'Introduction
1. This suit was lodged vide a Memorandum of Claim dated 22nd September, 2022, wherein, the Claimant seeks relief on account of:-
a) Unfair and unlawful termination
b) Failure to pay terminal benefits and accrued dues
c) Discrimination on grounds of gender
d) Sexual harassment and victimization
2. The Respondent filed a Response to the Memorandum of Claim dated 1st November, 2022 together with a Counter-Claim for Ksh.150,000 on account of notice.
3. Both the Claimant’s and the Respondent’s cases were heard on 17th March, 2025. The Claimant testified in support of her case, adopted her witness statement and produced documents filed as exhibits in the matter. The Respondent presented the evidence of Mr. Moses Mbithi John, their Human Resource Officer in support of their case.
4. The 2nd Respondent did not defend the suit.
5. Submissions were filed for both parties, and which have been duly considered.
The Claimant’s Case
6. The Claimant’s case is that she entered into a contract of employment with the 1st Respondent as a Sales and Marketing Accounts Manager for a period of 1 year, earning a salary of Kshs.130,000/= and benefits amounting to Kshs.50,000/=on 1st March 2019.
7. She states that on the 1st May 2019, she entered into another contract with the 1st Respondent as a Business Development Manager on a salary of Kshs.150,000/=.
8. The Claimant states that she was sexually assaulted and raped by the 2nd Respondent on 11th November 2019, at premises designated for accommodation by the 1st Respondent.
9. The Claimant states that she reported the incident to a Mr. Fred Peng, the 1st Respondent''s Country Manager through email, and later in person on 12th November 2019. She avers that Mr. Peng then suggested to have a meeting with her and the 2nd Respondent, but which meeting she declined.
10. It is her case that the 1st Respondent''s Chief Executive Officer then threatened to terminate her contract if she reported the incident to either the police or the media. She avers that she reported the incident at Athi River Police Station, and was issued with OB Number 35/14/11/2019, and advised to seek medical attention at Nairobi Women''s Hospital Kitengela, which she did and was issued with a filled PRC form, P3 form and a sick note.
11. The Claimant states that she then issued with a Notice to Show Cause on 17th November 2019, and was required to attend a disciplinary hearing on 25th November at 3:00pm at the 1st Respondent''s premises. She avers that she was also advised to take one or two witnesses with her on the hearing date.
12. The Claimant states that the disciplinary hearing was convened on the said date with the Claimant and her advocates present. The Claimant states that the conduct of the 1st Respondent''s representatives was unbecoming and hostile in manner aimed to attack her owing to the presence of her advocate, and his request for a handbook on sexual policy, hence she was not given a chance to be heard.
13. The Claimant states that the meeting was adjourned and was never reconvened. The Claimant states that she was issued with a copy of the handbook on sexual policy on 25th November 2019, and a termination letter dated 29th November 2019, but no copies of the disciplinary meeting minutes were furnished to her.
14. It is her case that on 9th December 2019, she appealed the termination to the Chief Executive officer, but did not receive a response.
15. On cross-examination, the Claimant told court that house No. 107 where the alleged sexual harassment and rape took place, was outside the 1st Respondent’s premises, but that meetings were frequently held in that house.
16. It is her evidence that she asked the 2nd Respondent for Kshs.3,500 on the same evening of the incident, and that she did not report the incident to the police immediately, but that she did report three days later.
17. It is her case that the 1st Respondent’s Director asked her not to report the incident. It is her further testimony that she sought compensation from the 2nd Respondent.
18. She told court that she saw a letter from the Director of Public Prosecution (DPP) indicating why the 2nd Respondent could not be charged with rape.
19. It is the Claimant’s further testimony that she was invited for a disciplinary hearing which she attended and asked for the rescheduling due to her advocates absence. She avers that she was given another hearing date.
20. It is her prayer that her claim be allowed as prayed.
The Respondent’s Case
21. It is the 1st Respondent’s case that the Claimant was hired on a probationary contract until 31st October, 2019, after which she was to be considered for a permanent role. It states that the Claimant was not confirmed as a permanent employee by that date, and that shortly thereafter, on 11th November, 2019, she made false allegations of sexual assault and rape.
22. It is the 1st Respondent’s case that the Claimant was issued a two-month Special Pass to work in Kenya while processing her Work Permit, but instead of working with the employer to obtain the permit, she relied on a third party and continued working illegally after her Special Pass expired on 22nd June, 2019. It states that the Claimant concealed this fact from the employer, despite knowing that her employment contract required valid immigration documents to remain employed.
23. It states further that the Claimant also misrepresented her immigration compliance status and refused the employer’s help in obtaining the proper Work Permit, making it her sole responsibility to secure legal authorization to work in Kenya.
24. It states that it later established that the Claimant and the 2nd Respondent had been engaging in consensual sexual relations since August 2019, and that CCTV footage shows them together after one such encounter, with the 2nd Respondent purchasing contraceptives while the Claimant waited outside.
