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ELRCPartially AllowedNot stated in judgment

MNM v G4S Kenya Limited (Cause E232 of 2021) [2024] KEELRC 2248 (KLR)

Employment and Labour Relations Court
20 September 2024
8,265 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~33 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that firing an employee over a consensual workplace relationship is unfair — and banned employers from outlawing workplace romance.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 3rd March 2000 and last serving as Regional Operations Manager on a gross monthly salary of Kshs 270,400, was terminated on 22nd December 2020 on grounds of engaging in a sexual relationship with a junior employee, AM, and influencing her transfer to a better-paying receptionist role with a client. He exhausted the Respondent's appeal mechanism unsuccessfully. The Respondent maintained the termination was for a valid reason and followed fair procedure under its sexual harassment policy. The Court framed three issues: procedural fairness, validity of reasons, and reliefs. On procedure, it found the show-cause letter, disciplinary hearing with representation, recorded proceedings, and appeal satisfied Sections 41 and 45 of the Employment Act, holding that an unsigned, undated complaint of sexual harassment remains valid if investigated. On validity, the Court found no evidence that the consensual relationship morphed into sexual harassment: the complainant denied harassment in recorded evidence, the DNA test excluded the Claimant as father of her child, and the transfer was effected by the Customer Service Manager with the client appointing her on merit. The Court declared Clause 14 of the Respondent's Sexual Harassment Policy prohibiting supervisor-supervisee relationships unconstitutional as offending Articles 31, 28 and 25(a). Termination was therefore unfair for lack of valid reason. The Court awarded 12 months' salary as compensation (Kshs 3,244,800), ordered a Certificate of Service, costs to the Claimant, and interest at court rates, rejecting claims already paid and gratuity/severance.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether termination of the Claimant's contract was based on fair procedure
  2. 2.Whether termination was based on valid reason
  3. 3.Whether the Claimant merits the reliefs sought

Key legal issues

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01

Procedural fairness of termination

Holding

Procedure met the minimum standards under Sections 41 and 45 of the Employment Act

Reasoning

The Claimant received a show-cause letter, responded, was invited to a disciplinary hearing with his procedural rights comprehensively explained, attended with a representative, was heard and recorded, and exercised a right of appeal heard by an independent Appeal Officer within a reasonable time notwithstanding Covid-19 constraints. The complaint being unsigned and undated did not vitiate the process, and the dropped borrowing charge reflected the Respondent accepting his explanation.

p. 9
02

Validity of the reasons for termination

Holding

No valid reason was established; the relationship was consensual and did not amount to sexual harassment

Reasoning

Both parties admitted a consensual relationship. M expressly denied being sexually harassed, the DNA test exonerated the Claimant, and the allegation that he influenced her transfer was contradicted by the Customer Service Manager's and Respondent witnesses' evidence that transfer was done by the CSM and that M was appointed by the client on merit. There was no evidence of quid pro quo or hostile work environment harassment, so the stated reasons under Sections 43 and 45 failed.

p. 15
03

Constitutionality of the anti-fraternization clause

Holding

Clause 14 of the Respondent's Sexual Harassment Policy prohibiting supervisor-supervisee relationships is unconstitutional

Reasoning

The clause invades the privacy rights protected under Article 31, conflicts with the inherent dignity guaranteed by Article 28, and offends the freedom from cruel, inhuman or degrading treatment under Article 25(a). Comparative authorities (Lawrence v Texas; Barbee v Household Automotive Finance Corporation) support employees' right to pursue intimate relationships. The policy's purpose was to address sexual harassment, not outlaw romance or marriages.

p. 14
04

Remedies

Holding

Claimant awarded 12 months' gross salary as compensation; statutory and contractual payments already made were not doubled; severance refused

Reasoning

Having served 20 years and 9 months, aged 52 with 8 years to mandatory retirement, and having not contributed to his termination, the maximum compensation of 12 months under Section 49 was warranted. Notice, December salary and accrued leave were already paid; gratuity and severance were unsupported because there was no contractual provision and no redundancy.

p. 16

Legal principles established

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  • A complaint of sexual harassment is valid without date, signature or even the complainant's name, provided the employer investigates it
  • Not every workplace sexual relationship constitutes sexual harassment
  • A policy prohibiting consensual romantic relationships between employees is unconstitutional as a violation of privacy, dignity and freedom from cruel, inhuman or degrading treatment

Court orders

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  1. 1.Declaration that termination of the Claimant's contract was unfair for lack of valid reason
  2. 2.Compensation for unfair termination equivalent to 12 months' salary at Kshs 3,244,800
  3. 3.Certificate of Service to issue
  4. 4.Costs to the Claimant
  5. 5.Interest allowed at court rate from the date of Judgment until payment in full

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court, established under Article 162(2) of the Constitution (not expressly quoted in judgment)

Relief refused

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1-month salary in lieu of notice

Already paid by the Respondent

p. 15

Salary for days worked and accrued annual leave

Already paid

p. 15

Gratuity/severance pay at Kshs 1,081,000

No contractual provision for gratuity; no redundancy; Claimant subscribed to NSSF

p. 15

Costs

Costs to the Claimant

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is declared that termination was unfair, for lack of valid reason.
p. 16Disposition - declaration
The Claimant is granted compensation for unfair termination, equivalent of 12 months' salary, at Kshs 3,244,800.
p. 16Disposition - compensation
Costs to the Claimant.
p. 16Disposition - costs
Not every sexual relationship at the workplace, results in sexual harassment.
p. 10Sexual relationship vs sexual harassment
A complaint of sexual harassment is not rendered invalid by lack of a date, signature or even the name of the complainant.
p. 9Validity of sexual harassment complaints
It is an assault on the privacy rights, inherent dignity of Employees, and the protection against cruel, inhuman and degrading treatment.
p. 14Unconstitutionality of anti-fraternization policy

Issues in the judgment

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minor

Judgment alternates between describing the Respondent as having recommended 'further investigations' and as having found as fact that the Claimant sired M's child, contrary to the undisputed negative DNA result

minor

The Sexual Harassment Policy is cited inconsistently as clause 13, clause 14 and clause 15.1.5 in different parts of the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "MNM v G4S Kenya Limited (Cause E232 of 2021) [2024] KEELRC 2248 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2248/eng@2024-09-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.