1. Vide her Statement of Claim dated 6th November 2024, the Claimant seeks the following reliefs against the Respondents: -
a. General damages for sexual harassment
b. A declaration that the termination of the Claimant’s employment on account of misconduct was malicious, unlawful, unfair, unprocedural and a fundamental violation of the right of the Claimant
c. 10 months salary compensation for the termination plus accrued interest
d. A maximum compensation as per section 49(c) of the Employment Act
e. Costs and Interest of this suit
f. Any other award as the honourable court deems fit to grant in the circumstances of this case.
2. The Claimant’s case is that the 2nd Respondent contacted her with a job proposal and after she met the requisite requirements, employed her as a Biology/Agriculture teacher on contract basis with effect from 1st November 2022.
3. The Claimant avers that as indicated in her letter of appointment her remuneration package included a basic salary of Kshs 15,000 plus house allowance of Kshs 3000.
4. The Claimant contends that she was subjected to repeated sexual advances by the 1st Respondent, the school's Principal, which she consistently rejected. She avers that her refusal to accede to those advances bred animosity on the part of the 1st Respondent, whose persistent and unwelcome conduct amounted to sexual harassment.
5. The Claimant particularized the sexual harassment by the 1st Respondent as follows: -
i. Sexual advances via WhatsApp texts late in the night
ii. Constant invitations for dinner and outings
iii. Assignment of duties closer to his office
iv. Being given preferential treatment compared to other BOM teachers
6. She avers that the animosity led to the said principal maliciously terminating her employment contract on 11th October 2024.
7. The Claimant contends that her dismissal was illegal, unfair and unlawful as it violated the provisions of sections 41(1), 43, 44 and 45(2) of the Employment Act.
8. The Respondents responded to the Statement of Claim vide a Response to the Memorandum of Claim dated 20th January 2025 denying the Claimant’s allegation as set out in her Statement of Claim. The Respondents averred that the Board unanimously agreed to relieve the Claimant of her duties and the decision was not made by the 1st Respondent as alleged by the Claimant.
9. In addition, the Respondents filed a Statement of Facts dated 7th August 2025, in which they averred that the Claimant served the 2nd Respondent diligently until she allegedly began exhibiting laxity in the performance of her duties and engaged in conduct amounting to gross misconduct. In particular, they contended that she absented herself from school without permission, prompting the issuance of a letter dated 4th April 2024 recommending that disciplinary action be taken against her.
10. The Respondents further averred that the Claimant’s performance at school was wanting as student grades in her subject were very low, which is against the terms of her employment letter.
11. The Respondents thus averred that the Claimant's employment was terminated on account of poor performance with effect from 31st October 2024. They contended that prior to the termination, the Claimant had absented herself from duty and deserted her workstation from 14th October 2024.
12. The Respondents denied the allegations of sexual harassment, contending that they were unfounded. They averred that despite alleging sexual harassment, the Claimant continued to respond to the text messages exchanged between herself and the 1st Respondent.
13. In the end, the Respondents urged the court to dismiss the Claimant’s claim with costs.
14. The suit was heard on various dates. The Claimant testified on 19th November 2025 as CW1 and adopted her witness statement recorded on 6th November 2024 as her evidence in chief. She also relied on the list of documents filed in court in support of her case.
15. In her testimony, the Claimant largely reiterated the averments contained in her Statement of Claim. In addition, she testified that the reason advanced by the Respondents for terminating her employment was poor performance. She testified that she was never invited to any meeting to discuss her alleged underperformance, nor was she summoned by the 2nd Respondent in that regard.
16. She further testified that the 1st Respondent's letter dated 7th July 2024 informed all members of staff of the renewal of their contracts and that, following the assessment undertaken, she had qualified for renewal, her performance having been rated as good.
17. According to the Claimant, the minutes of the meeting held on 30th September 2024 did not indicate that she lacked schemes of work or that her lesson preparation was inadequate. The Claimant further testified that she was never issued with a notice to show cause or invited to appear before the Board of Management (BOM) to answer any allegations against her.
18. She maintained that she discharged her duties diligently and faithfully throughout her employment as a teacher.
19. The Claimant further testified that the attendance register, which had previously been kept at the school gate, was subsequently removed after which the 1st Respondent required teachers to sign the register from his office. She stated that on one occasion, the security guard informed her that the Principal had instructed him to hide the attendance register so that she would be unable to sign it. She explained that this occurred on a day when she was leaving school in the evening and found the register at the gate, although it had not been available when she reported to work that morning.
20. Regarding the allegation that she had absented herself from duty, she testified that during the examination period teachers only reported to school when they were scheduled to invigilate examinations. She stated that she had been assigned invigilation duties on two days in October 2024 when she attended and invigilated as required. She maintained that there was no evidence before the court demonstrating that she had absented herself from duty.
21. The Claimant also testified that she was subjected to sexual harassment by the 1st Respondent. She stated that she did not report the matter because the alleged harasser was the Principal, who also served as the Secretary to the Board of Management (BOM).
22. According to the Claimant, she was served with the letter terminating her employment on 10th October 2024 by the Secretary, although the letter had been backdated. It was her testimony that on 4th October 2024, the 1st Respondent made sexual advances towards her, which she rejected by informing him that she could not accede to his demands. Thereafter, he allegedly ignored her while greeting other teachers. The Claimant stated that the other teachers noticed the change in the 1st Respondent's behaviour and questioned her about it, although she only disclosed the matter to the teacher in charge of guidance and counselling. She further testified that shortly thereafter, she was served with the letter terminating her employment.
