Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedPetition No E009 of 2020· [2021] KEELRC 1306 (KLR)

SOS v CWRL & 4 others [2021] KEELRC 1306 (KLR)

Employment and Labour Relations Court of Kenya
8 July 2021
4,129 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ordered a restaurant and its manager to pay a waiter over Kshs. 3 million for workplace sexual assault and unfair dismissal.

What this practically means

#

Executive summary

#
The Petitioner, a waiter employed by the 1st Respondent restaurant on 1st October 2019 at a monthly salary of Kshs. 12,000, petitioned the Employment and Labour Relations Court alleging that the 2nd Respondent, a senior manager, repeatedly sexually harassed him, sought anal sex, and assaulted him with a metallic cooking spoon, kicks and a wire rod, culminating in a whipping on 1st February 2020. He reported the assault at Kileleshwa Police Station (OB No. 32/2/2/2020), after which he was locked out of employment. He sought declarations that his summary dismissal was unfair; that the 1st and 2nd Respondents violated his constitutional rights; and that the 3rd to 5th Respondents (state agencies) denied him justice by allowing the deportation of the 2nd Respondent before trial. The 1st and 2nd Respondents filed no response, leaving the allegations uncontroverted. The Court found the employment relationship established, the dismissal unfair and unlawful under Sections 36, 41, 43 and 45 of the Employment Act, and the 1st Respondent vicariously liable for the 2nd Respondent's conduct under the Salmon Test as applied in the Lister v Hesley Hall line of authority adopted by the Court of Appeal in the Teachers Service Commission case. It declared violations of Articles 27(5), 28, 29(c)(d)(e)(f), 30(1), 41(2)(b) and 47(1). However, no cause of action was established against the 3rd to 5th Respondents, as the deportation was effected pursuant to a High Court order which they were bound to obey, and the judiciary was not enjoined. Judgment was entered jointly and severally against the 1st and 2nd Respondents for Kshs. 3,000,000 in general damages and Kshs. 72,000 compensation for unfair dismissal, with interest and costs.

Key legal issues

#
01

Whether an employer-employee relationship existed between the petitioner and the 1st Respondent despite absence of a written contract

Holding

The 1st Respondent was the employer and the 2nd Respondent a senior colleague, the pleadings on status not having been controverted; the failure to file any response left the petitioner's allegations uncontradicted.

Reasoning

The 1st and 2nd respondents did not file any replying affidavit or response to the amended petition. The pleadings on the status and domicile of the 1st and 2nd respondents were therefore uncontroverted, leaving the Court no choice but to make a finding of fact on the employment relationship and the seniority of the 2nd Respondent.

p. 4
02

Whether the 1st Respondent is vicariously liable for the assaults and sexual harassment by the 2nd Respondent

Holding

Yes. The conduct was so closely connected to the employment that vicarious liability lies against the employer under the Salmon Test and Lister v Hesley Hall line of authority.

Reasoning

Applying the Salmon Test and the Court of Appeal decision in Teachers Service Commission v WJ (relying on Lister v Hesley Hall), the Court found the unauthorized punishment of staff was so closely connected to the employment that vicarious liability attaches. The 1st Respondent fostered an enabling environment for the assaults and mandated the 2nd Respondent to punish staff.

p. 5
03

Whether the summary dismissal of the petitioner was unfair and unlawful

Holding

Yes. The dismissal was without valid reason, without notice and without due process, failing substantive and procedural fairness under Sections 36, 41 and 45 of the Employment Act, and was in retaliation for reporting violations to the police.

Reasoning

The petitioner served only about three months but was locked out and summarily dismissed for reporting the 2nd Respondent's violations to the police. Citing Fredrick Saundu Amolo v Principal Namanga Mixed Day Secondary School, the Court held the dismissal failed the requirements of substantive and procedural fairness, entitling the claimant to compensation under Section 49(1)(c) and (4).

p. 6
04

Whether the 3rd to 5th respondents (state agencies) violated the petitioner's rights by the deportation of the 2nd Respondent before trial

Holding

No. The deportation was effected pursuant to a High Court order which the agencies were bound to obey, and the petitioner adduced no evidence of violation by them; the judiciary, which ordered the deportation, was not joined.

