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ELRCPartially AllowedNot stated in the judgment text supplied

COO v GAIN (Constitutional Petition E004 of 2025) [2025] KEELRC 2046 (KLR)

Employment and Labour Relations Court
10 July 2025
6,337 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court held that a dismissal for sexual harassment built on anonymous complaints and hearsay was unfair, awarding the employee Kshs. 6.9 million.

What this practically means

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Executive summary

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The petitioner, formerly Head of Policy and Advocacy, was summarily dismissed on 17.01.2025 for alleged sexual harassment of six employees of the respondent and CARE, following an investigation by Fitzgerald HR which relied on anonymous complainants. He petitioned the Employment and Labour Relations Court seeking declarations that the disciplinary process violated Articles 27, 28, 35, 41 and 47 of the Constitution, certiorari, a conservatory order, notice pay, twelve months' compensation, damages and a certificate of service. The court held that, apart from the disclosure issue, the respondent substantially complied with section 41 of the Employment Act: there was a genuine investigation, a show cause letter, a hearing with a colleague of choice and an appeal, with no predetermination established. Legal representation by an advocate was held desirable but not mandatory absent statutory or contractual provision, so that declaration failed. However, the respondent's non-disclosure policy on complainant identities contradicted section 6(3)(b)(v) of the Employment Act, infringing Articles 27, 41 and 47. On the merits, the investigation report contained only unverified, hearsay accounts; the single witness-supported account was found incredible. The respondent failed to discharge its section 43 burden of proving a genuine, valid and fair reason. Judgment was entered for the petitioner on most heads: declarations granted, the investigation report, show cause letter and dismissal letter set aside, a conservatory order against third-party communications issued, Kshs. 6,920,216.00 (less PAYE) awarded being ten months' compensation under section 49(c) plus two months' notice pay, a certificate of service ordered, and costs to the petitioner.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the parties were in a contract of service
  2. 2.Whether and how the respondent terminated the petitioner's employment and on what reason
  3. 3.Whether the respondent adopted a fair procedure to dismiss the petitioner
  4. 4.Whether as at the summary dismissal the respondent had a genuine existing reason per section 43 of the Employment Act and whether the reason was fair
  5. 5.Whether the petitioner is entitled to the remedies as prayed for

Key legal issues

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01

Procedural fairness of the disciplinary process and summary dismissal

Holding

The respondent substantially complied with section 41 of the Employment Act (explanation, show cause, hearing with a colleague of choice, appeal) except on disclosure of witnesses and witness statements, where it ran into procedural unfairness by enforcing a non-disclosure policy contrary to section 6(3)(b)(v) of the Act, infringing Articles 27, 41 and 47

Reasoning

The court applied the section 41 tests as set out in Postal Corporation of Kenya v Andrew Tanui. Suspension and investigation were genuine, with no predetermination shown, and participation of the investigator's colleague on the panel was not prohibited. However, the statutory safeguard in section 6(3)(b)(v) required disclosure of complainant identities where necessary for disciplinary measures, so reliance on anonymity was unfair and unconstitutional to that extent.

p. 8
02

Whether legal representation at the disciplinary hearing was mandatory

Holding

Not mandatory; legal representation in disciplinary processes is desirable but not mandatory absent statutory or contractual intervention

Reasoning

The court distinguished its own earlier ex-parte decision where representation had been allowed and not objected to, holding there was no evolving legitimate expectation where the contract provided the employer would not allow an advocate. The employee was entitled to a colleague of his choice under section 41, and that was satisfied.

p. 9
03

Whether there was a genuine, fair and valid reason for the summary dismissal under section 43

Holding

No; the respondent failed to establish the alleged sexual harassment and failed to discharge the statutory burden of proving the reason

Reasoning

The only evidence was the investigation report, whose accounts were hearsay and unverified. The single account by DA in the presence of PO was incredible because the two accounts were inconsistent and the report did not explain why DA had not reported earlier. Nothing at the hearing, appeal or in court established the allegations beyond the report.

p. 10
04

Remedies

Holding

Declarations granted; impugned decisions set aside; conservatory order against third-party communication issued; 10 months' salary (Kshs. 5,766,930) as compensation under section 49(c) plus two months' notice pay, totaling Kshs. 6,920,216.00; certificate of service; costs

Reasoning

The court considered the period served, the clean record of service and the intertwining of the constitutional violations with the unfair dismissal, treating the violations as aggravating factors under section 49(c) rather than awarding a separate constitutional award. No mitigating factors were pleaded by the respondent.

p. 12

Legal principles established

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  • An employer's non-disclosure policy on sexual harassment complaints cannot override the statutory exception permitting disclosure of a complainant's identity where necessary for investigating the complaint or taking disciplinary measures
  • Legal representation in employer disciplinary processes is desirable but not mandatory unless a statutory or contractual provision establishes it
  • Where an employee is denied knowledge of his accusers and an opportunity to cross-examine them, unverified hearsay accounts in an investigation report cannot discharge the employer's statutory burden under section 43 of proving a genuine existing reason for dismissal

