T M M v China Civil Engineering Construction Corporation (k) Limited
The bottom line
#Kenya's Court of Appeal dismissed a worker's Kshs 4 million sexual harassment claim because she never reported the harassment when it happened.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant proved her claim of exposure to sexual harassment
The court held that the claim of sexual harassment was an afterthought and not proved to the required standard; the appellant did not report the alleged advances to the HR Manager, did not escalate the matter, and did not mention prior harassment in her police statement.
The court reappraised the evidence as a first appeal. It noted that although the appellant claimed to have been propositioned with money and a salary increase, she never reported this to the Human Resource Manager, the department charged with handling such complaints, nor escalated it after Mr. Hemming did nothing. Her police statement of 3rd June 2016 mentioned only the assault on her breasts, not prior harassment. The court therefore agreed with the trial judge that the claim was not well founded and rightly dismissed.
The scope of the appeal
The appeal was confined solely to the sexual harassment claim; the remainder of the trial court's award was not open to revisit.
The appellant only challenged that part of the trial judgment declining compensation for sexual harassment. The awards for underpayment, one month's salary in lieu of notice and four months' compensation for unfair termination were not under challenge. The court therefore had no basis to disturb the rest of the award.
Legal principles established
#- On a first appeal, the Court of Appeal must reappraise the evidence adduced before the trial court critically and arrive at its own decision, in line with Rule 29(1) of the Court of Appeal Rules.
- A claim of sexual harassment must be proved to the required standard; allegations raised for the first time at trial without prior complaint, and absent from contemporaneous records such as police statements, may be treated as afterthoughts.
Court orders
#- 1.Dismissal of the appeal
- 2.No orders as to costs
- On appeal from
- Employment & Labour Relations Court of Kenya at Mombasa
- ELC Cause No. 860 of 2016
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (Rule 29(1) of the Rules of this Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "T M M v China Civil Engineering Construction Corporation (k) Limited", Case Analysis (2018). Civil Appeal No. 52 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/556/eng@2018-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.