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ELRCPartially AllowedCause No 1891 of 2015· [2019] KEELRC 51 (KLR)

Leah Wanjiku Wambu v Unity College of Professional Studies [2019] KEELRC 51 (KLR)

Employment and Labour Relations Court
19 December 2019
BOBYRAM ONGAYA
1,618 words in judgment
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The bottom line

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A Kenyan employment court dismissed a sexual harassment and unfair dismissal claim, awarding only unpaid salary and a certificate of service.

What this practically means

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Executive summary

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The claimant, employed as an Administrator at the respondent's learning institution from 01.05.2013 at a gross monthly salary of Kshs.25,000, sued for a declaration of wrongful and unfair termination, six months' salary in lieu, October 2013 salary, a certificate of service and general damages. She alleged she was dismissed because she declined sexual advances by the Director, Paul Kanyi, that she was locked out on 15.10.2013, and that she worked unpaid overtime. The respondent admitted the employment but alleged the claimant was insubordinate, refused to sign the staff attendance register, received warning letters for misconduct, and absconded duty on 14.10.2013, never returning; it denied any dismissal or lockout. The Court found the parties were in a contract of service, but rejected the sexual harassment allegations as belated, unreported at the time, and contradicted by the claimant's own witness statement alleging resignation. It held she resigned from employment when she failed to report on duty on 14.10.2013, and that her prior misconduct would have significantly diminished any compensation under section 90 of the Employment Act in any event. The unfair termination claim failed. However, the claimant was held entitled to a certificate of service under section 51 and to 13 days' unpaid salary for October 2013, prorated at Kshs.10,483.90, payable by 31.01.2020 with interest at Court rates thereafter. Each party was ordered to bear its own costs. Judgment was delivered at Nairobi on 19th December 2019 by Byram Ongaya, Judge.

Key legal issues

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01

Whether termination was unfair

Holding

Termination not unfair; the claimant resigned by absconding duty on 14.10.2013 and the sexual harassment claim was an afterthought

Reasoning

The claimant never reported the alleged sexual advances until after she left employment; her witness statement alleging resignation contradicted her oral testimony of being locked out; the pastor's letter was belated and untested. The respondent's witnesses consistently showed she absconded, refused to sign the attendance register and received warning letters.

p. 2
02

Residual remedies

Holding

Certificate of service due under section 51; 13 days' salary for October 2013 awarded prorate

Reasoning

Despite the failure of the unfair termination claim, the claimant remained entitled to a certificate of service under section 51 of the Employment Act. RW1 admitted 13 days worked in October 2013 were unpaid, computed at 13/31 x Kshs.25,000 = Kshs.10,483.90.

p. 2

Legal principles established

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  • An employee who significantly contributes to her own separation through misconduct diminishes the chances for compensation under section 90 of the Employment Act
  • Contradictory evidence on a material issue cannot be trusted

Court orders

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  1. 1.The declaration that the claimant has failed to establish a case for sexual harassment and unfair termination
  2. 2.The respondents to deliver the certificate of service and to pay the claimant Kshs.10,483.90 by 31.01.2020, failing interest at Court rates from the date of filing the suit till full payment
  3. 3.Each party to bear own costs of the suit

Authorities

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Legislation

  • Employment Act, 2007section 90
  • Employment Act, 2007section 51
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Leah Wanjiku Wambu v Unity College of Professional Studies [2019] KEELRC 51 (KLR)", Case Analysis (2019). Cause No 1891 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/51/eng@2019-12-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.