RAO v O L & another (Cause E744 of 2023) [2025] KEELRC 2485 (KLR)
The bottom line
#A Kenyan court awarded an employee Kshs 1.32 million after finding sexual harassment by her CEO boss forced her to resign.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was constructively dismissed
Yes - the 1st respondent's sexual harassment and sexual assault created a hostile, intolerable work environment forcing her resignation
The court found the text messages and TikTok video sent by the 1st respondent constituted sexual harassment under section 6(1) of the Employment Act and ILO Convention No. 190. The February 3 'one-night stand' WhatsApp exchange and the post rape care form, hospital visits and counselling established on a balance of probabilities a non-consensual sexual encounter. Given the 1st respondent's seniority as CEO and supervisor, the environment became intolerable and the resignation was effectively involuntary.
Whether the recall from leave and salary reduction justified resignation
No - the recall was a managerial prerogative and the salary cut was effected with a consent mechanism
The court held the recall from paid leave was reasonable, and RW3 forwarded a sick form consistent with section 30(1) of the Employment Act. The 30% salary reduction followed a town hall meeting, the contents were shared with the claimant, and a notice of intent requiring her execution implied consent was needed; no arbitrary unilateral reduction was proved.
Whether the respondents' counterclaim had merit
No - the counterclaim collapsed entirely
Since the claimant was entitled to leave employment without notice due to the hostile environment created by the 1st respondent, the claim for salary in lieu of notice was unsustainable. The Kshs 6,000,000 business loss was unjustified, and the Kshs 500,000 legal and administrative investigation fees could not stand because her complaint was neither flimsy nor frivolous.
Standard of proof applicable to the rape allegation
Balance of probabilities, not beyond reasonable doubt
The court emphasized this was a civil claim, so the claimant need not prove the rape beyond reasonable doubt. Her immediate hospital visits, the post rape care form completed the same day, and months of counselling made a non-consensual encounter highly probable.
Legal principles established
#- Sexual harassment under section 6(1) of the Employment Act includes sending language and visual material of a sexual nature that is unwelcome and offensive to the employee, regardless of the employee's apparent reaction
- Constructive dismissal arises where the employer's conduct makes continued employment intolerable, entitling the employee to leave with or without notice
- An employer is enjoined to take steps to prevent sexual harassment and respond effectively whenever a complaint is raised at the workplace
Court orders
#- 1.The claim for constructive dismissal succeeds and the claimant is awarded Kshs 120,000.00 being one (1) month's salary in lieu of notice
- 2.The claimant is awarded Kshs 1,200,000.00 being compensatory damages equivalent to 10 months of her gross salary
- 3.Total award of Kshs 1,320,000.00
- 4.Interest on the total award at court rates from the date of judgment until payment in full
- 5.The counterclaim is disallowed
- 6.The respondents shall bear the costs of the claim and counterclaim
- Jurisdiction invoked
- First-instance employment and labour relations claim under the Employment Act and Article 41 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "RAO v O L & another (Cause E744 of 2023) [2025] KEELRC 2485 (KLR)", Case Analysis (2025). Memorandum of Claim dated September 12, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2485/eng@2025-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.