On Sexual Harrasment: The case of Kimaile v Co-operative Bank Kenya Limited [2025]

In the case of Kimaile v Co-operative Bank Kenya Limited [2025] KEELRC 1072 (KLR), the central issue revolved around whether the Claimant's conduct could be classified as sexual harassment under the Respondent's policy. The Claimant was dismissed based on allegations of sexual harassment involving two colleagues in the workplace.

The Respondent's sexual harassment policy outlined that harassment occurs when conduct goes beyond typical workplace conversations and exchanges, especially when such behavior is not mutually acceptable to all parties involved. In this case, the Claimant contested the dismissal, arguing that his conduct did not meet the threshold for sexual harassment. Specifically, he argued that there was no indication at the time that his gesture was unwelcome, and that neither of the colleagues involved expressed any discomfort. He also argued that the alleged act did not create a hostile or offensive work environment and that the gesture was a normal and friendly interaction common in a social work setting.

The Court was tasked with determining whether the Claimant's actions fell within the definition of sexual harassment as outlined in the Respondent's policy, and whether the termination was justified under the circumstances. This case highlights the complexity of defining what constitutes sexual harassment in the workplace, especially when the behavior in question is argued to be innocuous or part of regular social interactions.

In summary, the case underlines the importance of clear communication and understanding of workplace policies regarding sexual harassment, as well as the need for employees and employers to be vigilant in ensuring that conduct in the workplace does not inadvertently cross boundaries that could lead to claims of harassment.

The court's observation in Kimaile v Co-operative Bank Kenya Limited [2025] KEELRC 1072 (KLR) underscores a key principle in sexual harassment cases: the determination of whether conduct is "unwelcome" lies with the victim, not with the court or tribunal. The court emphasized that it is the individual victim's perspective that matters when assessing whether behavior is acceptable or offensive. In other words, what constitutes unwanted conduct is not defined by what the court or the general public would find offensive, but rather by whether the victim has made it clear that the conduct is unwelcome.

In this particular case, the court found that the complainants had indicated that the Claimant's conduct was unwelcome. This determination provided the Respondent with a valid basis for terminating the Claimant's employment. The court's reasoning highlights the importance of respecting individual boundaries in the workplace, emphasizing that the victim's comfort and expressed disapproval should guide the assessment of what constitutes inappropriate behavior.

As a result, the Claimant's dismissal was deemed justified, reinforcing the principle that employers are within their rights to take action based on complaints of sexual harassment, particularly when those complaints align with the victim's perception of what constitutes unacceptable conduct. This case also serves as a reminder to both employees and employers to maintain awareness of workplace boundaries and to foster environments where individuals feel safe to express concerns about misconduct.

Reasons for termination: The Case of Onyango v Riley Falcon Security Services [2025] KEELRC 855 (KLR)

Brief Facts:

On reasons for termination, in the above-cited case, the Claimant’s termination stemmed from a complaint that he reported to work 22 minutes late and was arrogant in responding to the inquiry about the lateness. 

 Analysis & Court's Determination:

The court, in determining whether the Respondent had a valid reason to terminate the Claimant, considered that he had worked for the Respondent for over 20 years and had no recorded case of misconduct.

Additionally, in the court’s view, a 22-minute absence from the workplace is not a valid and fair reason to terminate an employee, nor would being arrogant unless the conduct is habitual or amounts to rudeness. 

To the court, while arrogance denotes hubris, a feeling of self-importance, haughtiness, egotism or being pompous or conceited, rudeness, on the other hand, is associated with being ill-mannered, discourteous, insolent, disrespectful, offensive, or contumelious. 

The Claimant was arrogant but not rude, and according to the court, a reasonable employer would not have terminated the Claimant in similar circumstances.

Full case available here

Confidentiality: The case of Njuki v CIC Insurance Group Ltd [2025] KEELRC 416 (KLR)

Brief Facts:

On confidentiality, in the above cited case, the Claimant was dismissed for transferring restricted company documents from his work email to his personal email without authorization, violating the Respondent’s policies on gross misconduct. 

 

 

Case Analysis:

The claimant did not dispute the transfer, explaining that he did so after being summoned by the Directorate of Criminal Investigations Insurance Fraud Investigation Unit regarding fraudulent KPLC public liability claims. Feeling threatened with prosecution, he gathered the documents for his self-defence. 

 

The Respondent argued that the documents contained critical and confidential information on fraudulent claims paid on behalf of KPLC. 