Court orders

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  1. 1.Declaration that the disciplinary process by the respondent was unlawful and unconstitutional and violated the petitioner's right to fair labour practices
  2. 2.Declaration that the refusal to provide information relating to the investigations conducted between 23.10.2024 and 27.11.2024 violated the petitioner's right to access to information
  3. 3.Declaration that by directing the petitioner to respond to anonymous persons, the respondent violated the petitioner's right to fair administrative action
  4. 4.Declaration that the refusal to allow the petitioner to bring his witnesses and to cross examine the complainants violated the petitioner's right to fair administrative action
  5. 5.Declaration that the petitioner's summary dismissal was unfair, unlawful and unconstitutional and of no legal effect to the extent that the impugned disciplinary process contravened Articles 27, 28, 35, 41 and 47 of the Constitution
  6. 6.Order setting aside the investigation report dated 27.11.2024, show-cause letter dated 17.12.2024, and the dismissal letter dated 17.01.2025
  7. 7.Conservatory order restraining the respondent, its agents, servants or any other person acting for or on their behalf from communicating to any third party about the allegations leading to the wrongful summary dismissal
  8. 8.Respondent to pay the petitioner Kshs. 6,920,216.00 (less PAYE) by 01.10.2025, failing interest to run at Court rates from the date of judgment till full payment
  9. 9.Respondent to deliver the petitioner's certificate of service by 15.08.2025
  10. 10.Respondent to pay the petitioner's costs of the suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and labour relations jurisdiction under Article 162(2) of the Constitution (implied); claims founded on Articles 27, 28, 35, 41 and 47 of the Constitution and the Employment Act, 2007

Relief refused

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Declaration that the refusal to allow the petitioner to be accompanied by an advocate to the disciplinary meeting was unfair, unfounded, unlawful and unconstitutional

No contractual or statutory requirement for legal representation at internal disciplinary hearings; legal representation is desirable but not mandatory

p. 8

Compensation of twelve months' salary for constitutional violations as a separate award

The constitutional violations were considered as an aggravating factor under section 49(c); a separate award was not issued; instead 10 months' salary awarded

p. 12

Order of certiorari in strict terms

The respondent being not in the public realm, a plain setting aside order issued instead of certiorari

p. 12

Interest at 12% p.a. from date of filing the amended petition

Judgment awarded interest at Court rates only from the date of judgment upon default of payment by 01.10.2025

p. 13

Costs

The respondent to pay the petitioner's costs of the suit.

Quotable passages

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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 respondent could not institute and rely on a non-disclosure policy in circumstances that were contrary to the statutory provision and where the petitioner had correctly requested for disclosure for purposes of the disciplinary proceedings that had been initiated against him by the respondent
p. 8Limits of confidentiality policies in sexual harassment disciplinary processes
legal representation in disciplinary processes by employers is only desirable but not mandatory unless a statutory or contractual intervention making legal representation is established
p. 9Legal representation at internal disciplinary hearings
the respondent has failed to discharge the statutory burden of proving the justification and existence of the alleged reason for the summary dismissal
p. 11Section 43 burden of proof on the employer
The declaration that the petitioner's summary dismissal was unfair, unlawful and unconstitutional and of no legal effect to the extent that the impugned disciplinary process contravened the provisions on Articles 27, 28, 35, 41 and 47 of the Constitution of Kenya, 2010
p. 13Final orders - declarations granted
The order hereby issued setting aside the investigation report dated 27.11.2024, show-cause letter dated 17.12.2024, and the dismissal letter dated 17.01.2025, in respect of the subject matter of the amended petition
p. 13Final orders - setting aside impugned decisions
The respondent to pay the petitioner a sum of Kshs. 6, 920,216.00 (less PAYE) by 01.10.2025 failing interest to run thereon at Court rates from the date of this judgment till full payment
p. 13Final orders - monetary award and interest
The respondent to deliver the petitioner's certificate of service by 15.08.2025
p. 13Final orders - certificate of service
The respondent to pay the petitioner's costs of the suit
p. 13Final orders - costs

Issues in the judgment

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minor

Gross monthly salary stated inconsistently within the judgment

minor

Date of employment stated inconsistently within the judgment

minor

The respondent's HR officer's email responding to requests is dated inconsistently

minor

Date of disciplinary meeting invitation stated inconsistently

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "COO v GAIN (Constitutional Petition E004 of 2025) [2025] KEELRC 2046 (KLR)", Case Analysis (2025). Not stated in the judgment text supplied. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2046/eng@2025-07-10

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