25. It is the 1st Respondent’s position that on 11th November, 2019, the date the Claimant later alleged rape occurred, she was seen communicating amicably with the 2nd Respondent, asking for Ksh.3,500 to buy wine, while he explained he had spent his money on Postinor 2 (emergency contraception) following unprotected sex.
26. It avers that medical evidence did not show any vaginal tears, which would typically be expected in a case of forced intercourse. Based on this and the CCTV evidence, the Respondent claims the allegations were false and financially motivated, intended to target the company’s management for personal gain.
27. It is the 1st Respondent’s case that on 12th November, 2019, the Claimant demanded a twelve-month salary and threatened to expose false information to the media to damage the company’s reputation if her demand was not met. The Respondent argues that this shows she approached the Court in bad faith.
28. The Respondent further states that, although the employment relationship was already invalid in law, they still investigated the Claimant’s allegations against the 2nd Respondent before issuing a Show Cause letter that led to her termination. The 1st Respondent maintains that the Claimant impliedly terminated her own contract on 14th November, 2019, when she declared she was pursuing constructive dismissal, even before formally receiving the Show Cause letter on 17th November, 2019.
29. The 1st Respondent further argues that the Claimant was well versed in criminal justice procedures, having previously been a lecturer in Criminal Justice and organized conferences on rape and domestic violence in the UK, hence she was fully aware of the proper post rape reporting protocols, such as immediately seeking medical attention and reporting to the police. It avers further, that despite this knowledge, the Claimant waited four days after the supposed rape on 11th November, 2019, to file a police report, and only two days after demanding Ksh.1.8 million as compensation for constructive dismissal.
30. The Respondent states that the official investigations by the National Police Service and the Office of the Director of Public Prosecutions (ODPP), concluded that the Claimant’s allegations were malicious and financially motivated. It states that the Claimant intentionally omited this exculpatory evidence.
31. The 1st Respondent avers that the Claimant was given a fair internal hearing in accordance with the Constitution, the Employment Act, and the Fair Administrative Action Act. It states that she was granted extra time to respond, which she did both in writing and orally, but later frustrated the process.
32. The Respondent states that the Claimant gave false and contradictory information to the Court, noting that the CEO formally rejected her appeal in a detailed email dated 16th December, 2019.
33. The Respondent asserts that the Claimant knew and accepted the company’s Staff Handbook and policies, and that during the internal hearing, it was established that she had fabricated the sexual harassment and rape allegations.
34. The Respondent states that the Claimant was accorded a fair hearing and administrative action, as she not only addressed her response in writing, but she also had an in-person appearance together with a representative.
35. The 1st Respondent states that there is no outstanding amount owed to the Claimant who was unlawfully offering services since she knew she did not have the proper documentation to offer the services.
36. In respect of the counter-claim, the 1st Respondent’s states that the contract between it and the Claimant was already terminated by virtue of lack of a Work Permit, and the Claimant having already impliedly resigned with immediate effect when she informed the 1st Respondent on 14th November, 2019, that she was pursuing a case of constructive dismissal against it.
37. In light of the above, the 1st Respondent states that the Claimant owes it Ksh.150,000 for resignation without serving the notice period.
38. The 1st Respondent prays that the Claimant’s suit be dismissed with costs and its counter-claim allowed as prayed.
Analysis and Determination
39. The issues that present for determination are:-
i. Whether the Claimant was unfairly terminated
ii. Whether she was sexually harassed and/or raped
iii. Whether she was discriminated against
iv. Whether she deserves the remedies sought.
v. Whether the 1st Respondent is entitled to the prayers under the Counter-claim
Whether the Claimant was unfairly terminated
40. The Claimant’s position is that her employment contract was unlawfully and unfairly terminated on 29th November 2019 on the premise that she was not given a fair hearing during the termination process.
41. It is her position that the grounds raised in the show cause letter as informing her termination are differ from those raised during the hearing and also in the termination letter. The Claimant further avers that the grounds relied on were an afterthought, hence the 1st Respondent maliciously terminated her contract.
42. The Claimant contends that the 1st Respondent assertion that it terminated her services on the grounds that she failed to acquire a work permit in Kenya, is insincere as it is the employer’s obligation to acquire work permits for foreigners who work for them.
43. The 1st Respondent’s position is that it terminated the Claimant’s contract vide a letter dated 29th November 2019 for insubordination, working without a permit, placing false allegations against the 2nd Respondent, and questionable discipline and integrity which constituted a valid and justifiable reason for her termination.
44. For a termination of an employment contract to pass muster, it must be shown that the employer adhered to the twin requirements of fair process and the substantive justification test espoused under Sections 41, 43, 45 and 47 of the Employment Act, 2007.
45. A termination is procedurally fair where the employer affords an employee an opportunity to state her case, and have a representative of choice present during the disciplinary hearing. Section 41 of the Employment Act, demands that an employer before terminating the services of an employee on the grounds of misconduct, poor performance or physical incapacity, explains to the employee, in a language the employee understands, the reasons for which termination is being considered.
