protected as enshrined in Article 28.b)Freedom from torture, and cruel, inhuman and degrading treatment as enshrined in Article 29(f) as read with Article 25(a).c)Right not to be subjected to any form of violence from private (or public) sources as enshrined to Article 29(c).d)Right not to be subjected to torture in any manner, whether physical or psychological as enshrined in Article 29(d).e)The Right to reasonable working conditions as enshrined in Article 41(2) (b). (PO V BOARD OF TRUSTEES, A F & 2 OTHERS [2014] eKLR). Is the Claimant entitled to the remedies prayed for? 45.The claimant sought for the following prayers –a)A declaration that the Claimant was constructively dismissed and the constructive dismissal was wrongful, unfair and unlawful/illegal.b)A declaration that the Claimant's rights and freedoms under the following Articles of the Constitution were violated: Article 28, Article 29(c), Article 29(d), Article 29(f), Article 27(4),0 Article 41(2)c)Twelve month's salary in compensation for the constructive dismissal being Kshs. 516,000/=.d)General damages for battery.e)General damages for assault.f)Aggravated damages.g)Exemplary/punitive damages.h)General damages for violation of Constitutional rights in prayer (b) above at Kshs 10,000,000/=.i)Kshs 2,000,000/= being loss of medical cover for one year.j)Salary for three (3) months totaling Kshs 129,000/= being pay which was to be earned during maternity leave.k)Prorated leave for 6 months being Kshs 17,365/=1)Pay in lieu of notice for 18 days being Kshs 29,769/=.m)Cost of house help hired on an emergency basis from 13th July 2017 to 17th July @ 300 per day being Kshs 1500/=.n)Costs of the suit.0)Interest at 14% on the principal amount which the Court will award reckoned from the date of judgment or from the date which the Court shall deem fit until payment in full.p)Certificate of Service.q)Any further or better relief as the Honourable Court shall deem fit to grant. 46.The court held that the claimant proved a case of constructive dismissal and also found that her constitutional rights had been violated, including the non-derogable right under Article 25(a), namely ‘freedom from torture and cruel, inhuman, or degrading treatment or punishment.’ The court concluded that these violations were central to the right to dignity (Article 28). 47.On finding a constitutional violation, the court has the power to issue the following remedies under article 23(3) of the Constitution: ‘In any proceedings brought under Article 22, a court may grant appropriate relief, including—(a) a declaration of rights; (b) an injunction; (c) a conservatory order; (d) a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24; (e) an order for compensation; and (f) an order of judicial review.’ See also section 12 of the Employment and Labour Relations Court Act. 48.The court finds that the claimant is entitled the following remedies as against the 1st respondent, the employer - a. A declaration that the Claimant was constructively dismissed and the constructive dismissal was wrongful, unfair and unlawful/illegal. b. A declaration that the Claimant's rights and freedoms under the following Articles of the Constitution were violated: Article 25(1)(a) article 28, Article 29(c), Article 29(d), Article 29(f), Article 27(4), Article 41(2). Having so found, the claimants asked for compensation of Kshs. 10 million. The violation was severe and related to non-derogable right of freedom from torture and cruel, inhuman or degrading treatment or punishment (Article 25). The claimant relied on the decision in P O v Board of Trustees, A F & 2 others [2014] KEELRC 623 (KLR) where the court found the facts were comparable being – ‘the 2nd Respondent explained to the Claimant that he wished them to see some seedlings at Cape Town, which could be sold in Kenya. While there, he started to make sexual innuendos, telling the Claimant that he found her attractive. She did not respond to him. The following day, he hired a small car and the Pair left at 6.00 a.m. for a journey that ended at 8.00 p.m. In the course of the journey, J got very angry with P, saying he had spent a lot of money on her. He questioned why she had rebuffed his proposal for a romantic lunch. He clenched his fists and started hitting P.’ In the said case there was physical violence against the victim and she was awarded as follows- ‘The Respondents shall pay to the Claimant general damages for sexual harassment, unfair and wrongful termination, at Kshs. 3,000,000;’ The court found the decision persuasive. On the complaint for the violation of constitutional rights, I find the award in P O v Board of Trustees, A F & 2 others [2014] KEELRC 623 (KLR) (supra)was all-inclusive. I found the violations in the instant case were grave and posed a threat to the life of the petitioner. It is totally unacceptable to the court and in a civilised society that men would be allowed to batter women at the workplace to get them to submit to their whims or as punishment for mistakes at the shop floor. While this appears acceptable in the patriarchal society we live in, it is totally unacceptable at the workplace. Those mistaken patriarchal rights of beating women cannot be transferred to the workplace. Violence cannot be used as a disciplinary measure even with a rude employee. An employer who condones and abets the abuse at the shop floor must suffer consequences of compensation to the employee. That said compensation is not to punish the employer but to vindicate the rights of the employee. The Court of Appeal so held in Chief of Kenya Defence Forces & another v Etyang [2025] KECA 1409 (KLR) where it upheld the decision in Gitobu Imanyara & 2 others v Attorney General [2016] eKLR, where the Court of Appeal addressed the issue of compensation awards in constitutional petitions by emphasizing that damages for constitutional violations are not automatically granted but must be justified by evidence of harm suffered. This Court stated:- “The primary purpose of a constitutional remedy is not compensatory or punitive but to vindicate the rights violated and to prevent or deter any future infringements. The appropriate determination is an exercise in rationality and proportionality. In some cases, a declaration only will be appropriate to meet the justice of the case, being itself a powerful statement which can go a long way in effecting reparation of the breach, if not doing so altogether. In others, an award of reasonable damages may be called for in addition to the declaration." On the quantum of the compensation the Court of Appeal in Etyang case(supra) relied on a Supreme Court decision as follows- ‘Further, the Supreme Court in the case of Peter Ndegwa Kiai t/a Pema Wines and Spirits v Attorney General & 2 others (supra) stated, “the guiding principle to be gleaned from these decisions is that an award of general damages in constitutional petitions is discretionary and will depend on the circumstances of each case, and can indeed be granted as compensation for proven loss.” This principle underscores that the focus of constitutional remedies is to uphold and protect rights rather than to provide excessive or unwarranted compensation. From the proceedings, compensation was intended to address broader violations and the petitioner’s ongoing needs.’ 49.The court of appeal in the Etyang case further observed- ‘We echo the observation in the case of Gitobu Imanyara & 2 others v AG (supra), which observed that the primary purpose of a constitutional remedy is not compensatory or punitive but to vindicate the rights violated and to prevent or deter any future infringements. The appropriate determination is an exercise in rationality and proportionality.’’ and further – ‘On the question of quantum, the Court considers various factors such as common law and decided cases. Articulating this position, this Court in the case of OI Pejeta Ranching Limited v David Wanjau Muhoro [2017] eKLR, stated: “In our jurisdiction however, the question of assessment of damages will have to be guided by amongst others, common law and decided cases. Assessment of quantum of damages is a matter for the discretion of the trial judge, which must be exercised judicially [sic] and with regard to the general conditions prevailing in the country, such as inflation, and also prior relevant decisions."’ Taking all the foregoing into account and the fact of the grave violations of the constitutional rights of the claimant and the threat to life having been pregnant at the time, taking into account inflation and the decision in comparison being PO V Board of Trustees, A F & 2 Others [2014] eKLR where the court held the facts were comparable and the court awarded Kshs. 3 million, I award Kshs. 5,000,000 (Five million Kenya shillings) compensation as vindication of the violated constitutional rights of the claimant. 50.On the constructive dismissal, Section 49 of the Employment Act applied. The claimant had worked for 6 years. There was no evidence of misconduct while at employment. The respondents allege she was insubordinate and failed to do her work, but there is no record of any warning or disciplinary action. The court held those to be mere allegations. The court in the circumstances found award of maximum compensation of equivalent of 12 month salary justified. It was not in dispute the monthly salary was Kshs. 43,000. Compensation is awarded for total sum of Kshs.516,000. 