23. During cross-examination, the Claimant testified that she secured her current employment in January 2025. When referred to the letter alleging insubordination dated 4th April 2024, appearing at page 24 of the Respondents' bundle, she denied ever having been served with it. She further testified that she did not apply for formal leave because oral permission was sufficient. According to her, she had been unwell on 2nd and 4th April 2024. When referred to the school attendance register at page 44 of the Respondents' bundle, the Claimant reiterated that in October 2024 the 1st Respondent removed the register from the school gate and kept it in his office. She maintained that she reported to work until 31st October 2024. According to the Claimant, she did not sign the attendance register between 15th and 28th October 2024 because the 1st Respondent had moved it to his office and only summoned selected teachers to sign it. She maintained that although the register indicated that she had been absent, she was in fact present at work but was not afforded an opportunity to sign it. She added that by then she had already been issued with the termination letter requiring her to continue working until the end of October 2024.
24. The Claimant further testified that she lodged a complaint with the County Labour Officer on 14th October 2024 regarding her alleged unfair termination. She maintained that she remained at work from 14th to 28th October 2024. She acknowledged that poor performance was one of the grounds for termination under her contract of employment but denied that she had underperformed.
25. When referred to the KCSE performance analysis dated 28th January 2025 at page 6 of the Respondents' bundle, the Claimant acknowledged that the Biology results showed numerous grades of "E" and other low grades but pointed out that the document was signed and dated 29th January 2025, several months after the termination of her employment. She averred that the subject analysis contained in the minutes appearing at page 28 reflected a mean grade of "E" in Biology but maintained that the analysis was conducted after the termination of her employment and therefore could not have formed the basis for the decision to terminate her employment.
26. When referred to the minutes of the Board meeting held on 1st July 2024 at page 30 of the Respondents' bundle, the Claimant testified that although the Director of Studies (DOS) and Deputy Academic Administrator (DAA) had allegedly expressed concerns regarding her performance, those concerns were never communicated to her. She maintained that she never attended any meeting at which her performance was discussed and was never afforded an opportunity to respond to the allegations of poor performance.
27. When referred to her Certificate of Electronic Evidence dated 6th November 2024, the Claimant conceded that the messages did not contain any express coercive language. She further admitted that she did not report either the alleged threats or the alleged sexual harassment to the police. She also testified that she did not inform the teacher in charge of guidance and counselling that she had been sexually harassed, but only that the Principal had begun ignoring her.
28. The Claimant further testified that one of the grounds for termination under her contract was the deployment of a teacher with her subject combination by Teachers Service Commission (TSC), although that never occurred. In this regard, she stated that there were three teachers with her subject combination, being Mr. Tum, Mr. Mayo, and herself, while Mr. Cheruiyot taught Chemistry and Biology and not Biology and Agriculture.
29. She stated that upon termination of her employment, she was paid Kshs. 36,900, being salary for the period 1st to 14th October 2024 together with pay in lieu of notice. She testified that she completed the clearance process immediately after receiving the termination letter but was not issued with a certificate of service.
30. Upon re-examination, the Claimant testified that she was not the only teacher handling Biology, as the school had four streams and four Biology teachers, each teaching different classes. She stated that she taught Biology in Form Four West and also taught Agriculture, in which her students performed well. The Claimant maintained that the other Biology teachers were not terminated despite teaching the same subject. She further testified that she never attended any Board of Management meeting nor was she afforded an opportunity to respond to any allegations regarding her performance contained in the Board minutes.
31. On behalf of the Respondents, the 1st Respondent testified as RW1. He adopted his witness statement dated 7th August 2025 as his evidence in chief and relied on the documents contained in the Respondents' bundle.
32. RW1 testified that the Claimant's employment was terminated on grounds of poor performance, gross misconduct and absenteeism from duty. He stated that the Claimant had been assigned duties which she failed to perform and that her performance in Biology was unsatisfactory. It was his testimony that the Board of Management (BOM) authorized him to issue the letter of termination to the Claimant.
33. RW1 further testified that the Claimant had been assigned examination invigilation duties but failed to report to school and did not seek permission for her absence. He stated that where a teacher required permission to be absent from school, the teacher was required to apply for leave and would be issued with a leave-out sheet. According to him, there was no leave-out sheet issued to the Claimant covering the period between 15th and 31st October 2024.
34. On the issue of performance, RW1 testified that the Claimant had been assigned to teach Biology. He further stated that although she had also been allocated Agriculture, it was her performance in Biology that was poor. Referring to the examination analysis at page 6 of the Respondents' bundle, RW1 testified that the Biology results for the 2024 examinations reflected numerous grades of D, D- and E, demonstrating poor performance by the students. He stated that this prompted complaints from the Deputy Principal and the Board of Management, as reflected in the minutes of the meeting held on 1st July 2024.
35. RW1 further referred to the Board minutes of 13th September 2024, which, according to him, resolved that the Claimant was underperforming and should be relieved of her duties. He testified that the Claimant did not attend the Board meeting held on 1st July 2024.
36. According to RW1, although the Claimant's employment was due to terminate on 31st October 2024, she stopped reporting to work on 14th October 2024 without offering any explanation for her absence.
37. RW1 denied the Claimant's allegations of sexual harassment. He testified that those allegations were only made after the Claimant had been served with the letter of termination. He admitted sending the Claimant text messages asking whether they could have a relationship but maintained that she willingly responded to the messages and that there was no coercion. He reiterated that the decision to terminate the Claimant's employment was justified on account of poor performance, misconduct and absenteeism.