Reasoning

The respondents placed the blame for the premature deportation at the doorstep of the High Court, which curtailed ongoing investigations despite the agencies having secured 15 days' remand orders. The petitioner did not file a supplementary affidavit to contradict this. Without joining the judiciary, no cause of action based on omission was established against the state agencies.

p. 5
05

What quantum of damages is appropriate for the human rights violations and unfair dismissal

Holding

General damages of Kshs. 3,000,000 for the human rights violations and Kshs. 72,000 (six months' salary) compensation for the unfair summary dismissal, guided by comparable awards in NML v Peter Petrausch, JWN v Securex Agencies and the Teachers Service Commission case.

Reasoning

The petitioner suffered extreme cruelty, humiliation, psychological trauma, pain, nightmares and hallucinations from continuous sexual harassment, corporal punishment, verbal abuse and confinement. Comparing awards of Kshs. 1,000,000 to 3,000,000 in cited authorities, the Court awarded Kshs. 3,000,000, and separately six months' salary under Section 49 given only three months' service and the concurrent human rights award.

p. 6

Legal principles established

#
  • An employer is vicariously liable for wrongful acts of its employee done in the course of employment, including unauthorized conduct so closely connected to the employment that it is deemed committed in the course of employment.
  • Summary dismissal without valid reason, notice or due process violates Sections 36, 41, 43 and 45 of the Employment Act and attracts compensation.

Court orders

#
  1. 1.Dismissal of the suit as against the 3rd to 5th respondents with no order as to costs.
  2. 2.Judgment entered in favour of the petitioner against the 1st and 2nd respondents jointly and severally.
  3. 3.General damages in the sum of Kshs. 3,000,000 for violation of the Petitioner's human rights and fundamental freedoms under Article 27(5), 29(c)(d)(e) and (f), 30(1), 41(2)(b) and 47(1).
  4. 4.Kshs. 72,000 in compensation for the unlawful and unfair summary dismissal.
  5. 5.Total award of Kshs. 3,072,000.
  6. 6.Interest at Court rates from date of Judgment till payment in full.
  7. 7.Costs of the suit against the 1st and 2nd respondents.

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 2, 19, 20, 21, 27(5), 28, 29(c)(d)(e)(f), 30(1), 41(2)(b), 47(1), 48, 162(2), 159(2)(d)
  • Employment Act, 2007Sections 9, 35, 36, 41, 43, 45, 49(1)(c) and (4)
  • Employment and Labour Relations Court Act, 2011Section 12
  • Evidence Act, Cap. 80Section 106B(4)
  • Civil Procedure Act, Chapter 21Section 18
  • Civil Procedure RulesOrder 21 rule 1
  • International Labour Organization Convention (C064 - Contracts of Employment (Indigenous Workers) Convention, 1939 (No. 64)Article 3

Cases cited (5)

  • Teachers Service Commission -vs- WJ and 5 others (2020) eKLR
    (2020) eKLR
  • Lister -vs- Hasley Hall Limited
  • NML -vs- Peter Petrausch [2015] eKLR
    [2015] eKLR
  • JWN -vs- Securex Agencies (K) Limited [2018] eKLR
    [2018] eKLR
  • Fredrick Saundu Amolo -vs- Principal Namanga Mixed days Secondary School and 12 others [2014] eKLR
    [2014] eKLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution of Kenya, 2010 read with Section 12 of the Employment and Labour Relations Court Act, 2011

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "SOS v CWRL & 4 others [2021] KEELRC 1306 (KLR)", Case Analysis (2021). Petition No E009 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1306/eng@2021-07-08

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