 

Court's Determination:

 

However, the court found that since the Claimant only transferred the information to his personal email and did not share it with unauthorized third parties, he did not breach the confidentiality clause in his contract. 

 

There was no evidence that the information was disseminated beyond his personal possession.

The full case is available Here

Right to Privacy: The Case of AMM v Spin Knit Limited [2013] KEELRC 573 (KLR)

 In the case of AMM v Spin Knit Limited [2013] KEELRC 573 (KLR), the claimant suffered an injury when he was attacked by thugs. Upon being discharged, he returned to work having been prescribed light duty but was still assigned heavy duty, resulting in him suffering further infection to his injuries. The employee attempted to seek compensation but the respondent refused to offer any assistance. Instead, the Respondent directed the claimant attend a mandatory HIV/AIDS test which he refused and was denied entry to the work place. He was thereafter terminated for non-attendance. The court found that the termination of the employee was improper as the respondent infringed on the claimant’s right to privacy.

 

Employers have a legitimate interest in ascertaining their employee’s health status to see if they are fit for their roles. However, this interest does not trump the employee’s right to privacy. The court in the case of AMM v Spin Knit Limited [2013] KEELRC 573 (KLR) held that where health status of the employee or the prospective employee has a bearing on the required qualifications or job specifications, it is sufficient for the employer to receive the doctor’s certificate of fitness without disclosing the full medical report that infringes the employee’s or prospective employee’s health status. An employer should highly restrict the disclosure of employees’ medical reports and hold them in high confidence that protects the employee’s privacy and therefore human dignity. An employer must not force an employee to undergo a medical examination or force the employee to present medical reports that expose the employee’s health status that the employee is entitled to hold in his or her privacy.

Right To Privacy: The case of Samuel K. Skinner v. Railway Labor Executives Association (489 U.S. 602)

In the US Supreme Court case Samuel K. Skinner v. Railway Labor Executives Association (489 U.S. 602), the Court held that both blood and urine tests were minimally intrusive. While the Court acknowledged that the act of passing urine was in itself intensely personal, obtaining a urine sample in a medical environment and without the use of direct observation amounted to no more than a minimal intrusion. The Court justified not only testing of urine but also testing of blood by focusing on the procedure of testing (i.e., "experience . . . teaches that the quantity of blood extracted is minimal,” and pointing out that since such tests are "common place and routine in everyday life," the tests posed "virtually no risk, trauma, or pain".. While such testing does amount to an imposition upon an employee (i.e., by requiring her to report to a physician and provide a urine sample) in a way that may not be commonplace for many employees, the Court ruled that since this takes place within an employment context (where limitations of movement are assumed), this interference is justifiable and does not unnecessarily infringe on privacy interests.

Compensation for unfair termination: The Case of H Young & Co. (E.A) Ltd v Kobong [2025] KEELRC 514 (KLR

Background of the case:

In the case, the Appellant argued that the trial court’s award of 10 months’ salary as compensation for unfair termination was excessively high, given that the Respondent had worked for only 2 years and 9 months. 

The Respondent, however, contended that since the Appellant did not challenge the trial court’s finding on termination and fairness, the award was reasonable and should stand. 

The appellate court emphasized that compensation must be reasonable and assessed with moderation under Section 49(4) of the Employment Act.

Analysis:
While acknowledging that 10 months’ compensation seemed high compared to similar cases, the court found no evidence that the Respondent contributed to the termination. 

It further noted that the maximum award of 12 months’ salary is not solely based on length of service but on the reason and circumstances of termination. 

Court's determination:

The court recognized that unfair dismissal can have severe consequences, whether for a long-serving employee or one who recently took a career risk by joining a new employer.

Read the full case at here

Right to Privacy: The case of VMK v CUEA [2013] eKLR

Background and Analysis of the case:

In the case, the respondent had given the claimant a contract of service on a casual basis as a telephone operator in 2000. In 2003, her supervisor recommended her for a higher position, which she applied for and under that application included a medical test that did not indicate the testing for HIV. After undergoing the test, she was informed she was HIV positive and thereafter her promotion bid failed, causing her to continue employment on a casual basis even while her co-workers were promoted. In 2006, she wrote to the Personnel Officer having been aggrieved by her employment status and meagre salary which was responded to seven months after, giving her a one-year contract without benefits enjoyed by her colleagues. She continued on these terms till 2010 when her contract was terminated. 

Court's DETERMINATION:

The court found that the actions of the respondent indicated that the real reason behind the non-renewal was her HIV status as indicated by their lack of intention to employ her on permanent terms and thus resulted in unfair termination.