38. During cross-examination, RW1, while referring to the letter dated 4th April 2024, testified that the Claimant had absented herself from duty on 3rd and 4th April 2024. He stated that she had been assigned examination invigilation duties on 2nd and 4th April 2024 and that the letter complained that she had failed to invigilate on those dates and had also been absent on 3rd April 2024. He conceded, however, that the Respondents had not produced an attendance register or attendance list to support those allegations.
39. RW1 further admitted that the Claimant was not the only Biology teacher in the school and acknowledged that the examination results ought ordinarily to be attributed to all the Biology teachers. He denied that the Claimant had been discriminated against and stated that concerns regarding her performance had also been raised by other teachers, including the Deputy Administrator, who was himself a Biology teacher.
40. RW1 testified that the termination letter was issued on 1st October 2024 and that the Respondents relied on internal examination results in assessing the Claimant's performance. He conceded that those internal examination results had not been produced before the court. He further testified that his assessment of the Claimant's performance was based on reports from her immediate supervisor, although no written complaints against the Claimant had been produced.
41. RW1 further testified that the Claimant's contract of employment had been renewed both in 2023 and 2024, with the latest renewal taking effect on 1st July 2024 after it had been established that she had met the required standards. He acknowledged that the assessment report dated 7th July 2024 contained no finding that the Claimant had failed to meet the applicable performance standards.
42. When referred to the Internal Quality Standards Assessment letter dated 7th July 2024 (Document No. 5 in the Claimant's bundle), RW1 acknowledged that the document showed that the Claimant taught Biology in Forms 1 West, 3 North and 4 West, and Agriculture in Forms 1C, 1 South, 2 North and Form 4. He nevertheless maintained that, in practice, the Claimant primarily taught Biology.
43. RW1 further testified that the Claimant was not afforded an opportunity to defend herself before her employment was terminated. He stated that although she was issued with a notice of termination, she was not invited to a disciplinary hearing regarding the allegations levelled against her. He reiterated that the grounds for termination were those stated in the letter of termination.
44. RW1 further testified that the Claimant was absent from work between 14th and 31st October 2024. When referred to the Claimant's Certificate of Service, he acknowledged that he had issued it and confirmed that it indicated that the Claimant had served the 2nd Respondent from 1st July 2022 to 31st October 2024. He however maintained that the Claimant had ceased reporting to work on 14th October 2024. Regarding the attendance register, RW1 testified that it was accessible to all teachers.
45. Upon re-examination, RW1 maintained that he did not sexually harass the Claimant. He further testified that the Claimant was the only Board of Management teacher assigned to teach Biology. He added that there was no requirement for the Director of Studies to communicate concerns regarding a teacher's performance to the Principal in writing, as such concerns could be raised and discussed during meetings of the Board of Management.
Submissions
46. At the close of the Respondents’ case, the court directed parties to file written submissions. The Respondent’s submissions are dated 12th March 2026. I have perused the record and did not find submissions by the Claimant. By and large, the Respondents’ submissions reiterated the positions taken by the respective parties.
DETERMINATION
47. From the pleadings on record, the evidence of the parties and the submissions filed, the issues that arise for determination in this case are: -
i. Whether the Claimant was subjected to sexual harassment,
ii. Whether the termination of the Claimant’s employment was justified,
iii. Whether the procedure followed was in accordance with the Employment Act,
iv. Whether the reliefs sought are merited.
Whether the Claimant was subjected to sexual harassment
48. The Claimant contends that the 1st Respondent subjected her to sexual harassment and that her refusal to accede to his sexual advances ultimately culminated in the termination of her employment. The Respondents, on the other hand, deny the allegation and maintain that the termination of the Claimant's employment was solely attributable to poor performance, absenteeism and misconduct.
49. Section 6 of the Employment Act prohibits sexual harassment in the workplace and imposes upon employers a duty to protect employees from such conduct. The provision contemplates unwelcome sexual advances, requests for sexual favours, sexually suggestive language or gestures, or other conduct of a sexual nature where submission to, or rejection of, such conduct is made a basis for employment decisions, or where the conduct has the purpose or effect of creating an intimidating, hostile or offensive working environment.
50. The burden of proving the allegation of sexual harassment rests with the Claimant on a balance of probabilities. Since incidents of sexual harassment often occur in private, direct evidence may not always be available. The Court must therefore consider all the evidence presented, including the conduct of the parties at the time, the documents produced and the credibility of the witnesses, in determining whether the allegation has been proved.
51. The Claimant herein testified that the 1st Respondent persistently made sexual advances towards her, invited her to dinner and outings and assigned her duties closer to his office. She further testified that upon rejecting his advances on 4th October 2024, the 1st Respondent became hostile towards her, ignored her, and shortly thereafter caused her employment to be terminated. She explained that she did not report the alleged harassment because the 1st Respondent was both the Principal and the Secretary to the Board of Management.
52. In support of her case, the Claimant relied on WhatsApp conversations exchanged between herself and the 1st Respondent. During cross-examination, she acknowledged that the conversations did not contain express coercive language. She however maintained that the 1st Respondent's insistence on pursuing a romantic relationship amounted to coercion. She also admitted that she neither reported the alleged sexual harassment to the police nor informed the teacher in charge of guidance and counselling that she had been sexually harassed, stating instead that she only informed the teacher that the Principal had begun ignoring her.
53. In his defence, RW1 denied sexually harassing the Claimant. He admitted sending the Claimant text messages expressing his desire to have a relationship with her but maintained that the conversations were consensual and that the Claimant voluntarily responded to the messages. He denied making threats or coercing the Claimant and asserted that the allegations of sexual harassment only arose after the Claimant had been served with the termination letter.