46. In the case of Anthony Mkala Chitavi v. Malindi Water & Sewerage Company Ltd [2013] eKLR, the court had this to say on fair process:-
“The ingredients of procedural fairness as I understand it within the Kenyan situation is that the employer should inform the employee as to what charges the employer is contemplating using to dismiss the employee….Secondly, it would follow naturally that if an employee has a right to be informed of the charges he has a right to a proper opportunity to prepare and to be heard and to present a defence/state his case in person, writing or through a representative or shop floor union representative if possible. Thirdly if it is a case of summary dismissal, there is an obligation on the employer to hear and consider any representations by the employee before making the decision to dismiss or give other sanction.”
47. It is not disputed that the Claimant was issued with a show cause letter dated 17th November, 20219 and later on 21st November 2019, she was invited for a disciplinary hearing meeting that was scheduled for 25th November 2019, and further informed of her right to be accompanied to the said hearing by a fellow employee of her choice or a representative.
48. The court record further shows that the Claimant responded to the show cause letter and attended the disciplinary meeting accompanied by a representative of her choice, being her Advocates, and thereafter, a decision was reached terminating her contract with the 1st Respondent on 29th November, 2019.
49. In Silvester Malei Kyengo v Kenya Meat Commission (2019) eKLR, the court held:-
“In this case the Claimant was first served with a show cause letter stating the charges against him, interdicted pending investigation, accorded an oral hearing in the company of another employee of his choice and finally served with a termination letter confirming that his defence was considered but his services terminated for reasons cited in the letter. Such procedure in my view passes the test of procedural fairness and I so hold.”
50. The Claimant was also evidently notified of her right of appeal, which right she exercised and her appeal was acted upon and the decision upholding her termination communicated to her.
51. I have considered the chronology of events leading to the Claimant’s termination, and I reach the conclusion that the Claimant’s termination met the procedural fairness test.
52. On whether the Respondent had valid grounds to terminate the Claimant, the 1st Respondent has listed a myriad reason that informed its decision to end the Claimant’s contract. It contends that she was terminated for gross misconduct, specifically insubordination, absence from work without proper leave application and approval, intentionally planning to bring harm to the company and extortion.
53. The Claimant’s issue in respect of the reasons for termination of her contract is that the grounds kept changing in the various letters that were sent to her, being the show cause notice, invitation for disciplinary hearing and finally the terminations letter. A glance at the letters referred to herein, indicates that the initial letters listed more grounds on the basis of which the Claimant’s response was sought, while the final decision going by the letter of termination, only sustained four grounds (insubordination, absence from work, intentionally planning to bring harm to the company and extortion).
54. It is evident that the Claimant responded to the show cause letter and attended the hearing, which could in my view, be the basis the other grounds were dropped as the same may have sufficiently been responded to/answered.
55. That said, the question for this court is whether the grounds were fair, valid as to justify the termination of the Claimant’s contract. It is settled that reasons for termination are reasons the employer believed to exist at the time of termination.
56. In the case of Charles Musungu Odana v Kenya Ports Authority [2019] eKLR, the Court stated;
“It is now clear that the burden placed on an employer by Section 43 of the Employment Act is to establish a valid reason that would cause a reasonable employer to terminate employment.”
57. The 1st Respondent has placed before court evidence to show that the Claimant neither reported back to work nor applied for leave since the incident of 11th November, 2019, until the time of termination. It is also evident from the record that the Claimant made serious allegations against a colleague, which going by the messages exchanged and produced in evidence, she used to attempt to extort both Respondents, and further issued threats of reporting the issue to the media and to the police, if her demands were not met.
58. Specifically, the record supports the 1st Respondent’s assertion that the Claimant demanded twelve months’ salary and threatened to expose false information to the media to damage the company’s reputation if her demand was not met.
59. In the case of British Leyland v Swift (1981) I. R L.R 91, Lord Denning describe the test of reasonableness in the following words:-
“The correct test is: was it reasonable for the employers to dismiss? If no reasonable employer would have dismissed him, then the dismissal was unfair, but if a reasonable employer might reasonably have dismissed him, the dismissal was fair…..”
60. Taking the foregoing into consideration, I find and hold that the 1st Respondent has shown that it had valid, fair and justified reasons to terminate the Claimant, and therefore find the termination of her contract both procedurally and substantively fair.
Whether the Claimant was sexually harassed and/or raped
61. It is the Claimant’s assertion that she was sexually harassed and victimized by the 2nd Respondent, in the 1st Respondent’s premises. It is her position that she reported the harassment and rape incident to the Country Manager on 18th November 2019, and her employment contract was terminated within 11 days of that reporting.
62. The Claimant contends that the 1st Respondent never took action against the 2nd Respondent regarding the rape issue that took place in their premises.
63. The 1st Respondent on its part, told court that it did investigate and established that the Claimant and the 2nd Respondent had been engaging in consensual sexual relations since August 2019, and that CCTV footage that was produced in evidence showed them together after one such encounter, with the 2nd Respondent purchasing contraceptives while the Claimant waited outside the pharmacy.
64. It is the 1st Respondent’s position that on 11th November, 2019, the date the Claimant later alleged rape occurred, she was seen communicating amicably with the 2nd Respondent, and asking for Ksh.3,500 to buy wine.
