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Court of AppealDismissedCivil Appeal No. E018 of 2023· [2023] KECA 1148 (KLR)

St Leonard’s Maternity & Nursing Home v LMM (Civil Appeal 59 of 2019) [2023] KECA 1148 (KLR)

Court of Appeal
22 September 2023
3,264 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was a first appeal against a judgment of the Employment and Labour Relations Court at Kericho (Marete J, October 9, 2018) in which the respondent employee was awarded damages for sexual harassment, discrimination, and wrongful termination against the appellant nursing home. The appellant advanced six grounds, including that the trial court treated pleadings and submissions as evidence, misdirected itself on the standard of proof, and ignored the distinct corporate identity of Summit Medicare Ltd. The Court of Appeal (Ochieng, Achode and Korir JJA) confined the appeal to two issues: whether sexual harassment and discrimination were proved, and whether the termination was unfair. The Court held that sexual harassment is a genre of discrimination attracting the section 5(7) Employment Act burden of proof, guided by Samson Gwer v KEMRI: the claimant bears an initial evidential burden which shifts to the employer once discharged. On the evidence, including the NSSF statement naming the appellant as employer and shared directorship and management between the two entities, the Court found the appellant was the respondent's employer notwithstanding the alleged secondment, following Kenya Methodist University v Kaungania. The respondent's sworn, largely uncontroverted account, viewed through the reasonable person test drawn from Ooko v SRM, established a prima facie case; the appellant's bare denials failed to rebut it, and it could not blame the victim for omitting to use reporting channels that did not exist in the absence of a sexual harassment policy. The timing of the rejection and termination letters confirmed unfair termination. The Court declined to revisit quantum since the appellant had not challenged the awards. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Whether the respondent was an employee of the appellant despite alleged secondment to Summit Medicare Ltd

Holding

The appellant was the respondent's employer; secondment did not break the employment relationship.

Reasoning

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.

p. 5
02

The standard and burden of proof in sexual harassment and discrimination claims

Holding

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.

Reasoning

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.

p. 6
03

Whether sexual harassment claims require direct evidence given they occur in private

Holding

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.

Reasoning

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.

p. 5
04

Whether the respondent was unfairly terminated

Holding

The termination was precipitated by the respondent's refusal to yield to DW1's sexual advances and was therefore unfair.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed with costs to the respondent
  2. 2.The appellant to bear the costs of the appeal

Authorities

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Legislation

  • Employment Actsection 5(3)(a)
  • Employment Actsection 5(7)
  • Employment Actsection 6(1)
  • Employment Actsection 6(2)
  • Court of Appeal Rules, 2022rule 31(1)(a)
  • African Charter on Human and Peoples' Rights on the Rights of Women in AfricaArticle 1(G)

Cases cited (13)

  • Godwill and Trust Investment Ltd v Will and Bush Ltd [2011] LCN/B820 (SC)
    [2011] LCN/B820 (SC)
  • Maureen Onsongo v EOH Ltd & EOH/Copy Cat Ltd Company [2021] eKLR
    [2021] eKLR
  • CMC Aviation Ltd v Cruisar Ltd [1987] KLR 103
    [1987] KLR 103
  • Joseph Murangi & Another v Beatrice Kainda Kaibiria, Civil Appeal No 175 of 1996
    Civil Appeal No 175 of 1996
  • Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another [2014] eKLR
    [2014] eKLR
  • Kenya Methodist University v Kaungania & Another [2022] KECA 90 (KLR)
    [2022] KECA 90 (KLR)
  • Furaha Menza Nzai v Carlos Angore [2019] eKLR
    [2019] eKLR
  • Gichuru v Package Insurance Brokers Ltd [2021] KESC 12 (KLR)
    [2021] KESC 12 (KLR)
  • Abok James Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR
    [2013] eKLR
  • Ooko & another v SRM & 2 others [2022] KECA 44 (KLR)
    [2022] KECA 44 (KLR)
  • Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others [2020] eKLR
    [2020] eKLR
  • R v Birmingham City Council ex parte EOC (1989) AC 1155
    (1989) AC 1155
  • Oncale v Sundowner Offshore Services 523 US 75 (1998)
    523 US 75 (1998)
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.