54. I have considered the WhatsApp messages together with the evidence given by both parties. While the messages show that the 1st Respondent was interested in having a romantic relationship with the Claimant, they do not show that he threatened her, asked for sexual favours, or made her job depend on accepting his advances. I have also considered the Claimant's explanation that she did not report the alleged harassment because the 1st Respondent was the Principal and Secretary to the Board of Management. Although that explanation is understandable, the Claimant did not report the matter to any other person or authority, including the teacher in charge of guidance and counselling. There is no evidence of anguish on her part in the WhatsApp messages. On the contrary, the communication is consensual. This does not by itself defeat her claim, but it is one of the factors the Court has considered in deciding whether the allegation has been proved.
55. Although the evidence demonstrates that the 1st Respondent pursued a personal or romantic relationship with the Claimant, it falls short of establishing that her rejection of those advances was made a condition of her employment or that it directly resulted in the termination of her employment. Looking at the evidence presented in court as a whole, I find that the Claimant has not proved, on a balance of probabilities, that the conduct of the 1st Respondent amounted to sexual harassment within the meaning of section 6 of the Employment Act.
Whether the termination of the Claimant’s employment was justified.
56. Section 45(2) of the Employment Act prohibits an employer from terminating the contract of an employee except for valid reason and upon compliance with fair procedure. Section 43(1) of the Employment Act places the burden of proving the reasons for termination on the employer. Where the employer fails to do so, such termination is deemed unfair within the meaning of Section 45. The section provides:
“In any claim arising out of termination of a contract, the employer shall be required to prove the reason or reasons for the termination, and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of Section 45.”
57. The Respondents maintained that the Claimant's employment was terminated on account of poor performance, absenteeism and gross misconduct. According to RW1, the Claimant performed poorly in the Biology subject, failed to attend examination invigilation duties, absented herself from work without permission and failed to perform duties assigned to her. RW1 further testified that poor performance constituted one of the grounds for termination under the Claimant's contract of employment and that the Board of Management had resolved that she be relieved of her duties.
58. The Claimant denied the allegations. She maintained that she had never been informed that her performance was unsatisfactory, had never been invited to any meeting where her performance was discussed, and had never been issued with a notice to show cause.
59. She further testified that her contract had been renewed in July 2024 after an assessment in which her performance had been rated as satisfactory. She also denied absconding duty and explained that during the examination period teachers only reported on the days they had been assigned to invigilate examinations. Regarding the attendance register, she maintained that the register had been removed from the school gate and kept in the Principal's office, thereby denying her an opportunity to sign it.
60. Upon evaluating the evidence placed before the Court, I find that the Respondents did not discharge the burden imposed by section 43 of the Employment Act. Although the Respondents alleged poor performance, RW1 conceded during cross-examination that the assessment report dated 7th July 2024 contained no finding that the Claimant had failed to meet the required performance standards. He further admitted that the internal examination results allegedly relied upon to assess the Claimant's performance were not produced before the Court.
61. Moreover, from the evidence on record, the examination analysis showing poor Biology performance was prepared in January 2025, several months after the Claimant's employment had already been terminated and therefore could not reasonably have informed the decision to terminate her employment.
62. In addition, the allegation that the Claimant's poor performance was solely responsible for the Biology results was not satisfactorily established. Both the Claimant and RW1 acknowledged that Biology was taught by more than one teacher. In those circumstances, the Respondents did not place before the Court any evidence demonstrating that the poor performance in the subject was solely attributable to the Claimant or that her individual performance had been objectively evaluated against known performance standards.
63. In Kenfreight (E.A.) Limited v Benson K.Nguti[2016] KECA 688 (KLR), the Court of Appeal emphasized that it is not enough for an employer to cite poor performance, that there must be proof that the employee was made aware of the shortcomings and given an opportunity to improve.
64. As regards absenteeism, the Respondents alleged that the Claimant absented herself from work without permission. However, RW1 conceded that the Respondents did not produce the attendance records or any other documentary evidence demonstrating the alleged absenteeism. The Court is therefore left with unsubstantiated allegations, which fall short of the evidential burden imposed upon an employer by section 43 of the Employment Act.
65. The allegation of gross misconduct also remained unsupported by cogent evidence. Other than the allegations of absenteeism and poor performance, which have not been proved to the required standard, the Respondents did not place before the Court evidence of any independent acts of misconduct warranting the Claimant's dismissal.
66. In the circumstances, I find that the Respondents failed to establish, on a balance of probabilities, that they had a valid and fair reason for terminating the Claimant's employment as required under sections 43 and 45 of the Employment Act. Consequently, the decision of the Respondents to terminate the Claimant's employment was substantively unfair.
Whether the procedure followed was in accordance with the Employment Act
67. Section 41 of the Employment Act provides: -
“Subject to section 42 (1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.”
68. The import of section 41 of the Employment Act has been considered in numerous decisions of the superior courts. In Postal Corporation of Kenya v Tanui [2019] KECA 489 (KLR), the Court of Appeal held: -
42. It is our further view that Section 41 provides the minimum standards of a fair procedure that an employer ought to comply with. The section provides for Notification and hearing before termination on grounds of misconduct" in the following manner:-
"(1)Subject to Section 42 (1), an employer shall before terminating the employment of an employee, on the grounds of misconduct; poor to performance or physical in capacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.”