65. It avers further that the medical evidence done, did not show forced intercourse, hence the Respondent maintains that the allegations were false and financially motivated, and intended to target the company’s management for personal gain.
66. Section 6 of the Employment Act, 2007 provides:-
“An employee is sexually harassed if the employer of that employee or a representative of that employer or a co-worker:-
a) uses language whether written or spoken of a sexual nature; or
b) shows physical behavior of a sexual nature which directly or indirectly subjects the employee to behavior that is unwelcome or offensive to that employee and that by its nature has a detrimental effect on that employee’s employment, job performance, or job satisfaction.”
67. From the WhatsApp conversation dated 12th November, 2019 between a seniour employee of the 1st Respondent named Mr. Fred and the Claimant, it is evident that the Claimant expressly stated that she was considering compensation in relation to the alleged harassment and warned that escalating the matter to the media would have serious reputational consequences for the 1st Respondent’s company.
68. It is also evident that the Claimant proceeded to demand twelve months’ salary as compensation in exchange for her departure from the company, which in my view, is clear indication that she was only interested in extorting money and not in the pursuit of justice for her alleged infractions.
69. Further, the court record indicates that investigations on the sexual harassment and rape allegations were frustrated by the Claimant by failing to attend four consecutive meetings that had been scheduled by the 1st Respondent/employer to gather information on the allegations, hence frustrating the employer’s effort to deal with her complaint.
70. It is also not disputed that the Claimant reported the alleged harassment and rape to the police three days later, which is clear indication that her action was an afterthought, having been shown that she is well versed in criminal justice procedures, and was fully aware of the proper post rape reporting protocols.
71. The court record further confirms that official investigations conducted by the National Police Service and the Office of the Director of Public Prosecutions (ODPP), concluded that the Claimant’s allegations were malicious and financially motivated.
72. In the final analysis, I reach the conclusion that the Claimant has not on a balance of probability proved a case of sexual harassment, and her claim in this respect is devoid of merit.
Whether the Claimant was discriminated against
73. It is the Claimant’s further case that she was discriminated against on the basis of her gender by the 1st Respondent throughout the process till her contract was terminated.
74. In the case of Peter K Waweru vs Republic [2006] eKLR cited in Bakhoya v Chane & another ( 2024) eKLR , discrimination was defined as affording different treatment to different persons attributable wholly or mainly to their descriptions by race, tribe, place of origin or residence or other local conviction, political opinions, colour, creed, or sex, whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description. Discrimination also means unfair treatment or denial of normal privileges to persons because of their race, age, sex or a failure to treat all persons equally where no reasonable distinction can be found between those favoured and those not favoured.
75. Other than the foregoing allegation, no evidence was led to show that the Claimant was discriminated against.
76. To prove a claim of discrimination, the Claimant needed to have shown that she was treated differently and unfairly from others who were in a comparable situation on account of her gender. The Claimant ought to have established that prima facie, she was unequally treated based on her gender compared with other employees in the 1st Respondent’s employ. (See Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 Others (2013) eKLR).
77. The Claimant has not in my considered view established a case of discrimination.
Whether the Claimant is entitled to the reliefs sought
78. The claims for 12 months’ salary, compensation for unfair termination and payment for the remainder of her contract term fail on account of the finding that the Claimant was not unfairly terminated, and are thus dismissed.
79. On the Claim for one month''s salary in lieu of notice, it is my view that on arriving at the decision to terminate the Claimant’s contract, the 1st Respondent ought to have given her the statutory one month notice, which it did not. I find the claim merited and is allowed as prayed.
80. The Claimant’s claim for full payment for the remainder of her contract also fails. She has also not proved that she was entitled to payment on account of sick leave and has not shown that sick leave was approved.
The Counter-Claim
81. On the Counter-Claim, the 1st Respondent’s position is that the contract between it and the Claimant was already terminated by virtue of her not acquiring a Work Permit, and also by the Claimant having already impliedly resigned with immediate effect when she informed the 1st Respondent on 14th November, 2019, that she was pursuing a case of constructive dismissal against.
82. The 1st Respondent did not lead any evidence to show that the Claimant resigned. The evidence before court indicate that the 1st Respondent mounted disciplinary action that resulted in the Claimant’s termination and a letter was issued to the Claimant terminating her services.
83. The counter-claim therefore, has no basis and is dismissed.
84. In the end, I make the following orders:-
a) A declaration that the Claimant’s termination was fair.
b) A finding that the Claimant has not proved a case of sexual harassment.
c) A finding that the Claimant has not proved a case of discrimination.
d) That the 1st Respondent shall pay the Claimant one month salary in lieu of notice at Kshs.150,000/-
e) The 1st Respondent’s counter-claim is dismissed.
f) Parties shall bear their own costs of the suit.
85. Judgment of the Court.
SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 13TH DAY OF NOVEMBER, 2025.
