A chief executive officer has been ordered to pay his former employee Ksh1 million in damages after Court of Appeal found him guilty of subjecting her to unwanted sexual advances through WhatsApp messages, a ruling that dramatically reshapes the legal landscape of workplace harassment in the country.
In a unanimous judgment delivered on Friday, a three-judge bench comprising Justices Agnes Murgor, Pauline Nyamweya, and Grace Ngenye ruled against Jeremiah Kambi, the Chief Executive Officer of Aiducation International (K), after finding that he had created a hostile work environment for his then-subordinate, identified in court papers only as EMK.
The court did not stop at the Ksh1 million award. It also directed that the organisation settle the employee’s outstanding terminal dues of Ksh531,000, bringing the total liability against the employer to over Ksh1.5 million.
The road to Friday’s ruling was long and contested. EMK had initially filed her case before the Mombasa Employment and Labour Relations Court (ELRC), where Justice Byram Ongaya dismissed it in November 2021, finding that the WhatsApp messages did not satisfy the legal threshold for sexual harassment under Section 6 of the Employment Act.
Justice Ongaya had characterised the communications as private exchanges within a complex family context, noting that they did not promise preferential treatment or threaten detrimental employment consequences.
He further concluded that the sexual harassment complaint was an afterthought.
EMK refused to accept that outcome. She appealed to the Court of Appeal in Mombasa, arguing that the trial judge had misapplied the law and failed to properly weigh the power dynamics at play between herself and her CEO.
At the heart of the case were WhatsApp messages that Kambi sent to EMK during the course of her employment.
The appellate judges noted a critical fact: Kambi did not deny sending the messages.
EMK had testified that she was subjected to repeated sexual advances and sexually explicit messages from her boss, who served as both her direct supervisor and the organisation’s chief executive.
She told the court that the messages were unwelcome, that she made her rejection clear, and that the conduct left her humiliated, embarrassed, and psychologically distressed, ultimately making her work environment untenable.
Kambi and his company argued that the communications had been taken out of context, that portions of the conversation thread had been omitted, and that the relationship between the two parties was intertwined with family connections.
They maintained that no harassment had taken place and that EMK’s departure from employment was by mutual agreement.
The appellate court was unpersuaded. Upon re-examining the record, the judges found the messages to be overtly sexual in nature and EMK’s responses to be an unmistakable indication that the advances were unwanted.
The Court of Appeal used the case as an opportunity to deliver a comprehensive ruling on the scope of sexual harassment law in Kenya, drawing on international treaties, regional human rights instruments, and the Constitution of Kenya.
The judges identified what they described as a fundamental error by the trial court: its exclusive focus on one type of sexual harassment while ignoring another. Section 6 of the Employment Act, the court explained, distinguishes between two forms of the offence.
The first, sometimes called “quid pro quo” harassment, involves sexual demands tied to employment benefits or threats.
The second, and the one at the centre of this case, concerns the creation of a hostile work environment through unwelcome sexual language, visual material, or physical conduct that has a detrimental effect on job performance or satisfaction.
“We find that the trial judge misdirected himself by focusing exclusively on the ‘quid pro quo’ test under Section 6(1)(a) and failing to properly analyse the claim under the ‘hostile work environment’ provisions in Sections 6(1)(b), (c) and (d),” the three judges ruled.
One of the most consequential aspects of the judgment is its treatment of electronic communication.
The trial court had characterised the WhatsApp messages as private communications falling outside the scope of workplace sexual harassment.
The Court of Appeal flatly rejected this reasoning.
The judges held that the medium of communication, whether email, WhatsApp, SMS, or otherwise, does not alter the legal character of the conduct.
What mattered, the court emphasised, was not the platform used but the nature of the relationship between the parties: that both were employees of the same organisation, that Kambi was EMK’s direct supervisor, and that the communications occurred within the employment context.
The court went further, expressly affirming that the transmission of unwelcome sexual communication through electronic platforms between employees in an employment context constitutes sexual harassment where the statutory elements are met.
The court also addressed a question of profound significance: who determines whether conduct is unwelcome? Its answer was unequivocal.
The test is subjective, it is for the victim to determine what is offensive and unacceptable, not the perpetrator, and not the court applying its own standards.
The absence of any intent to harass, the judges held, is not a defence.
The court also dismissed the defence that the existence of a family relationship between Kambi and EMK neutralised the harassment.
Such ties, the judges ruled, are legally immaterial where the sexual conduct occurs within an employment relationship.
The trial court, they found, had improperly downgraded the sexual discourse to a family dispute and failed to give proper weight to the power imbalance inherent in a supervisor-subordinate relationship.
With its legal analysis complete, the court turned to remedy. It ordered Aiducation International (K) to pay EMK her terminal dues of Ksh531,000, and awarded an additional Ksh1 million in general damages for sexual harassment.
“It is our finding that Aiducation International (K) pays the lady her terminal dues of Ksh531,000, and we award Ksh1,000,000 in general damages for sexual harassment,” the bench declared.
The decision is expected to have far-reaching implications for employers and employees across Kenya.
