Orkistudio Company Ltd v MAV & another (Civil Appeal 148 of 2020) [2026] KECA 1065 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed employers can be liable for workplace sexual harassment, and probationary employees are still protected from unfair dismissal.
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 1st respondent proved on a balance of probabilities that the 2nd respondent sexually harassed her
- 2.Whether an employer can be held vicariously liable for acts of sexual harassment committed by its employee at the workplace, and the meaning of 'workplace'
- 3.Whether a probationary employee is entitled to due process prior to termination of his/her employment
- 4.Whether the award of damages to the 1st respondent was merited
Key legal issues
#Whether termination of a probationary employee was procedurally and substantively unfair
Yes. The employer produced no evidence of poor performance; the termination letter gave no reasons; and following Kibichi v Mount Kenya University and Red Lands Roses v Mugo, section 42(1) cannot be read to deny probationers a fair hearing, the same being inconsistent with Articles 41 and 47 of the Constitution.
The Court re-evaluated the record and found no evidence that alleged poor performance was ever communicated to the employee. Statutes must be construed to conform with the Constitution; as pre-2010 legislation, the Employment Act must be read with alterations necessary to bring it into conformity. Only the section 41 hearing requirements are abrogated during probation, not the right not to be unfairly terminated under section 45.
Whether sexual harassment was proved to the required standard
Yes. Applying both subjective and objective tests to the multiple unwelcome incidents (unwelcome physical contact, sexualised calls and texts, threats of termination), a reasonable person would find the conduct offensive and dignity-violating; multiple incidents are an aggravating factor.
The Court adopted the dual subjective/objective framework (Harris v Forklift Systems; Ellison v Brady) and the South African authority that intent is irrelevant if the recipient confirms the conduct was uninvited. The power imbalance between a senior officer and a newly employed probationer compounded the offence.
Whether the appellant employer could be held liable for the 2nd respondent's sexual harassment
Yes. The employer neither demonstrated that the 2nd respondent fell outside the statutory definition of employee nor that it took reasonably practicable protective steps; its only response to the complaint was to terminate the complainant.
Drawing on National Union of Metalworkers of South Africa v PRASA, the Court applied four criteria: occurrence at the workplace, reporting, employer failure to act, and failure to prove statutory compliance. The appellant showed no evidence of training employees on its policy or of protective measures.
Whether the awards of damages were merited
Yes. Guided by the Vento bands compensating injury to feelings, the Court found no basis to interfere with Kshs.1,000,000 for sexual harassment, one month's notice pay, and twelve months' salary as maximum compensation for unfair termination.
It had not been shown that the awards were extremely high or that the learned judge improperly exercised discretion. The trial judge, having found harassment and that the dismissal was linked to refusal of sexual advances, was entitled to award maximum compensation.
Legal principles established
#- The definition of a workplace for sexual harassment purposes is functional, not strictly geographical, extending to any location, virtual space or event connected with the course of employment
- Section 42(1) of the Employment Act, to the extent it excludes probationary employees from a fair hearing, is unconstitutional; probationers remain entitled to procedural and substantive safeguards (a valid reason) before termination
- The legal test for sexual harassment focuses on whether the conduct was objectively unwelcome, not on the perpetrator's subjective intention; conduct must be unwelcome, of a sexual nature, and violate the victim's dignity
- An employer is liable for workplace sexual harassment by a fellow employee where the employer fails to take reasonable protective steps, including having and operationalising a sexual harassment policy, once a complaint is brought to its attention
- Pleadings are not evidence; unproved averments cannot found reliefs unless supported by evidence or express admission
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The judgment delivered by Abuodha, J. on 20th February 2020 in Eldoret ELRC No. 265 of 2018 is affirmed
- 3.The appellant shall pay the 1st respondent the costs of this appeal and the proceedings before the trial court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court, Eldoret
- ELRC Case No. 265 of 2018 (Margaret Abukutsa Vidolo vs Orkidstudio Company Limited and Allan Brooks)
- Jurisdiction invoked
- First appellate jurisdiction over the ELRC under the Employment and Labour Relations Court Act and Article 164(3) of the Constitution (appeal as of right on fact and law)
Relief refused
#The appellant's prayer to set aside the trial court's judgment and decree
The appeal was found devoid of merit on all grounds
Costs
The appellant shall pay the 1st respondent the costs of this appeal and the proceedings before the trial court.
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.
Accordingly, we afirm the judgement delivered by Abuodha, J. on the 20th February 2020 in Eldoret ELRC No. 265 of 2018. The appellant shall pay the 1st respondent the costs of this appeal and the proceedings before the trial court.
Therefore, we afirm the trial court’s finding that the 1st respondent’s termination was procedurally unfair and illegal for violating her rights guaranteed under Articles 41 and 47 of the Constitution.
Courts across various jurisdictions hold that a workplace is not limited to the physical ofice or corporate building, but extends to any location, virtual space or event where an employee is carrying out workrelated duties, interacting with colleagues or operating within the course of employment.
Even a single serious incident can meet the threshold. However, multiple incidents as in this case constitute an aggravating factor.
This Court has consistently held that pleadings are merely statement of a party's case and do not constitute evidence.
We find that the grounds of appeal as drafted ofiend Rule 88 (1) of the Court of Appeal Rules 2022 because they are argumentative.
Issues in the judgment
#Internal inconsistency in dates: the response to the claim is dated '13th November 2013' while the termination was in 2018 and the response elsewhere is referred to as dated 13th November 2018
Contradictory dates for termination: the Court elsewhere states the termination took place on 12th October 2018, while the record consistently refers to a termination letter dated 28th September 2018
The Sexual Offences Act is described as 'no. 3 of 2016' in the relief claimed, though the Sexual Offences Act is No. 3 of 2006
The 1st respondent is twice misdescribed as 'the 1st appellant' when discussing the merits of the compensation
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Orkistudio Company Ltd v MAV & another (Civil Appeal 148 of 2020) [2026] KECA 1065 (KLR)", Case Analysis (2026). Court of Appeal at Nakuru, Civil Appeal (appeal against Eldoret ELRC Case No. 265 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1065/eng@2026-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.