51.Regarding the prayer related to medical cover, the same applies to existing employees. The claimant admitted that the employer covered her medical expenses until 1st August 2027, when she was expected to return to work, but she chose to consider herself constructively dismissed. The claim concerning maternity post-employment has no basis. Medical provision is only for active employees. The same position also applies to the prayer for salary during maternity leave. The claimant admitted that her pregnancy was barely three months at the time of exit. 52.Regarding the prorated leave, the employer provided evidence that the claimant had applied for leave in 2017, scheduled from 17th July 2017 to 17th August 2017. The employer stated that he approved it on 28th August 2017 (page 30 of the respondent’s bundle). The claimant denied receiving approval. The court noted that the assault occurred before the start date of the annual leave. The 1st respondent admitted to knowing about the hospitalisation and even stated he expected her to return to give her version of events after discharge. The court finds that, due to the assault incident causing hospitalisation before the leave's start date, the said annual leave did not materialise. The claimant could only have been on sick leave. The court awards the prorated leave as sought, Kshs.17,365/- 54.Having held there was a constructive dismissal, the pay in lieu of notice for 18 days was granted, Kshs. 29,729. 55.The claim regarding the hiring of house help was for special damages requiring strict proof. The same was not proved and is disallowed. Counterclaim 56.The counterclaim by the 1st respondent was as follows-i.The Claimant was employed from 27th November 2011 as a secretary. Her final salary was Kshs.43,000.00/-. Her terms of employment are governed by the Employment Act, 2007. The 1st Respondent reiterates the contents of paragraphs 1-55 of the Statement of Defence above in this Counterclaim. The Claimant purportedly resigned on 31st July 2017 after receiving her July salary, claiming she had been constructively dismissed. However, the Claimant had sent a WhatsApp message to the 1st Respondent stating she would be on bed rest until 31st July 2017, which was within her leave days that would conclude on 1st August 2017. The 1st Respondent notified the Claimant that her resignation was irregular as she had not issued the required one-month notice or paid one month's salary in lieu of notice. The 1st Respondent continued to pay her salary until September 2017, when the Claimant, through her Advocates, wrote claiming she had quit and would reimburse her salary less bank charges. The 1st Respondent requests leave of court to refer to the said letter dated 22nd September 2017 for its full content and effect.ii.The 1st Respondent claims the amount of Kshs.240,000.00/- together with one month's salary in lieu of notice of Kshs.43,000.00/- which remains unpaid despite the same being demanded. The 1st Respondent prays that the suit be dismissed with costs and judgment to be entered in favour of the 1st Respondent and against the Claimant for:-(a)The sum of Kshs. 283,000.00/- with interest until payment in full.(b)Cost of the suit and interest thereon.(c)Interest on (b) and (c). 57.The court having found constructive dismissal, the claim by the 1st respondent for notice payment failed. The only claim which was proved and admitted by the claimant was Kshs. 150,000 issued on the 31st May 2016 (page 44 of the respondent’s bundle) and is allowed to be set off against the claimant’s compensation Conclusion 58.The claim is allowed and judgment entered against the 1st respondent, the employer, for the claimant as follows-a)A declaration that the Claimant was constructively dismissed and the constructive dismissal was wrongful and unfair.b)A declaration that the Claimant's rights and freedoms under the following Articles of the Constitution were violated: Article 25(1)(a) article 28, Article 29(c), Article 29(d), Article 29(f), Article 27(4), Article 41(2).c)compensation for constructive dismissal, maximum award of 12 months Ksh. 516,000.d)Compensation for violation of constitutional rights enshrined under Article 25(1)(a), Article 28, Article 29(c), Article 29(d), Article 29(f), Article 27(4), Article 41(2) awarded of Kshs. 5,000,000./-e)Prorated leave Kshs, 17,365/-f)Notice pay of 18 days Kshs. 29,769Total sum payable is Kshs. 5,563,134 less set off counterclaim of Kshs 150,000 thus payable sum of Kshs. 5,413,134/-g)Costs and interest at court rate from date of judgment.h)Certificate of service to issue pursuant to section 51 of the Employment Act. Counterclaim 59.Judgment is entered in the counterclaim for the 1st respondent against the claimant for the sum of Kshs, 150,000/- which is set off the judgment sum above. 60.It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 3RD DAY OF JULY, 2026.JEMIMAH KELI,JUDGE.In The Presence Of:Court Assistant: OtienoClaimant –Kagori Ms h/b BuruguRespondent – Muguha h/b Ogembo