Kimani v Rosslyn Academy (Cause E251 of 2022) [2025] KEELRC 1892 (KLR)
The bottom line
#A Kenyan court cut a sacked worker's payout because his firing was justified, but still made the employer pay for running an unfair disciplinary hearing.
What this practically means
#Executive summary
#Key legal issues
#Admissibility of unsigned minutes of the disciplinary hearing
The minutes were expunged as inadmissible because the maker was unidentified, the minutes unsigned, and RW1 lacked personal knowledge of their creation.
Section 35 of the Evidence Act requires the maker of a document to have personal knowledge and to be called as a witness, subject to limited exceptions. The author of the minutes was not identified, no attendee signed to confirm accuracy, and RW1 only joined the Respondent in September 2024, so she could not authenticate them. The burden lay on the party producing the document to establish exceptions, which it did not discharge.
Justifiable reason for termination
The Respondent proved on a balance of probabilities a justifiable reason: the Claimant's unwelcome jokes and physical touches amounted to sexual harassment under Section 6(1) of the Employment Act.
Under Sections 43(1) and 45(2)(a) and (b) of the Employment Act, the employer had to prove valid reasons related to conduct. The inquiry report recorded four female staff who said they were touched uncomfortably; the Claimant admitted to patting shoulders and knees and apologised for making colleagues uncomfortable. Unwelcome conduct of a sexual nature satisfies the elements of sexual harassment; the Claimant's ignorance of the policy was no defence.
Procedural fairness of the disciplinary process
The process was procedurally flawed: identities of complainants were withheld, complainants did not attend so could not be cross-examined, and the complainant's statement and inquiry report were not supplied to the Claimant.
Section 41(1) of the Employment Act requires notification of allegations and an opportunity to make representations. Confidentiality of complainants cannot extend to the accused employee, who must know his accusers and face them. None of the colleagues who complained attended the hearing, denying the Claimant the right to cross-examine. Withholding the complainant's statement and inquiry report, the primary documents relied upon, breached the employee's entitlement to documents assisting his defence, rendering the process unfair despite the valid reason.
Entitlement to reliefs
Compensatory damages of three months' gross salary (Kshs 496,500) awarded for procedural unfairness; the 12-month award and slander damages refused.
Because the reason for termination was justified but the process was flawed, compensation was calibrated to the procedural defect only. The award took account of the length of the 21-year employment, circumstances of termination and the Claimant's own contribution. The slander claim failed because the statements in the Respondent lawyer's letter were true and privileged, and hearsay statements attributed to former colleagues via the neighbour Grace Wahu were unsupported by evidence and were denied by the Respondent.
Legal principles established
#- An employer must disclose to an accused employee the identities and statements of complainants and witnesses whose evidence is relied on in a disciplinary hearing; the employee is entitled to documents in the employer's possession that would assist in preparing a defence.
- Where the maker of a document is not identified and no attendee signed the document, the document fails the threshold under Section 35 of the Evidence Act and is inadmissible.
- Unwelcome physical touches or jokes constitute sexual harassment even if the employee believed them innocent; ignorance of what constitutes sexual harassment is not a defence.
- A disciplinary process must embody fair-hearing elements, including the right to cross-examine and access to evidence relied upon; it is not a mere formality.
Court orders
#- 1.A declaration that the termination of the Claimant from employment was procedurally flawed
- 2.The Claimant is awarded compensatory damages in the sum of Kshs 496,500.00 being equivalent to three (3) months of his gross salary
- 3.Interest on the amount in (b) at court rates from the date of Judgment until payment in full
- 4.The Claimant shall also have the costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes under the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimani v Rosslyn Academy (Cause E251 of 2022) [2025] KEELRC 1892 (KLR)", Case Analysis (2025). Memorandum of Claim dated 28th March 2022 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1892/eng@2025-06-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.