“(2)Notwithstanding any other provision of this part, an employer shall, before terminating the employment of an employer or summarily dismissing an employee under Section 44 (3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, chosen by the em
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a. General damages for sexual harassment
b. A declaration that the termination of the Claimant’s employment on account of misconduct was malicious, unlawful, unfair, unprocedural and a fundamental violation of the right of the Claimant
c. 10 months salary compensation for the termination plus accrued interest
d. A maximum compensation as per section 49(c) of the Employment Act
e. Costs and Interest of this suit
f. Any other award as the honourable court deems fit to grant in the circumstances of this case.
2. The Claimant’s case is that the 2nd Respondent contacted her with a job proposal and after she met the requisite requirements, employed her as a Biology/Agriculture teacher on contract basis with effect from 1st November 2022.
3. The Claimant avers that as indicated in her letter of appointment her remuneration package included a basic salary of Kshs 15,000 plus house allowance of Kshs 3000.
4. The Claimant contends that she was subjected to repeated sexual advances by the 1st Respondent, the school's Principal, which she consistently rejected. She avers that her refusal to accede to those advances bred animosity on the part of the 1st Respondent, whose persistent and unwelcome conduct amounted to sexual harassment.
5. The Claimant particularized the sexual harassment by the 1st Respondent as follows: -
i. Sexual advances via WhatsApp texts late in the night
ii. Constant invitations for dinner and outings
iii. Assignment of duties closer to his office
iv. Being given preferential treatment compared to other BOM teachers
6. She avers that the animosity led to the said principal maliciously terminating her employment contract on 11th October 2024.
7. The Claimant contends that her dismissal was illegal, unfair and unlawful as it violated the provisions of sections 41(1), 43, 44 and 45(2) of the Employment Act.
8. The Respondents responded to the Statement of Claim vide a Response to the Memorandum of Claim dated 20th January 2025 denying the Claimant’s allegation as set out in her Statement of Claim. The Respondents averred that the Board unanimously agreed to relieve the Claimant of her duties and the decision was not made by the 1st Respondent as alleged by the Claimant.
9. In addition, the Respondents filed a Statement of Facts dated 7th August 2025, in which they averred that the Claimant served the 2nd Respondent diligently until she allegedly began exhibiting laxity in the performance of her duties and engaged in conduct amounting to gross misconduct. In particular, they contended that she absented herself from school without permission, prompting the issuance of a letter dated 4th April 2024 recommending that disciplinary action be taken against her.
10. The Respondents further averred that the Claimant’s performance at school was wanting as student grades in her subject were very low, which is against the terms of her employment letter.
11. The Respondents thus averred that the Claimant's employment was terminated on account of poor performance with effect from 31st October 2024. They contended that prior to the termination, the Claimant had absented herself from duty and deserted her workstation from 14th October 2024.
12. The Respondents denied the allegations of sexual harassment, contending that they were unfounded. They averred that despite alleging sexual harassment, the Claimant continued to respond to the text messages exchanged between herself and the 1st Respondent.
13. In the end, the Respondents urged the court to dismiss the Claimant’s claim with costs.
14. The suit was heard on various dates. The Claimant testified on 19th November 2025 as CW1 and adopted her witness statement recorded on 6th November 2024 as her evidence in chief. She also relied on the list of documents filed in court in support of her case.
15. In her testimony, the Claimant largely reiterated the averments contained in her Statement of Claim. In addition, she testified that the reason advanced by the Respondents for terminating her employment was poor performance. She testified that she was never invited to any meeting to discuss her alleged underperformance, nor was she summoned by the 2nd Respondent in that regard.
16. She further testified that the 1st Respondent's letter dated 7th July 2024 informed all members of staff of the renewal of their contracts and that, following the assessment undertaken, she had qualified for renewal, her performance having been rated as good.
17. According to the Claimant, the minutes of the meeting held on 30th September 2024 did not indicate that she lacked schemes of work or that her lesson preparation was inadequate. The Claimant further testified that she was never issued with a notice to show cause or invited to appear before the Board of Management (BOM) to answer any allegations against her.
18. She maintained that she discharged her duties diligently and faithfully throughout her employment as a teacher.
19. The Claimant further testified that the attendance register, which had previously been kept at the school gate, was subsequently removed after which the 1st Respondent required teachers to sign the register from his office. She stated that on one occasion, the security guard informed her that the Principal had instructed him to hide the attendance register so that she would be unable to sign it. She explained that this occurred on a day when she was leaving school in the evening and found the register at the gate, although it had not been available when she reported to work that morning.
20. Regarding the allegation that she had absented herself from duty, she testified that during the examination period teachers only reported to school when they were scheduled to invigilate examinations. She stated that she had been assigned invigilation duties on two days in October 2024 when she attended and invigilated as required. She maintained that there was no evidence before the court demonstrating that she had absented herself from duty.
21. The Claimant also testified that she was subjected to sexual harassment by the 1st Respondent. She stated that she did not report the matter because the alleged harasser was the Principal, who also served as the Secretary to the Board of Management (BOM).
22. According to the Claimant, she was served with the letter terminating her employment on 10th October 2024 by the Secretary, although the letter had been backdated. It was her testimony that on 4th October 2024, the 1st Respondent made sexual advances towards her, which she rejected by informing him that she could not accede to his demands. Thereafter, he allegedly ignored her while greeting other teachers. The Claimant stated that the other teachers noticed the change in the 1st Respondent's behaviour and questioned her about it, although she only disclosed the matter to the teacher in charge of guidance and counselling. She further testified that shortly thereafter, she was served with the letter terminating her employment.
