St Leonard’s Maternity & Nursing Home v LMM (Civil Appeal 59 of 2019) [2023] KECA 1148 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed employers can't dodge liability through secondments, and must have sexual harassment policies or risk losing harassment and unfair dismissal claims.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent was an employee of the appellant despite alleged secondment to Summit Medicare Ltd
The appellant was the respondent's employer; secondment did not break the employment relationship.
The Court found a chain of evidence connecting the respondent to the appellant: the NSSF membership statement listed the appellant as employer, one Dr Nyauma was a director of both entities, and DW1 signed letters for both. Relying on Kenya Methodist University v Kaungania, the Court held that secondment leaves the nominal employer's duties intact, so the appellant could not evade liability.
The standard and burden of proof in sexual harassment and discrimination claims
Sexual harassment is a genre of discrimination; the claimant bears the initial evidential burden under section 5(7) of the Employment Act, which then shifts to the employer to disprove the allegations.
Relying on Ooko v SRM, the Court held sexual harassment is a genre of discrimination, importing the section 5(7) Employment Act burden. Citing Samson Gwer v KEMRI, the claimant must first lay substantial material before the court; only then does the burden fall on the employer. The respondent's sworn, uncontroverted narrative of night drug deliveries, advances, transfer while pregnant, and termination discharged that burden, and the appellant's bare denials failed to rebut it.
Whether sexual harassment claims require direct evidence given they occur in private
Such cases are personalized and typically occur without witnesses; an inference from a chain of events viewed from the reasonable person's perspective suffices, and victims cannot be blamed for non-existent reporting channels.
The Court noted sexual harassment generally occurs in private spaces, pitting perpetrator against complainant. In the absence of a sexual harassment policy under section 6(2) of the Employment Act, it would be improper to fault the victim for not using non-existent reporting channels. The sequence of advances, refusal, transfer while expectant, and termination made the respondent's story believable and unrebutted.
Whether the respondent was unfairly terminated
The termination was precipitated by the respondent's refusal to yield to DW1's sexual advances and was therefore unfair.
Following from the finding on liability, the Court found the timing of the rejection letter dated December 1, 2014 - arriving on the deadline for applications - and the termination letter of December 5, 2014 showed the process was a formalization of termination prompted by the respondent's refusal of advances. No explanation was tendered for that timing, which the Court found questionable.
Legal principles established
#- Sexual harassment is a genre of discrimination and claims of sexual harassment attract the burden of proof prescribed under section 5(7) of the Employment Act: the claimant bears an initial evidential burden which, once discharged, shifts to the employer to disprove the claims.
- An employer who seconds an employee to another entity remains the nominal employer and cannot escape liabilities arising from the employment relationship.
- It is improper to blame a victim of sexual harassment for not following reporting channels where no sexual harassment policy or reporting modalities exist in the workplace.
Court orders
#- 1.The appeal is dismissed with costs to the respondent
- 2.The appellant to bear the costs of the appeal
- On appeal from
- Employment and Labour Relations Court at Kericho
- Cause No. 53 of 2018
- Jurisdiction invoked
- First appeal under rule 31(1)(a) of the Court of Appeal Rules, 2022
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Orkistudio Company Ltd v MAV & another (Civil Appeal 148 of 2020) [2026] KECA 1065 (KLR)[2026] KECA 1065 (KLR)29 May 2026applied
- Kinda v Aiducation International (K) & another (Civil Appeal E047 of 2022) [2026] KECA 350 (KLR)[2026] KECA 350 (KLR)27 Feb 2026followed
- Kirui v Ekaterra Tea Kenya PLC (Employment and Labour Relations Cause E013 of 2023) [2024] KEELRC 1747 (KLR)[2024] KEELRC 1747 (KLR)9 Jul 2024
Cite this brief
#Cite this brief
Caselaw, "St Leonard’s Maternity & Nursing Home v LMM (Civil Appeal 59 of 2019) [2023] KECA 1148 (KLR)", Case Analysis (2023). Civil Appeal No. E018 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1148/eng@2023-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.