Appearance:
Ms. Ajigo h/b for Ms. Mwangi for the Claimant
Mr. Onganya present for the 1st Respondent
N/A for the 2nd Respondent
Ms. Esther S- C/A
'
1. This suit was lodged vide a Memorandum of Claim dated 22nd September, 2022, wherein, the Claimant seeks relief on account of:-
a) Unfair and unlawful termination
b) Failure to pay terminal benefits and accrued dues
c) Discrimination on grounds of gender
d) Sexual harassment and victimization
2. The Respondent filed a Response to the Memorandum of Claim dated 1st November, 2022 together with a Counter-Claim for Ksh.150,000 on account of notice.
3. Both the Claimant’s and the Respondent’s cases were heard on 17th March, 2025. The Claimant testified in support of her case, adopted her witness statement and produced documents filed as exhibits in the matter. The Respondent presented the evidence of Mr. Moses Mbithi John, their Human Resource Officer in support of their case.
4. The 2nd Respondent did not defend the suit.
5. Submissions were filed for both parties, and which have been duly considered.
The Claimant’s Case
6. The Claimant’s case is that she entered into a contract of employment with the 1st Respondent as a Sales and Marketing Accounts Manager for a period of 1 year, earning a salary of Kshs.130,000/= and benefits amounting to Kshs.50,000/=on 1st March 2019.
7. She states that on the 1st May 2019, she entered into another contract with the 1st Respondent as a Business Development Manager on a salary of Kshs.150,000/=.
8. The Claimant states that she was sexually assaulted and raped by the 2nd Respondent on 11th November 2019, at premises designated for accommodation by the 1st Respondent.
9. The Claimant states that she reported the incident to a Mr. Fred Peng, the 1st Respondent''s Country Manager through email, and later in person on 12th November 2019. She avers that Mr. Peng then suggested to have a meeting with her and the 2nd Respondent, but which meeting she declined.
10. It is her case that the 1st Respondent''s Chief Executive Officer then threatened to terminate her contract if she reported the incident to either the police or the media. She avers that she reported the incident at Athi River Police Station, and was issued with OB Number 35/14/11/2019, and advised to seek medical attention at Nairobi Women''s Hospital Kitengela, which she did and was issued with a filled PRC form, P3 form and a sick note.
11. The Claimant states that she then issued with a Notice to Show Cause on 17th November 2019, and was required to attend a disciplinary hearing on 25th November at 3:00pm at the 1st Respondent''s premises. She avers that she was also advised to take one or two witnesses with her on the hearing date.
12. The Claimant states that the disciplinary hearing was convened on the said date with the Claimant and her advocates present. The Claimant states that the conduct of the 1st Respondent''s representatives was unbecoming and hostile in manner aimed to attack her owing to the presence of her advocate, and his request for a handbook on sexual policy, hence she was not given a chance to be heard.
13. The Claimant states that the meeting was adjourned and was never reconvened. The Claimant states that she was issued with a copy of the handbook on sexual policy on 25th November 2019, and a termination letter dated 29th November 2019, but no copies of the disciplinary meeting minutes were furnished to her.
14. It is her case that on 9th December 2019, she appealed the termination to the Chief Executive officer, but did not receive a response.
15. On cross-examination, the Claimant told court that house No. 107 where the alleged sexual harassment and rape took place, was outside the 1st Respondent’s premises, but that meetings were frequently held in that house.
16. It is her evidence that she asked the 2nd Respondent for Kshs.3,500 on the same evening of the incident, and that she did not report the incident to the police immediately, but that she did report three days later.
17. It is her case that the 1st Respondent’s Director asked her not to report the incident. It is her further testimony that she sought compensation from the 2nd Respondent.
18. She told court that she saw a letter from the Director of Public Prosecution (DPP) indicating why the 2nd Respondent could not be charged with rape.
19. It is the Claimant’s further testimony that she was invited for a disciplinary hearing which she attended and asked for the rescheduling due to her advocates absence. She avers that she was given another hearing date.
20. It is her prayer that her claim be allowed as prayed.
The Respondent’s Case
21. It is the 1st Respondent’s case that the Claimant was hired on a probationary contract until 31st October, 2019, after which she was to be considered for a permanent role. It states that the Claimant was not confirmed as a permanent employee by that date, and that shortly thereafter, on 11th November, 2019, she made false allegations of sexual assault and rape.
22. It is the 1st Respondent’s case that the Claimant was issued a two-month Special Pass to work in Kenya while processing her Work Permit, but instead of working with the employer to obtain the permit, she relied on a third party and continued working illegally after her Special Pass expired on 22nd June, 2019. It states that the Claimant concealed this fact from the employer, despite knowing that her employment contract required valid immigration documents to remain employed.
23. It states further that the Claimant also misrepresented her immigration compliance status and refused the employer’s help in obtaining the proper Work Permit, making it her sole responsibility to secure legal authorization to work in Kenya.
24. It states that it later established that the Claimant and the 2nd Respondent had been engaging in consensual sexual relations since August 2019, and that CCTV footage shows them together after one such encounter, with the 2nd Respondent purchasing contraceptives while the Claimant waited outside.
25. It is the 1st Respondent’s position that on 11th November, 2019, the date the Claimant later alleged rape occurred, she was seen communicating amicably with the 2nd Respondent, asking for Ksh.3,500 to buy wine, while he explained he had spent his money on Postinor 2 (emergency contraception) following unprotected sex.
