Kirui v Ekaterra Tea Kenya PLC (Employment and Labour Relations Cause E013 of 2023) [2024] KEELRC 1747 (KLR)
The bottom line
#A Kenyan court confirmed a manager's sacking for sexual harassment was justified but still awarded him money because the disciplinary hearing was unfair.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether due process was followed before dismissing the claimant
- 2.Whether the respondent discharged its duty of proving that the dismissal was lawful and justified
- 3.Whether the sexual harassment allegations against the claimant were substantiated
- 4.Whether the claimant is entitled to the reliefs sought
Key legal issues
#Whether the disciplinary process accorded the claimant procedural fairness under section 41 of the Employment Act and the Fair Administrative Actions Act
The process was procedurally unfair; the claimant was not given an opportunity to cross-examine the nine witnesses nor to present his own defence, breaching section 41 and his right to a fair hearing
The court traced the requirements of section 41 of the Employment Act and section 4(3) of the Fair Administrative Actions Act, including the right to cross-examine persons giving adverse evidence and to be given materials to be relied upon. Although the claimant received a show cause letter and was invited to a hearing with rights to representation, the minutes showed he was only cross-examined by the panel and given no opportunity to question the witnesses. The claim of inadequate notice was an afterthought since he never complained of short notice and had responded to the show cause letter. The failure to allow cross-examination and presentation of his case vitiated the process.
Whether the respondent had valid reasons to terminate the claimant's employment on grounds of sexual harassment
Yes - valid reasons existed; the claimant admitted making persistent sexual advances to female colleagues including juniors and an attachee, which constitutes sexual harassment under section 6 of the Employment Act
The court defined sexual harassment under section 6 of the Employment Act, the respondent's own policy, and ILO Convention 190, noting international law forms part of Kenyan law by virtue of Article 2 of the Constitution. The claimant's admissions in the disciplinary minutes and in cross-examination - that he made sexual advances to Faith Barasa, Everline Ngatha, Faith Maluki, Daisy and an attachee, persisting after rejection and contacting a complainant during investigations - established the misconduct. Under section 43, the employer proved the reasons genuinely believed to exist. That the complainants did not testify in court did not displace the admissions.
What remedies flow from a procedurally unfair but substantively justified termination
Reinstatement was refused; compensation of 3 months' gross salary for the flawed process and 2 months' notice pay were awarded, subject to statutory deductions
The court held that because valid reasons existed, reinstatement or re-engagement was not an option. Exercising discretion under section 45(2), it awarded only 3 months' salary as compensation solely because the disciplinary process was flawed, rather than the 12 months sought. Applying the contractual notice provision of 2 months, it awarded notice pay of 2 months. Interest at court rates from the date of judgment and costs against the respondent were ordered.
Legal principles established
#- An employer who fails to allow an employee to cross-examine adverse witnesses and to present his own evidence at a disciplinary hearing breaches section 41 of the Employment Act and renders the process procedurally unfair
- Making sexual advances to female colleagues, even without demand for sexual favours, falls within the statutory and international definitions of sexual harassment and constitutes a valid reason for dismissal
- A termination may be procedurally unfair even where valid reasons exist, attracting compensation under section 45(2) of the Employment Act
Court orders
#- 1.Award of compensation equivalent to 3 months' gross salary (3 x 378,656 = Kshs 1,135,969.38) for the flawed disciplinary process
- 2.Award of notice pay of 2 months' salary (378,656.46 x 2 = Kshs 757,312.92)
- 3.Total award of Kshs 1,893,282.30 less statutory deductions
- 4.Respondent to pay costs of the suit plus interest at court rates with effect from the date of judgment
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act 2007 over a claim of unfair termination
Relief refused
#Declaration that the summary dismissal was wrongful, unlawful, procedurally unfair and unconstitutional, null and void ab initio
The court found valid reasons existed for the dismissal; only the procedure was unfair
Reinstatement or re-engagement with back pay and no loss of seniority
Valid reasons for termination made reinstatement not an option
Back pay from date of termination to judgment
Not awarded; only 3 months' compensation and 2 months' notice pay granted
Full remuneration up to retirement at 60 years
Not awarded; only 3 months' compensation granted
12 months' gross salary as compensation for unlawful and unfair termination
Court exercised discretion and awarded only 3 months' salary because only the disciplinary process was flawed
Three months' salary in lieu of notice
Employment contract provided for termination on 2 months' notice; 2 months awarded instead
Order directing respondent to remit all statutory deductions for the duration of the unfair dismissal
Not granted; only 'less statutory deductions' from the award was ordered
Exemplary damages
Not awarded
Costs
Respondents will pay costs of this suit plus interest at court rates with effect from the date of this judgment.
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.
The disciplinary hearing was fiawed in many aspects. The failure to grant the Claimant an opportunity to present his evidence after charges were read to him and failure to have him cross examine the witnesses renders the entire process unfair and a breach of the Claimant’s right to a fair hearing.
Making sexual advances to his female colleagues whether once or in many instances falls squarely under this definition of sexual harassment and violence and harassment at work.
I have alluded to the unfair disciplinary process meted against the Claimant herein but find there existed valid reasons for the termination of the Claimant. It therefore follows that the termination of the Claimant herein was unfair in terms of Section 45 (2) of the Employment Act 2007.
Having found that there were valid reasons for his termination, reinstatement or re-engagement cannot be an option for him.
I will exercise my discretion and award him 3 months salary as compensation and only for the reasons that the disciplinary process was fiawed
Respondents will pay costs of this suit plus interest at court rates with efiect from the date of this judgment.
Issues in the judgment
#The judgment attributes the claimant's loss of employment to 9th August 2023, which is the date the memorandum of claim was filed, while the evidence and pleadings elsewhere state he was summarily dismissed on 8th May 2023
The show cause letter and disciplinary hearing allege the claimant made advances to 'Faith Baraza, Everline Ngatha and another employee whose identity has been protected', but the claimant's cross-examination and submissions also name 'Faith Maluki' as a colleague he sought to date, and the court's summary of the minutes refers to Faith Barasa, Everlyne, Faith Maluki and Daisy without reconciling the identity of the protected witness
The court finds there was no active complaint before the media expose, yet the respondent's witness testified the first complaint came from Joan's husband before the expose; the two accounts are not expressly reconciled
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kimani v Rosslyn Academy (Cause E251 of 2022) [2025] KEELRC 1892 (KLR)[2025] KEELRC 1892 (KLR)27 Jun 2025
Cite this brief
#Cite this brief
Caselaw, "Kirui v Ekaterra Tea Kenya PLC (Employment and Labour Relations Cause E013 of 2023) [2024] KEELRC 1747 (KLR)", Case Analysis (2024). Memorandum of Claim dated 9th August 2023 (court file number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1747/eng@2024-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.