Njihia v Mathare Youth Sports Association & another (Cause 1048 of 2018) [2024] KEELRC 1435 (KLR)
The bottom line
#A Kenyan court ruled that even a zero-tolerance sexual harassment policy cannot justify firing an employee without solid evidence and a fair hearing.
What this practically means
#Executive summary
#Key legal issues
#Validity of the reason for dismissal
The Respondents failed to establish valid grounds of sexual misconduct; no complainants were identified, no witness statements produced, and the investigation evidence was unreliable
The dismissal letter referred to 2 unnamed girls; no statements from complainants, guardians or witnesses were produced. The lead investigator Pauline Njeri had filed a statement exculpating the Claimant, and the Respondents' witness's account of girls 'fighting over' the Claimant sounded like consenting partners rather than victims. The court found the allegations unsubstantiated and the investigation report unfocused.
Fairness of procedure
Procedure departed starkly from Sections 41 and 45 of the Employment Act; no show-cause letter, no disciplinary hearing, and no sharing of witness statements with the Claimant
The Respondents conceded a fair disciplinary hearing was not held, pleading witness interference as a catch-22. The court held the employer cannot excuse procedural failures on the employee's conduct and could have recorded statements confidentially, issued a show-cause letter, and presented the Claimant with specific accusations. The demarcation between investigators, ad hoc committee and Board was confused.
Remedies for unfair termination and constitutional violation
Declaration granted; notice pay of 1 month, 2 months' compensation for unfair termination, 15 days' salary as constitutional damages, and 24 days' annual leave pay awarded
The court balanced the Claimant's 10 years of continuous service and good record against the 1st Respondent's non-profit, donor-funded character, awarding a modest compensatory figure. Constitutional damages of 15 days' salary were granted for the Article 41 violation, and accrued leave was held not forfeitable under Section 28 of the Employment Act.
Defamation claim
Rejected; publication by the Respondents was not proved
The Claimant himself did not know who shared the reports on Facebook and KPL chat platforms, and there was no evidence linking either Respondent to the publications. The prayer for Kshs. 3 million in aggravated damages therefore failed for want of proof.
Legal principles established
#- Zero-tolerance policy on sexual harassment does not justify summary dismissal founded on zero evidence; there must be evidence to establish the misconduct
- An employer cannot justify the lack of a fair disciplinary hearing on the conduct of the employee; the employer must do all that is reasonably possible to initiate a fair hearing
- Accrued annual leave cannot be forfeited for want of application; it can only be taken by the employee or bought off by the employer
Court orders
#- 1.It is declared that termination of the Claimant's contract by the Respondents was unfair, unlawful and in violation of his Article 41 rights and the Employment Act, 2007
- 2.The Respondents shall pay to the Claimant 1-month salary in lieu of notice at Kshs. 33,750
- 3.The Respondents shall pay equivalent of 2 months' gross salary in compensation for unfair termination at Kshs. 66,800
- 4.The Respondents shall pay damages for violation of constitutional rights equivalent of 15 days' salary at Kshs. 16,875
- 5.The Respondents shall pay 24 days of annual leave at Kshs. 26,270 (total Kshs. 143,695)
- 6.No order on the costs and interest
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and Article 41 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njihia v Mathare Youth Sports Association & another (Cause 1048 of 2018) [2024] KEELRC 1435 (KLR)", Case Analysis (2024). Employment and Labour Relations Cause (Statement of Claim dated 22nd June 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1435/eng@2024-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.