26. It avers that medical evidence did not show any vaginal tears, which would typically be expected in a case of forced intercourse. Based on this and the CCTV evidence, the Respondent claims the allegations were false and financially motivated, intended to target the company’s management for personal gain.
27. It is the 1st Respondent’s case that on 12th November, 2019, the Claimant demanded a twelve-month salary and threatened to expose false information to the media to damage the company’s reputation if her demand was not met. The Respondent argues that this shows she approached the Court in bad faith.
28. The Respondent further states that, although the employment relationship was already invalid in law, they still investigated the Claimant’s allegations against the 2nd Respondent before issuing a Show Cause letter that led to her termination. The 1st Respondent maintains that the Claimant impliedly terminated her own contract on 14th November, 2019, when she declared she was pursuing constructive dismissal, even before formally receiving the Show Cause letter on 17th November, 2019.
29. The 1st Respondent further argues that the Claimant was well versed in criminal justice procedures, having previously been a lecturer in Criminal Justice and organized conferences on rape and domestic violence in the UK, hence she was fully aware of the proper post rape reporting protocols, such as immediately seeking medical attention and reporting to the police. It avers further, that despite this knowledge, the Claimant waited four days after the supposed rape on 11th November, 2019, to file a police report, and only two days after demanding Ksh.1.8 million as compensation for constructive dismissal.
30. The Respondent states that the official investigations by the National Police Service and the Office of the Director of Public Prosecutions (ODPP), concluded that the Claimant’s allegations were malicious and financially motivated. It states that the Claimant intentionally omited this exculpatory evidence.
31. The 1st Respondent avers that the Claimant was given a fair internal hearing in accordance with the Constitution, the Employment Act, and the Fair Administrative Action Act. It states that she was granted extra time to respond, which she did both in writing and orally, but later frustrated the process.
32. The Respondent states that the Claimant gave false and contradictory information to the Court, noting that the CEO formally rejected her appeal in a detailed email dated 16th December, 2019.
33. The Respondent asserts that the Claimant knew and accepted the company’s Staff Handbook and policies, and that during the internal hearing, it was established that she had fabricated the sexual harassment and rape allegations.
34. The Respondent states that the Claimant was accorded a fair hearing and administrative action, as she not only addressed her response in writing, but she also had an in-person appearance together with a representative.
35. The 1st Respondent states that there is no outstanding amount owed to the Claimant who was unlawfully offering services since she knew she did not have the proper documentation to offer the services.
36. In respect of the counter-claim, the 1st Respondent’s states that the contract between it and the Claimant was already terminated by virtue of lack of a Work Permit, and the Claimant having already impliedly resigned with immediate effect when she informed the 1st Respondent on 14th November, 2019, that she was pursuing a case of constructive dismissal against it.
37. In light of the above, the 1st Respondent states that the Claimant owes it Ksh.150,000 for resignation without serving the notice period.
38. The 1st Respondent prays that the Claimant’s suit be dismissed with costs and its counter-claim allowed as prayed.
Analysis and Determination
39. The issues that present for determination are:-
i. Whether the Claimant was unfairly terminated
ii. Whether she was sexually harassed and/or raped
iii. Whether she was discriminated against
iv. Whether she deserves the remedies sought.
v. Whether the 1st Respondent is entitled to the prayers under the Counter-claim
Whether the Claimant was unfairly terminated
40. The Claimant’s position is that her employment contract was unlawfully and unfairly terminated on 29th November 2019 on the premise that she was not given a fair hearing during the termination process.
41. It is her position that the grounds raised in the show cause letter as informing her termination are differ from those raised during the hearing and also in the termination letter. The Claimant further avers that the grounds relied on were an afterthought, hence the 1st Respondent maliciously terminated her contract.
42. The Claimant contends that the 1st Respondent assertion that it terminated her services on the grounds that she failed to acquire a work permit in Kenya, is insincere as it is the employer’s obligation to acquire work permits for foreigners who work for them.
43. The 1st Respondent’s position is that it terminated the Claimant’s contract vide a letter dated 29th November 2019 for insubordination, working without a permit, placing false allegations against the 2nd Respondent, and questionable discipline and integrity which constituted a valid and justifiable reason for her termination.
44. For a termination of an employment contract to pass muster, it must be shown that the employer adhered to the twin requirements of fair process and the substantive justification test espoused under Sections 41, 43, 45 and 47 of the Employment Act, 2007.
45. A termination is procedurally fair where the employer affords an employee an opportunity to state her case, and have a representative of choice present during the disciplinary hearing. Section 41 of the Employment Act, demands that an employer before terminating the services of an employee on the grounds of misconduct, poor performance or physical incapacity, explains to the employee, in a language the employee understands, the reasons for which termination is being considered.
