Mbugua v Resort (Cause E096 of 2022) [2024] KEELRC 1950 (KLR)
The bottom line
#A Kenyan court upheld a hotel employee's dismissal because he refused to attend his own disciplinary hearing, even though the employer lacked a sexual harassment policy.
What this practically means
#Executive summary
#Key legal issues
#Sub judice / jurisdiction objection based on pending defamation suits
Objection dismissed; this court retained jurisdiction
The respondent's objection that the truth of the sexual harassment allegations was sub judice in Kwale defamation suits filed by the claimant was addressed in a ruling of 4 May 2023 in which the jurisdiction challenge was dismissed. The court proceeded to determine the claim on its merits.
Whether termination was substantively justified on allegations of sexual harassment
The evidence of sexual harassment was hazy given the absence of a known workplace policy; the complaints could not found a finding of valid reason against the claimant
The court analysed section 6 of the Employment Act, ILO standards and case law on employer duties. Witnesses did not know the sexual harassment policy, and the claimant chaired the Gender Exploitation Committee, making complaints against him impracticable. Without a policy, known reporting procedures or definition communicated to employees, the case of harassment against the claimant was 'hazy'.
Whether the termination was procedurally fair under section 41
The claimant was accorded procedural fairness but squandered the opportunity by refusing to attend the rescheduled disciplinary hearing, justifying termination
The claimant was invited to a hearing on 3 August 2020, indicated unavailability, and was granted a rescheduled hearing on 10 August 2020 but again did not attend, insisting his advocates would only be available in September. Section 41 entitles an employee to a fellow employee or shop floor representative, not to hold the employer at ransom. His failure amounted to refusal of a lawful command under section 44(3) and (4)(e).
Legal principles established
#- An employer must have in place and publicise a policy against sexual harassment under section 6(2) of the Employment Act; absence of a known policy weakens the employer's case that an employee committed sexual harassment
- Where an employee is accorded the opportunity to attend a disciplinary hearing and fails to attend, the employer is justified in terminating employment; an employee cannot insist on attending only when his advocates are available
- Directions to attend a disciplinary hearing are lawful and proper commands; refusal to obey constitutes misconduct under section 44(3) and 44(4)(e) of the Employment Act
Court orders
#- 1.The claim herein is dismissed
- 2.Each party bears its own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act; jurisdiction objection by the respondent dismissed in a ruling delivered 4 May 2023
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kinda v Aiducation International (K) & another (Civil Appeal E047 of 2022) [2026] KECA 350 (KLR)[2026] KECA 350 (KLR)27 Feb 2026
- Aron v Bokhol Transporters Limited (Appeal E185 of 2024) [2025] KEELRC 805 (KLR)[2025] KEELRC 805 (KLR)13 Mar 2025applied
- Security Alert Services Limited v Kebuko (Appeal E114 of 2024) [2025] KEELRC 333 (KLR)[2025] KEELRC 333 (KLR)6 Feb 2025applied
Cite this brief
#Cite this brief
Caselaw, "Mbugua v Resort (Cause E096 of 2022) [2024] KEELRC 1950 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1950/eng@2024-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.