Mauti v Oshwal College (Cause E753 of 2023) [2025] KEELRC 2854 (KLR)
The bottom line
#Kenya's Employment Court upheld a college lecturer's dismissal for sexually harassing students, ruling the employer followed a fair process and owed no compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent had capacity to be sued despite claiming to be managed by an unincorporated board
The preliminary objection failed; the Respondent contracted as the employer in its own name and RW1's evidence showed it was registered under the Companies Act and with the Ministry of Education.
The employment contract was executed between the Claimant and Oshwal College as employer. No contract with the Oshwal Education and Relief Board was produced. If the Respondent truly lacked legal personality, it could not have validly contracted. RW1's cross-examination testimony that the Respondent is registered under the Companies Act rendered the objection inconsistent and unclear. The objection was accordingly overruled.
Whether the Respondent had a valid and fair reason for termination
Yes - the Respondent proved on a balance of probabilities that the Claimant sexually harassed female students, constituting gross misconduct under Section 45(2)(a) and (b) of the Employment Act.
Student evaluation forms, written statements, prior warnings and a 2014 complaint mirrored the allegations. The court found the students' statements credible and rejected the claim of coaching. The Claimant's conduct - touching, hugging and addressing students as 'darling' and 'sweetheart' - met the definition of sexual harassment in Black's Law Dictionary and the HR Manual. Gross misconduct is a ground for summary dismissal under the Manual.
Whether the Claimant was accorded procedural fairness
Yes - the Respondent complied with the minimum requirements of Section 41 of the Employment Act.
The Claimant was informed of the allegations through the show cause letter, furnished with the complainants' statements and investigation report upon request, allowed to respond in writing, given a hearing before an independent disciplinary committee, and offered the right to be accompanied. The initial generality of the allegations was remedied by disclosure. There was no evidence that investigators sat on the disciplinary committee or that the Claimant suffered prejudice.
Legal principles established
#- An employer need not await a criminal process before taking internal disciplinary action against an employee for sexual harassment; the applicable standard is a balance of probabilities.
- An employer who entered into a contract of employment in its own name cannot disown its legal capacity to be sued on the basis that it is unincorporated.
- An employer is not required to give prior notice of an investigation; what Section 41 requires is that the employee be informed of the allegations and given an opportunity to respond in the presence of a fellow employee or union representative.
- An employer may be vicariously liable for an employee's sexual misconduct where there is a close connection between the unauthorised conduct and the duties of employment.
Court orders
#- 1.The Respondent's Preliminary Objection dated 2nd July 2024 is overruled
- 2.The claims for notice pay, compensatory damages, and breach of contract are dismissed
- 3.The claim for unpaid leave for the entire period is dismissed
- 4.The claim for salary for the month of May 2023 is dismissed
- 5.The claim for pension is dismissed, with liberty to withdraw benefits from the provident fund
- 6.The Claimant is entitled to collect his terminal dues
- 7.The Claimant is entitled to collect his certificate of service
- 8.The Claimant's suit is dismissed in its entirety with no orders as to costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (Sections 41, 45, 28) as first-instance employment claim; no specific constitutional or statutory jurisdictional provision cited in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mauti v Oshwal College (Cause E753 of 2023) [2025] KEELRC 2854 (KLR)", Case Analysis (2025). Not stated in the judgment (Memorandum of Claim dated 15th September 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2854/eng@2025-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.