46. In the case of Anthony Mkala Chitavi v. Malindi Water & Sewerage Company Ltd [2013] eKLR, the court had this to say on fair process:-
“The ingredients of procedural fairness as I understand it within the Kenyan situation is that the employer should inform the employee as to what charges the employer is contemplating using to dismiss the employee….Secondly, it would follow naturally that if an employee has a right to be informed of the charges he has a right to a proper opportunity to prepare and to be heard and to present a defence/state his case in person, writing or through a representative or shop floor union representative if possible. Thirdly if it is a case of summary dismissal, there is an obligation on the employer to hear and consider any representations by the employee before making the decision to dismiss or give other sanction.”
47. It is not disputed that the Claimant was issued with a show cause letter dated 17th November, 20219 and later on 21st November 2019, she was invited for a disciplinary hearing meeting that was scheduled for 25th November 2019, and further informed of her right to be accompanied to the said hearing by a fellow employee of her choice or a representative.
48. The court record further shows that the Claimant responded to the show cause letter and attended the disciplinary meeting accompanied by a representative of her choice, being her Advocates, and thereafter, a decision was reached terminating her contract with the 1st Respondent on 29th November, 2019.
49. In Silvester Malei Kyengo v Kenya Meat Commission (2019) eKLR, the court held:-
“In this case the Claimant was first served with a show cause letter stating the charges against him, interdicted pending investigation, accorded an oral hearing in the company of another employee of his choice and finally served with a termination letter confirming that his defence was considered but his services terminated for reasons cited in the letter. Such procedure in my view passes the test of procedural fairness and I so hold.”
50. The Claimant was also evidently notified of her right of appeal, which right she exercised and her appeal was acted upon and the decision upholding her termination communicated to her.
51. I have considered the chronology of events leading to the Claimant’s termination, and I reach the conclusion that the Claimant’s termination met the procedural fairness test.
52. On whether the Respondent had valid grounds to terminate the Claimant, the 1st Respondent has listed a myriad reason that informed its decision to end the Claimant’s contract. It contends that she was terminated for gross misconduct, specifically insubordination, absence from work without proper leave application and approval, intentionally planning to bring harm to the company and extortion.
53. The Claimant’s issue in respect of the reasons for termination of her contract is that the grounds kept changing in the various letters that were sent to her, being the show cause notice, invitation for disciplinary hearing and finally the terminations letter. A glance at the letters referred to herein, indicates that the initial letters listed more grounds on the basis of which the Claimant’s response was sought, while the final decision going by the letter of termination, only sustained four grounds (insubordination, absence from work, intentionally planning to bring harm to the company and extortion).
54. It is evident that the Claimant responded to the show cause letter and attended the hearing, which could in my view, be the basis the other grounds were dropped as the same may have sufficiently been responded to/answered.
55. That said, the question for this court is whether the grounds were fair, valid as to justify the termination of the Claimant’s contract. It is settled that reasons for termination are reasons the employer believed to exist at the time of termination.
56. In the case of Charles Musungu Odana v Kenya Ports Authority [2019] eKLR, the Court stated;
“It is now clear that the burden placed on an employer by Section 43 of the Employment Act is to establish a valid reason that would cause a reasonable employer to terminate employment.”
57. The 1st Respondent has placed before court evidence to show that the Claimant neither reported back to work nor applied for leave since the incident of 11th November, 2019, until the time of termination. It is also evident from the record that the Claimant made serious allegations against a colleague, which going by the messages exchanged and produced in evidence, she used to attempt to extort both Respondents, and further issued threats of reporting the issue to the media and to the police, if her demands were not met.
58. Specifically, the record supports the 1st Respondent’s assertion that the Claimant demanded twelve months’ salary and threatened to expose false information to the media to damage the company’s reputation if her demand was not met.
59. In the case of British Leyland v Swift (1981) I. R L.R 91, Lord Denning describe the test of reasonableness in the following words:-
“The correct test is: was it reasonable for the employers to dismiss? If no reasonable employer would have dismissed him, then the dismissal was unfair, but if a reasonable employer might reasonably have dismissed him, the dismissal was fair…..”
60. Taking the foregoing into consideration, I find and hold that the 1st Respondent has shown that it had valid, fair and justified reasons to terminate the Claimant, and therefore find the termination of her contract both procedurally and substantively fair.
Whether the Claimant was sexually harassed and/or raped
61. It is the Claimant’s assertion that she was sexually harassed and victimized by the 2nd Respondent, in the 1st Respondent’s premises. It is her position that she reported the harassment and rape incident to the Country Manager on 18th November 2019, and her employment contract was terminated within 11 days of that reporting.
62. The Claimant contends that the 1st Respondent never took action against the 2nd Respondent regarding the rape issue that took place in their premises.
63. The 1st Respondent on its part, told court that it did investigate and established that the Claimant and the 2nd Respondent had been engaging in consensual sexual relations since August 2019, and that CCTV footage that was produced in evidence showed them together after one such encounter, with the 2nd Respondent purchasing contraceptives while the Claimant waited outside the pharmacy.
64. It is the 1st Respondent’s position that on 11th November, 2019, the date the Claimant later alleged rape occurred, she was seen communicating amicably with the 2nd Respondent, and asking for Ksh.3,500 to buy wine.
