By Andrew Kariuki
The Court of Appeal sitting in Mombasa has delivered a landmark judgment clarifying the law on workplace sexual harassment, significantly expanding the interpretation of employee protection under the Employment Act, 2007.
A three-judge bench comprising Justices Murgor, Nyamweya and Ngenye overturned key findings of the Employment and Labour Relations Court (ELRC), setting out authoritative guidance on what constitutes sexual harassment in the workplace.
The case arose from a dispute in which an a lady, M. K, who worked as a Communications Officer and Alumni Affairs Coordinator, accused her employer’s Chief Executive Officer, Jeremiah Kambi, of subjecting her to repeated sexual advances through WhatsApp messages.
She argued that the messages were sexual in nature, unwelcome and offensive and that they created a hostile work environment that ultimately forced her out of employment.
The respondents denied the allegations, maintaining that the communications had been taken out of context and were influenced by a pre-existing family relationship between the parties.
They further contended that the employment relationship ended by mutual agreement and not due to any misconduct.
At the trial court, Justice Ongaya dismissed the claim for sexual harassment, finding that the messages did not meet the legal threshold under Section 6 of the Employment Act.
The court held that there was no evidence of promises of employment benefits or threats linked to the alleged conduct, and characterized the exchanges as private communications within a complex personal relationship.
Dissatisfied with that decision, M.K moved to the Court of Appeal, challenging the interpretation of the law and the evaluation of the evidence.
In its judgment, the appellate court undertook an extensive review of both domestic and international legal frameworks on sexual harassment, including constitutional provisions on equality and dignity, international human rights instruments, and the Employment Act.
The court emphasized that sexual harassment is a form of discrimination and a violation of human dignity and clarified that Section 6 of the Employment Act recognizes two distinct forms of sexual harassment.
The first, commonly referred to as “quid pro quo” harassment, involves situations where sexual conduct is tied to employment benefits or threats.
The second, which the court found applicable in this case, is “hostile work environment” harassment, which includes unwelcome sexual language, conduct or materials that are offensive and have a negative impact on an employee’s working conditions.
The judges found that the trial court had erred by focusing solely on whether there was evidence of quid pro quo harassment and failing to properly consider whether the conduct amounted to a hostile work environment.
Upon re-evaluating the evidence, the Court of Appeal noted that the respondent did not deny sending the WhatsApp messages, and that the messages were overtly sexual in nature.
It further found that the appellant had clearly indicated that the advances were unwelcome.
The court stressed that the determination of whether conduct is unwelcome is subjective, stating that it is the victim, not the perpetrator or the court, who determines what is offensive.
Importantly, the judges rejected the argument that private electronic communication falls outside the scope of workplace harassment, holding that messages sent through platforms such as WhatsApp, SMS or email can constitute sexual harassment where they occur within an employment relationship.
The court further ruled that the existence of a familial relationship between the parties did not negate the power dynamics of the workplace, noting that the respondent was the appellant’s direct supervisor.
The appellate court concluded that the sexual communication, viewed within the employment context, was unwelcome, offensive and detrimental and that it created a hostile work environment that contributed to the appellant’s exit from employment.
In setting aside the findings of the trial court, the Court of Appeal awarded the appellant Ksh 531,000 in terminal dues and Ksh 1,000,000 in general damages for sexual harassment.
The judgment is expected to have far-reaching implications in Kenyan employment law, particularly in defining the scope of workplace sexual harassment and the use of digital communication in professional relationships.
It firmly establishes that unwelcome sexual communication, even when conducted through informal digital platforms, can amount to workplace harassment where it occurs within an employment relationship and undermines an employee’s dignity, well-being or working environment.
