Sexual Harassment Claims in Kenyan Workplaces: Employer Liability and ELRC Precedent

Sexual harassment claims Kenya employers face are decided under section 6 of the Employment Act 2007, which sets a statutory definition of harassment and a separate duty on larger employers to issue a policy statement. A recent Court of Appeal decision, Kinda v Aiducation International (K) & Another [2026] KECA 350, shows how the Employment and Labour Relations Court (ELRC) can get that definition wrong and how the Court of Appeal corrected it. This article sets out what the Act requires, what the Court of Appeal decided, and what employers should put in place before a complaint is made.

What the Employment Act Requires

Under section 6(1) of the Employment Act, an employee is sexually harassed if the employer, a representative of the employer or a co-worker does any of four things. Paragraph (a) covers a direct or indirect request for sexual intercourse, sexual contact or any other form of sexual activity that contains an implied or express promise of preferential treatment, a threat of detrimental treatment, or a threat about the employee’s present or future employment status. This is the classic quid pro quo scenario. Paragraphs (b), (c) and (d) cover the use of language of a sexual nature, whether written or spoken, the use of visual material of a sexual nature, and physical behaviour of a sexual nature, where the conduct is unwelcome or offensive to the employee and by its nature has a detrimental effect on the employee’s employment, job performance or job satisfaction.

Section 6(2) requires an employer who employs twenty or more employees to issue a policy statement on sexual harassment after consulting its employees or their representatives, if any. Section 6(3) says what the statement must contain: the definition of sexual harassment in section 6(1), a statement that every employee is entitled to employment free of sexual harassment, a statement that the employer will take steps to ensure that no employee is harassed, a statement that the employer will take disciplinary measures against anyone under its direction who harasses an employee, an explanation of how complaints may be brought to the employer’s attention, and a statement that the employer will not disclose the complainant’s name or the circumstances of the complaint except where necessary to investigate or discipline.

The Case That Sets the Standard: Kinda v Aiducation International

The clearest recent authority on employer liability is Kinda v Aiducation International (K) & Another [2026] KECA 350, a decision of the Court of Appeal at Mombasa on appeal from the ELRC. The appellant was employed as a Communications Officer and Alumni Affairs Coordinator by a non-governmental organisation based in Watamu, Kilifi County. The second respondent was its Chief Executive Officer. She complained of a sexually charged WhatsApp message received on 28 January 2017 and of further emails and messages, and her case was that her employment ended as a result.

The ELRC dismissed the harassment claim. The Court of Appeal found that the trial judge had applied section 6(1)(a), the quid pro quo provision, to ask whether any benefit accrued to the appellant, without proper regard to section 6(1)(b) to (d), which deal with a hostile work environment. It held that the messages were overtly sexual, were sent by a supervisor, and were offensive and unwelcome, and that it did not matter that the individuals were related or that the messages travelled by WhatsApp or email. The court allowed the appeal and ordered the first respondent to pay terminal dues of KES 531,000, and the first and second respondents, jointly and severally, to pay general damages of KES 1,000,000, with interest and costs.

What This Means for Employer Liability

Two points follow from the judgment. First, the court treated the employer’s statutory duties as central. It recorded that section 6(2) requires employers with twenty or more employees to have a policy statement, that section 6(3) prescribes its contents, and that an employer has a duty to have a workplace policy, to train employees on it and to implement it. It also cited earlier Court of Appeal authority for the proposition that a victim cannot be blamed for failing to use reporting channels where no sexual harassment policy exists and so no channels exist.

Second, the harasser in Kinda was the organisation’s chief executive, and the court still made the damages award joint and several against the employer and the individual. Damages should be treated as indicative rather than a tariff. The one million shilling figure arose on its own facts, and one appellate award does not set a scale.

Building a Policy That Protects the Business

A policy should do at least what section 6(3) requires and should be written so that employees can actually use it. In practice, that means defining both forms of harassment the Act recognises, the quid pro quo form in paragraph (a) and the hostile environment form in paragraphs (b) to (d), and naming a reporting channel. The Court of Appeal’s reliance on the absence of reporting channels suggests that the channel should not run through the person complained about, for example by giving employees a choice of recipient such as a human resources lead or a director. The policy should also describe how a complaint will be investigated and resolved, and it should promise the confidentiality that section 6(3) requires.

A policy that sits in a drawer will not help. Employers should circulate it, record that employees have received it, train managers on how to receive a complaint, and keep a dated record of every investigation step. Because the Court of Appeal in Kinda emphasised training and implementation, as well as having a policy, those records are the evidence that the duty was performed. Employers with fewer than twenty employees are not bound by section 6(2), but the section 6(1) definition applies to them, and a short written policy is still sound practice.