23. During cross-examination, the Claimant testified that she secured her current employment in January 2025. When referred to the letter alleging insubordination dated 4th April 2024, appearing at page 24 of the Respondents' bundle, she denied ever having been served with it. She further testified that she did not apply for formal leave because oral permission was sufficient. According to her, she had been unwell on 2nd and 4th April 2024. When referred to the school attendance register at page 44 of the Respondents' bundle, the Claimant reiterated that in October 2024 the 1st Respondent removed the register from the school gate and kept it in his office. She maintained that she reported to work until 31st October 2024. According to the Claimant, she did not sign the attendance register between 15th and 28th October 2024 because the 1st Respondent had moved it to his office and only summoned selected teachers to sign it. She maintained that although the register indicated that she had been absent, she was in fact present at work but was not afforded an opportunity to sign it. She added that by then she had already been issued with the termination letter requiring her to continue working until the end of October 2024.
24. The Claimant further testified that she lodged a complaint with the County Labour Officer on 14th October 2024 regarding her alleged unfair termination. She maintained that she remained at work from 14th to 28th October 2024. She acknowledged that poor performance was one of the grounds for termination under her contract of employment but denied that she had underperformed.
25. When referred to the KCSE performance analysis dated 28th January 2025 at page 6 of the Respondents' bundle, the Claimant acknowledged that the Biology results showed numerous grades of "E" and other low grades but pointed out that the document was signed and dated 29th January 2025, several months after the termination of her employment. She averred that the subject analysis contained in the minutes appearing at page 28 reflected a mean grade of "E" in Biology but maintained that the analysis was conducted after the termination of her employment and therefore could not have formed the basis for the decision to terminate her employment.
26. When referred to the minutes of the Board meeting held on 1st July 2024 at page 30 of the Respondents' bundle, the Claimant testified that although the Director of Studies (DOS) and Deputy Academic Administrator (DAA) had allegedly expressed concerns regarding her performance, those concerns were never communicated to her. She maintained that she never attended any meeting at which her performance was discussed and was never afforded an opportunity to respond to the allegations of poor performance.
27. When referred to her Certificate of Electronic Evidence dated 6th November 2024, the Claimant conceded that the messages did not contain any express coercive language. She further admitted that she did not report either the alleged threats or the alleged sexual harassment to the police. She also testified that she did not inform the teacher in charge of guidance and counselling that she had been sexually harassed, but only that the Principal had begun ignoring her.
28. The Claimant further testified that one of the grounds for termination under her contract was the deployment of a teacher with her subject combination by Teachers Service Commission (TSC), although that never occurred. In this regard, she stated that there were three teachers with her subject combination, being Mr. Tum, Mr. Mayo, and herself, while Mr. Cheruiyot taught Chemistry and Biology and not Biology and Agriculture.
29. She stated that upon termination of her employment, she was paid Kshs. 36,900, being salary for the period 1st to 14th October 2024 together with pay in lieu of notice. She testified that she completed the clearance process immediately after receiving the termination letter but was not issued with a certificate of service.
30. Upon re-examination, the Claimant testified that she was not the only teacher handling Biology, as the school had four streams and four Biology teachers, each teaching different classes. She stated that she taught Biology in Form Four West and also taught Agriculture, in which her students performed well. The Claimant maintained that the other Biology teachers were not terminated despite teaching the same subject. She further testified that she never attended any Board of Management meeting nor was she afforded an opportunity to respond to any allegations regarding her performance contained in the Board minutes.
31. On behalf of the Respondents, the 1st Respondent testified as RW1. He adopted his witness statement dated 7th August 2025 as his evidence in chief and relied on the documents contained in the Respondents' bundle.
32. RW1 testified that the Claimant's employment was terminated on grounds of poor performance, gross misconduct and absenteeism from duty. He stated that the Claimant had been assigned duties which she failed to perform and that her performance in Biology was unsatisfactory. It was his testimony that the Board of Management (BOM) authorized him to issue the letter of termination to the Claimant.
33. RW1 further testified that the Claimant had been assigned examination invigilation duties but failed to report to school and did not seek permission for her absence. He stated that where a teacher required permission to be absent from school, the teacher was required to apply for leave and would be issued with a leave-out sheet. According to him, there was no leave-out sheet issued to the Claimant covering the period between 15th and 31st October 2024.
34. On the issue of performance, RW1 testified that the Claimant had been assigned to teach Biology. He further stated that although she had also been allocated Agriculture, it was her performance in Biology that was poor. Referring to the examination analysis at page 6 of the Respondents' bundle, RW1 testified that the Biology results for the 2024 examinations reflected numerous grades of D, D- and E, demonstrating poor performance by the students. He stated that this prompted complaints from the Deputy Principal and the Board of Management, as reflected in the minutes of the meeting held on 1st July 2024.
35. RW1 further referred to the Board minutes of 13th September 2024, which, according to him, resolved that the Claimant was underperforming and should be relieved of her duties. He testified that the Claimant did not attend the Board meeting held on 1st July 2024.
36. According to RW1, although the Claimant's employment was due to terminate on 31st October 2024, she stopped reporting to work on 14th October 2024 without offering any explanation for her absence.
37. RW1 denied the Claimant's allegations of sexual harassment. He testified that those allegations were only made after the Claimant had been served with the letter of termination. He admitted sending the Claimant text messages asking whether they could have a relationship but maintained that she willingly responded to the messages and that there was no coercion. He reiterated that the decision to terminate the Claimant's employment was justified on account of poor performance, misconduct and absenteeism.