65. It avers further that the medical evidence done, did not show forced intercourse, hence the Respondent maintains that the allegations were false and financially motivated, and intended to target the company’s management for personal gain.
66. Section 6 of the Employment Act, 2007 provides:-
“An employee is sexually harassed if the employer of that employee or a representative of that employer or a co-worker:-
a) uses language whether written or spoken of a sexual nature; or
b) shows physical behavior of a sexual nature which directly or indirectly subjects the employee to behavior that is unwelcome or offensive to that employee and that by its nature has a detrimental effect on that employee’s employment, job performance, or job satisfaction.”
67. From the WhatsApp conversation dated 12th November, 2019 between a seniour employee of the 1st Respondent named Mr. Fred and the Claimant, it is evident that the Claimant expressly stated that she was considering compensation in relation to the alleged harassment and warned that escalating the matter to the media would have serious reputational consequences for the 1st Respondent’s company.
68. It is also evident that the Claimant proceeded to demand twelve months’ salary as compensation in exchange for her departure from the company, which in my view, is clear indication that she was only interested in extorting money and not in the pursuit of justice for her alleged infractions.
69. Further, the court record indicates that investigations on the sexual harassment and rape allegations were frustrated by the Claimant by failing to attend four consecutive meetings that had been scheduled by the 1st Respondent/employer to gather information on the allegations, hence frustrating the employer’s effort to deal with her complaint.
70. It is also not disputed that the Claimant reported the alleged harassment and rape to the police three days later, which is clear indication that her action was an afterthought, having been shown that she is well versed in criminal justice procedures, and was fully aware of the proper post rape reporting protocols.
71. The court record further confirms that official investigations conducted by the National Police Service and the Office of the Director of Public Prosecutions (ODPP), concluded that the Claimant’s allegations were malicious and financially motivated.
72. In the final analysis, I reach the conclusion that the Claimant has not on a balance of probability proved a case of sexual harassment, and her claim in this respect is devoid of merit.
Whether the Claimant was discriminated against
73. It is the Claimant’s further case that she was discriminated against on the basis of her gender by the 1st Respondent throughout the process till her contract was terminated.
74. In the case of Peter K Waweru vs Republic [2006] eKLR cited in Bakhoya v Chane & another ( 2024) eKLR , discrimination was defined as affording different treatment to different persons attributable wholly or mainly to their descriptions by race, tribe, place of origin or residence or other local conviction, political opinions, colour, creed, or sex, whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description. Discrimination also means unfair treatment or denial of normal privileges to persons because of their race, age, sex or a failure to treat all persons equally where no reasonable distinction can be found between those favoured and those not favoured.
75. Other than the foregoing allegation, no evidence was led to show that the Claimant was discriminated against.
76. To prove a claim of discrimination, the Claimant needed to have shown that she was treated differently and unfairly from others who were in a comparable situation on account of her gender. The Claimant ought to have established that prima facie, she was unequally treated based on her gender compared with other employees in the 1st Respondent’s employ. (See Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 Others (2013) eKLR).
77. The Claimant has not in my considered view established a case of discrimination.
Whether the Claimant is entitled to the reliefs sought
78. The claims for 12 months’ salary, compensation for unfair termination and payment for the remainder of her contract term fail on account of the finding that the Claimant was not unfairly terminated, and are thus dismissed.
79. On the Claim for one month''s salary in lieu of notice, it is my view that on arriving at the decision to terminate the Claimant’s contract, the 1st Respondent ought to have given her the statutory one month notice, which it did not. I find the claim merited and is allowed as prayed.
80. The Claimant’s claim for full payment for the remainder of her contract also fails. She has also not proved that she was entitled to payment on account of sick leave and has not shown that sick leave was approved.
The Counter-Claim
81. On the Counter-Claim, the 1st Respondent’s position is that the contract between it and the Claimant was already terminated by virtue of her not acquiring a Work Permit, and also by the Claimant having already impliedly resigned with immediate effect when she informed the 1st Respondent on 14th November, 2019, that she was pursuing a case of constructive dismissal against.
82. The 1st Respondent did not lead any evidence to show that the Claimant resigned. The evidence before court indicate that the 1st Respondent mounted disciplinary action that resulted in the Claimant’s termination and a letter was issued to the Claimant terminating her services.
83. The counter-claim therefore, has no basis and is dismissed.
84. In the end, I make the following orders:-
a) A declaration that the Claimant’s termination was fair.
b) A finding that the Claimant has not proved a case of sexual harassment.
c) A finding that the Claimant has not proved a case of discrimination.
d) That the 1st Respondent shall pay the Claimant one month salary in lieu of notice at Kshs.150,000/-
e) The 1st Respondent’s counter-claim is dismissed.
f) Parties shall bear their own costs of the suit.
85. Judgment of the Court.
SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 13TH DAY OF NOVEMBER, 2025.
C. N. BAARI
JUDGE
Appearance:
Ms. Ajigo h/b for Ms. Mwangi for the Claimant
Mr. Onganya present for the 1st Respondent
N/A for the 2nd Respondent
Ms. Esther S- C/A
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