Maina v Article 19 Eastern Africa (Cause 105 of 2019) [2025] KEELRC 2650 (KLR)
The bottom line
#Kenya's Employment Court upheld a dismissal for sexual harassment but ordered the employer to pay over KShs 710,000 in untaken leave because it couldn't prove leave had been taken.
What this practically means
#Executive summary
#Key legal issues
#Whether the reasons for termination (sexual harassment and bullying) were valid and fair
The reasons were valid: the claimant's text messages to complainant 1 were unwelcome sexual advances amounting to sexual harassment, and the failure to issue staff contracts supported a finding of bullying
Applying section 43 and 45(2) of the Employment Act and the reasonable-employer test in British Leyland v Swift, the court found complainant 1's and EK's statements established unwelcome sexual advances. The claimant admitted the text communication but failed to prove alleged manipulation of the messages. His witnesses alleging an intimate relationship were never called or cross-examined. Any reasonable employer would dismiss to protect employees and shield itself from liability.
Whether the procedure followed met section 41 of the Employment Act
Procedural fairness was substantially complied with; the process up to the appeal could not be faulted
The claimant was informed of the reasons, participated in investigations, received the investigation report and complainants' statements, and the hearing was adjourned at his request to study them. The court took judicial notice that sexual harassment complainants need protection from victimisation, so their non-appearance was not fatal. He was heard, his representations recorded, and his appeal considered and answered.
Whether the sexual harassment and whistle-blowing policies were unlawfully applied retrospectively
No: the Human Resources Manual already prohibited sexual harassment at the material time, and sexual harassment is a statutory offence under section 6 of the Employment Act and the Sexual Offences Act
RW1 confirmed the manual's clause 3.6 on sexual and other forms of harassment predated the allegations. The court treated the retrospective-policy objection as a technicality, given the statutory framework and manual in force, and rejected the claimant's 'right to offend' argument under Article 19 ICCPR/Article 33 of the Constitution as no defence to sexual harassment.
Whether the claimant was entitled to compensation for untaken leave
Partly allowed: 18 months' leave pay of Kshs. 710,572.50 awarded, as the termination letter acknowledged accrued leave was payable and the employer, as custodian of records, failed to prove leave taken
Annual leave is a statutory right under section 28 of the Employment Act. The show-cause letter simultaneously directing the claimant on leave was an unfair labour practice. Relying on section 74 custodianship of records and Del Monte Kenya Limited v Kyengo, the employer bore the burden of proving leave taken or paid; the letter of termination admitted accrued leave days were payable. The award was capped at the statutory 18-month maximum.
Whether the claims for underpayment and salary to contract lapse were merited
Both disallowed
Under sections 108 and 109 of the Evidence Act the burden lay on the claimant, who never demonstrated which months he was underpaid or any basis for the claim. The claim for full salary to the intended lapse of the contract is not a remedy available under the Employment Act and was not established.
Legal principles established
#- A termination must satisfy both substantive fairness (valid reason) and procedural fairness under section 41 of the Employment Act
- The validity of an employer's reasons is tested against the standard of a reasonable employer, within a band of reasonableness
- Freedom of expression does not extend to conduct constituting sexual harassment or creating a hostile work environment
- There is no legal requirement that a victim of sexual harassment testify in person at a disciplinary hearing; what matters is the sufficiency and credibility of the evidence
- Absence of a sexual harassment policy at the material time does not exonerate an employee where sexual harassment is an established offence under statute and the HR manual
Court orders
#- 1.Judgment entered for the claimant against the respondent in the award of 18 months' salary of leave in lieu, being Kshs. 710,572.50
- 2.Interest on the award at court rate from the date of filing of suit
- 3.Costs of the suit awarded to the claimant
- 4.Stay of 30 days granted
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Employment and Labour Relations Court (claim for unfair termination under the Employment Act, No. 11 of 2007); specific enabling provision not quoted in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maina v Article 19 Eastern Africa (Cause 105 of 2019) [2025] KEELRC 2650 (KLR)", Case Analysis (2025). Not stated in the judgment (Statement of Claim dated 17th January 2020, received 20th February 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2650/eng@2025-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.