38. During cross-examination, RW1, while referring to the letter dated 4th April 2024, testified that the Claimant had absented herself from duty on 3rd and 4th April 2024. He stated that she had been assigned examination invigilation duties on 2nd and 4th April 2024 and that the letter complained that she had failed to invigilate on those dates and had also been absent on 3rd April 2024. He conceded, however, that the Respondents had not produced an attendance register or attendance list to support those allegations.
39. RW1 further admitted that the Claimant was not the only Biology teacher in the school and acknowledged that the examination results ought ordinarily to be attributed to all the Biology teachers. He denied that the Claimant had been discriminated against and stated that concerns regarding her performance had also been raised by other teachers, including the Deputy Administrator, who was himself a Biology teacher.
40. RW1 testified that the termination letter was issued on 1st October 2024 and that the Respondents relied on internal examination results in assessing the Claimant's performance. He conceded that those internal examination results had not been produced before the court. He further testified that his assessment of the Claimant's performance was based on reports from her immediate supervisor, although no written complaints against the Claimant had been produced.
41. RW1 further testified that the Claimant's contract of employment had been renewed both in 2023 and 2024, with the latest renewal taking effect on 1st July 2024 after it had been established that she had met the required standards. He acknowledged that the assessment report dated 7th July 2024 contained no finding that the Claimant had failed to meet the applicable performance standards.
42. When referred to the Internal Quality Standards Assessment letter dated 7th July 2024 (Document No. 5 in the Claimant's bundle), RW1 acknowledged that the document showed that the Claimant taught Biology in Forms 1 West, 3 North and 4 West, and Agriculture in Forms 1C, 1 South, 2 North and Form 4. He nevertheless maintained that, in practice, the Claimant primarily taught Biology.
43. RW1 further testified that the Claimant was not afforded an opportunity to defend herself before her employment was terminated. He stated that although she was issued with a notice of termination, she was not invited to a disciplinary hearing regarding the allegations levelled against her. He reiterated that the grounds for termination were those stated in the letter of termination.
44. RW1 further testified that the Claimant was absent from work between 14th and 31st October 2024. When referred to the Claimant's Certificate of Service, he acknowledged that he had issued it and confirmed that it indicated that the Claimant had served the 2nd Respondent from 1st July 2022 to 31st October 2024. He however maintained that the Claimant had ceased reporting to work on 14th October 2024. Regarding the attendance register, RW1 testified that it was accessible to all teachers.
45. Upon re-examination, RW1 maintained that he did not sexually harass the Claimant. He further testified that the Claimant was the only Board of Management teacher assigned to teach Biology. He added that there was no requirement for the Director of Studies to communicate concerns regarding a teacher's performance to the Principal in writing, as such concerns could be raised and discussed during meetings of the Board of Management.
Submissions
46. At the close of the Respondents’ case, the court directed parties to file written submissions. The Respondent’s submissions are dated 12th March 2026. I have perused the record and did not find submissions by the Claimant. By and large, the Respondents’ submissions reiterated the positions taken by the respective parties.
DETERMINATION
47. From the pleadings on record, the evidence of the parties and the submissions filed, the issues that arise for determination in this case are: -
i. Whether the Claimant was subjected to sexual harassment,
ii. Whether the termination of the Claimant’s employment was justified,
iii. Whether the procedure followed was in accordance with the Employment Act,
iv. Whether the reliefs sought are merited.
Whether the Claimant was subjected to sexual harassment
48. The Claimant contends that the 1st Respondent subjected her to sexual harassment and that her refusal to accede to his sexual advances ultimately culminated in the termination of her employment. The Respondents, on the other hand, deny the allegation and maintain that the termination of the Claimant's employment was solely attributable to poor performance, absenteeism and misconduct.
49. Section 6 of the Employment Act prohibits sexual harassment in the workplace and imposes upon employers a duty to protect employees from such conduct. The provision contemplates unwelcome sexual advances, requests for sexual favours, sexually suggestive language or gestures, or other conduct of a sexual nature where submission to, or rejection of, such conduct is made a basis for employment decisions, or where the conduct has the purpose or effect of creating an intimidating, hostile or offensive working environment.
50. The burden of proving the allegation of sexual harassment rests with the Claimant on a balance of probabilities. Since incidents of sexual harassment often occur in private, direct evidence may not always be available. The Court must therefore consider all the evidence presented, including the conduct of the parties at the time, the documents produced and the credibility of the witnesses, in determining whether the allegation has been proved.
51. The Claimant herein testified that the 1st Respondent persistently made sexual advances towards her, invited her to dinner and outings and assigned her duties closer to his office. She further testified that upon rejecting his advances on 4th October 2024, the 1st Respondent became hostile towards her, ignored her, and shortly thereafter caused her employment to be terminated. She explained that she did not report the alleged harassment because the 1st Respondent was both the Principal and the Secretary to the Board of Management.
52. In support of her case, the Claimant relied on WhatsApp conversations exchanged between herself and the 1st Respondent. During cross-examination, she acknowledged that the conversations did not contain express coercive language. She however maintained that the 1st Respondent's insistence on pursuing a romantic relationship amounted to coercion. She also admitted that she neither reported the alleged sexual harassment to the police nor informed the teacher in charge of guidance and counselling that she had been sexually harassed, stating instead that she only informed the teacher that the Principal had begun ignoring her.
53. In his defence, RW1 denied sexually harassing the Claimant. He admitted sending the Claimant text messages expressing his desire to have a relationship with her but maintained that the conversations were consensual and that the Claimant voluntarily responded to the messages. He denied making threats or coercing the Claimant and asserted that the allegations of sexual harassment only arose after the Claimant had been served with the termination letter.
