VA v KCS & another (Petition E223 of 2022) [2025] KEELRC 1315 (KLR)
The bottom line
#Kenya's Employment Court ruled an NGO unfairly fired its Coordinator by skipping its own grievance and sexual harassment procedures, awarding her 12 months' salary.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether parties were in a contract of employment
- 2.Whether and by what letter the contract of employment was terminated
- 3.Whether the termination of the contract of service was unfair or unlawful
- 4.What remedies are available to the petitioner
Key legal issues
#Validity and fairness of the procedure leading to termination
The termination violated sections 41 and 45 of the Employment Act and Articles 41, 47 and 50(1) of the Constitution because the prescribed grievance procedure and the ad hoc investigation under the Sexual Harassment Policy were skipped
The general complaints should have gone to the Performance Management Committee under the grievance policy, and the sexual harassment complaint required a conclusive investigation report by an ad hoc committee before any disciplinary action. The 2nd respondent referred the matter to the Board prematurely, in total breach of the employee grievance policy, despite the petitioner's clean record of service and absence of prior warnings.
Whether there were valid and fair reasons for termination
No valid, genuine and existing reasons existed as at termination per sections 43 and 45 of the Employment Act
Because the grievance and investigative procedures were completely violated, the respondents could not show valid reasons for termination. The alleged sexual harassment was found never to have occurred or, if it did, to have been condoned through consistent failure to report, and the other complaints had never been raised by the supervisor during the petitioner's clean service record.
Whether the alleged sexual harassment was established
The alleged sexual harassment was unfounded; the complainant condoned the nicknames by never reporting them
RW3 testified that the nicknames had been used since his appointment over 1.5 years earlier, other staff used them too, and he never protested or reported the alleged incidents. The court found the alleged sexual harassment never occurred or, if it did, was welcome in view of the consistent failure to report.
Remedies for unfair termination
Maximum 12 months' compensation of Kshs. 1,584,000.00 awarded under section 49, with rights violations treated as aggravating factors
The court considered section 49 factors: the rights violations, malice in disregarding procedures, withheld dues, the petitioner's clean record, and reputational injury as an advocate. The respondents offered no mitigation, justifying maximum compensation; a separate award for rights violations was declined as the violation was mixed into the unfair termination.
Legal principles established
#- An employer must exhaust its prescribed grievance procedure before subjecting an employee to a disciplinary process
- A sexual harassment complaint must be investigated by the ad hoc committee with a conclusive written report before termination; referral to the Board without that report is a breach of the mandatory precondition
- Tolerance or condonation of alleged sexual conduct, evidenced by failure to report over a long period, renders allegations of sexual harassment unfounded
Court orders
#- 1.Declaration that the respondents breached the rights and fundamental freedoms of the petitioner as found in the judgment
- 2.Declaration that the respondents' actions in terminating the petitioner's contract as the Coordinator, AGCP had no reasonable cause and were unfair, unlawful and in breach of her constitutional rights to fair labour practices and fair administrative action
- 3.The 1st respondent to pay the claimant Kshs. 1,584,000.00 less PAYE by 01.07.2025, failing which interest to run at court rates from the date of judgment till full payment
- 4.The 1st respondent to deliver the certificate of service in 30 days and to cause payment of dues under the provident fund per terms and conditions of service and relevant law
- 5.The 1st respondent to pay the petitioner's costs of the petition
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 41, 47 and 50(1) of the Constitution and sections 41, 43, 45 and 49 of the Employment Act, 2007
Relief refused
#Separate award of general damages for violation of constitutional rights
The violation of rights was considered as an aggravating factor in the s.49 compensation
Award of withheld salaries
Not specifically pleaded and proved
Pay for outstanding leave
Not pleaded or prayed for
Relief against the 2nd respondent personally
Judgment entered against the 1st respondent only
Costs
The 1st respondent to pay petitioner's costs of the petition
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Thus the Court returns that the termination was unfair both in substance and procedure
The Court finds that the 2nd respondent referred the matter to the Board prematurely and in total breach of the employee grievance policy
the 2nd respondent appears to have referred the case to the 1st respondent's Board without satisfaction of the mandatory precondition of established culpability in a conclusive report by the ad hoc committee
the petitioner having otherwise upheld a clean record of service and having suffered serious anxiety and reputational injury as an Advocate of the High Court is awarded maximum compensation of Kshs.132, 000.00 per month x 12 making Kshs. 1, 584,000.00
judgment is hereby entered for the petitioner against the 1st respondent for orders
The 1st respondent to pay the claimant a sum of Kshs. 1, 584,000.00 less PAYE by 01.07.2025 failing interest to run thereon at Court rates from the date of this judgment till full payment
Issues in the judgment
#Judgment records the termination letter as dated 11.12.2017 in the petitioner's account while all other references are to a letter dated 11.11.2022, an apparent internal date inconsistency
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "VA v KCS & another (Petition E223 of 2022) [2025] KEELRC 1315 (KLR)", Case Analysis (2025). Petition dated 19.12.2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1315/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.