T M M v China Civil Engineering Construction Corporation (K) Limited [2018] KECA 556 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a worker's Kshs 4 million sexual harassment claim because she never reported the harassment when it happened.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court erred in declining to award compensation for exposure to sexual harassment and invasion of human dignity and privacy
- 2.Whether the appellant proved her allegations of sexual harassment to the required standard
Key legal issues
#Whether the appellant proved her claim of exposure to sexual harassment
The court held that the claim of sexual harassment was an afterthought and not proved to the required standard; the appellant did not report the alleged advances to the HR Manager, did not escalate the matter, and did not mention prior harassment in her police statement.
The court reappraised the evidence as a first appeal. It noted that although the appellant claimed to have been propositioned with money and a salary increase, she never reported this to the Human Resource Manager, the department charged with handling such complaints, nor escalated it after Mr. Hemming did nothing. Her police statement of 3rd June 2016 mentioned only the assault on her breasts, not prior harassment. The court therefore agreed with the trial judge that the claim was not well founded and rightly dismissed.
The scope of the appeal
The appeal was confined solely to the sexual harassment claim; the remainder of the trial court's award was not open to revisit.
The appellant only challenged that part of the trial judgment declining compensation for sexual harassment. The awards for underpayment, one month's salary in lieu of notice and four months' compensation for unfair termination were not under challenge. The court therefore had no basis to disturb the rest of the award.
Legal principles established
#- On a first appeal, the Court of Appeal must reappraise the evidence adduced before the trial court critically and arrive at its own decision, in line with Rule 29(1) of the Court of Appeal Rules.
- A claim of sexual harassment must be proved to the required standard; allegations raised for the first time at trial without prior complaint, and absent from contemporaneous records such as police statements, may be treated as afterthoughts.
Court orders
#- 1.Dismissal of the appeal
- 2.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment & Labour Relations Court of Kenya at Mombasa
- ELC Cause No. 860 of 2016
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (Rule 29(1) of the Rules of this Court)
Relief refused
#Award of Kshs. 4,000,000.00 as compensation for exposure to sexual harassment
The claim of sexual harassment was not proved; it appeared to be an afterthought meant to aggravate damages, as the appellant never reported the alleged harassment to the Human Resource Manager or mentioned it in her police statement.
Costs
The appeal was dismissed with no orders as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In conclusion, we find this appeal devoid of merit and dismiss it with no orders as to costs.
This being a first appeal, as rightly observed by learned counsel for the appellant, it behooves us to reappraise the evidence adduced before the trial court critically and arrive at our own decision.
We find no evidence of sexual harassment prior to the assault incident. We agree with the learned Judge that the claim for sexual harassment was not well founded and was not proved to the required standard. It was rightly dismissed.
As this appeal was only in respect of the sexual harassment claim, we have no basis for revisiting the rest of the award.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "T M M v China Civil Engineering Construction Corporation (K) Limited [2018] KECA 556 (KLR)", Case Analysis (2018). Civil Appeal No. 52 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/556/eng@2018-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.