54. I have considered the WhatsApp messages together with the evidence given by both parties. While the messages show that the 1st Respondent was interested in having a romantic relationship with the Claimant, they do not show that he threatened her, asked for sexual favours, or made her job depend on accepting his advances. I have also considered the Claimant's explanation that she did not report the alleged harassment because the 1st Respondent was the Principal and Secretary to the Board of Management. Although that explanation is understandable, the Claimant did not report the matter to any other person or authority, including the teacher in charge of guidance and counselling. There is no evidence of anguish on her part in the WhatsApp messages. On the contrary, the communication is consensual. This does not by itself defeat her claim, but it is one of the factors the Court has considered in deciding whether the allegation has been proved.
55. Although the evidence demonstrates that the 1st Respondent pursued a personal or romantic relationship with the Claimant, it falls short of establishing that her rejection of those advances was made a condition of her employment or that it directly resulted in the termination of her employment. Looking at the evidence presented in court as a whole, I find that the Claimant has not proved, on a balance of probabilities, that the conduct of the 1st Respondent amounted to sexual harassment within the meaning of section 6 of the Employment Act.
Whether the termination of the Claimant’s employment was justified.
56. Section 45(2) of the Employment Act prohibits an employer from terminating the contract of an employee except for valid reason and upon compliance with fair procedure. Section 43(1) of the Employment Act places the burden of proving the reasons for termination on the employer. Where the employer fails to do so, such termination is deemed unfair within the meaning of Section 45. The section provides:
“In any claim arising out of termination of a contract, the employer shall be required to prove the reason or reasons for the termination, and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of Section 45.”
57. The Respondents maintained that the Claimant's employment was terminated on account of poor performance, absenteeism and gross misconduct. According to RW1, the Claimant performed poorly in the Biology subject, failed to attend examination invigilation duties, absented herself from work without permission and failed to perform duties assigned to her. RW1 further testified that poor performance constituted one of the grounds for termination under the Claimant's contract of employment and that the Board of Management had resolved that she be relieved of her duties.
58. The Claimant denied the allegations. She maintained that she had never been informed that her performance was unsatisfactory, had never been invited to any meeting where her performance was discussed, and had never been issued with a notice to show cause.
59. She further testified that her contract had been renewed in July 2024 after an assessment in which her performance had been rated as satisfactory. She also denied absconding duty and explained that during the examination period teachers only reported on the days they had been assigned to invigilate examinations. Regarding the attendance register, she maintained that the register had been removed from the school gate and kept in the Principal's office, thereby denying her an opportunity to sign it.
60. Upon evaluating the evidence placed before the Court, I find that the Respondents did not discharge the burden imposed by section 43 of the Employment Act. Although the Respondents alleged poor performance, RW1 conceded during cross-examination that the assessment report dated 7th July 2024 contained no finding that the Claimant had failed to meet the required performance standards. He further admitted that the internal examination results allegedly relied upon to assess the Claimant's performance were not produced before the Court.
61. Moreover, from the evidence on record, the examination analysis showing poor Biology performance was prepared in January 2025, several months after the Claimant's employment had already been terminated and therefore could not reasonably have informed the decision to terminate her employment.
62. In addition, the allegation that the Claimant's poor performance was solely responsible for the Biology results was not satisfactorily established. Both the Claimant and RW1 acknowledged that Biology was taught by more than one teacher. In those circumstances, the Respondents did not place before the Court any evidence demonstrating that the poor performance in the subject was solely attributable to the Claimant or that her individual performance had been objectively evaluated against known performance standards.
63. In Kenfreight (E.A.) Limited v Benson K.Nguti[2016] KECA 688 (KLR), the Court of Appeal emphasized that it is not enough for an employer to cite poor performance, that there must be proof that the employee was made aware of the shortcomings and given an opportunity to improve.
64. As regards absenteeism, the Respondents alleged that the Claimant absented herself from work without permission. However, RW1 conceded that the Respondents did not produce the attendance records or any other documentary evidence demonstrating the alleged absenteeism. The Court is therefore left with unsubstantiated allegations, which fall short of the evidential burden imposed upon an employer by section 43 of the Employment Act.
65. The allegation of gross misconduct also remained unsupported by cogent evidence. Other than the allegations of absenteeism and poor performance, which have not been proved to the required standard, the Respondents did not place before the Court evidence of any independent acts of misconduct warranting the Claimant's dismissal.
66. In the circumstances, I find that the Respondents failed to establish, on a balance of probabilities, that they had a valid and fair reason for terminating the Claimant's employment as required under sections 43 and 45 of the Employment Act. Consequently, the decision of the Respondents to terminate the Claimant's employment was substantively unfair.
Whether the procedure followed was in accordance with the Employment Act
67. Section 41 of the Employment Act provides: -
“Subject to section 42 (1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.”
68. The import of section 41 of the Employment Act has been considered in numerous decisions of the superior courts. In Postal Corporation of Kenya v Tanui [2019] KECA 489 (KLR), the Court of Appeal held: -
42. It is our further view that Section 41 provides the minimum standards of a fair procedure that an employer ought to comply with. The section provides for Notification and hearing before termination on grounds of misconduct" in the following manner:-
"(1)Subject to Section 42 (1), an employer shall before terminating the employment of an employee, on the grounds of misconduct; poor to performance or physical in capacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.”
“(2)Notwithstanding any other provision of this part, an employer shall, before terminating the employment of an employer or summarily dismissing an employee under Section 44 (3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, chosen by the em
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