Victims of sexual harassment in the workplace can sue their employer instead of the offending worker, the Employment and Labour Relations Court in Nairobi has ruled.The court delivered the decision as it dismissed a preliminary objection raised by Ten Senses Africa Limited in a case filed by its former employee, Ms ML.“Even if the individual alleged to have committed the acts is not a party to the suit, that alone does not render the claim defective or incompetent,” the court held.The firm had argued that the case was fatally defective because Ms ML did not sue the individual employee she accused of sexually harassing her.In its objection, the company asked the court to strike out the claim, arguing that the sexual harassment allegations were directed at a specific individual and not the company itself.It claimed any orders issued would be unenforceable without the alleged culprit being a party to the case.“The claimant levels allegations of sexual harassment against a known specific individual but has not joined the said individual in this suit,” the company submitted. It argued that, as a corporate entity, it could not commit the alleged acts.The employer claimed the claimant had not demonstrated any failure in its anti-sexual harassment policies. It also argued that she never reported the alleged incidents internally or to the police, which denied the company an opportunity to investigate or discipline the accused person.Ten Senses insisted that the failure to enjoin the alleged perpetrator made it “impossible for this court to wholly and effectively adjudicate this matter” and urged the court to find the case incompetent and an abuse of the court process.For her part, the claimant opposed the objection, arguing that it did not raise a pure point of law, as required for a preliminary objection.Her advocate stated that the issue of sexual harassment was contested and could only be resolved through evidence at a full hearing. She relied on a legal precedent defining a preliminary objection as one based strictly on law, not disputed facts.She also cited provisions of the Civil Procedure Rules that bar courts from dismissing cases solely due to non-joinder of parties.“No suit shall be defeated by reason of mis-joinder or non-joinder of parties,” she argued, citing a previous judgment where the court held that non-joinder cannot be used to defeat a suit. In its ruling, the court agreed with the claimant and rejected the employer’s arguments.The court clarified that employees alleging sexual harassment can pursue claims directly against employers without being forced to sue individual suspected perpetrators.Read: Gender violence costs Kenya’s private sector Sh96bn, IFC saysThe court held that the objection raised factual issues that could not be determined at a preliminary stage.“The issues that arise in this case on the necessity for the joinder are all issues of fact and not pure and crisp points of law,” the judge said.The court noted that the employer’s arguments required it to interrogate whether the alleged acts occurred, whether the company could be held liable for the actions of its staff, and whether internal reporting mechanisms were triggered.These, the court said, could only be addressed after evidence was presented.Reaffirming that a preliminary objection must be founded on a settled point of law, the court ruled that the company’s objection did not meet that threshold.The judge further emphasised that Kenyan civil procedure expressly protects cases from being dismissed merely because some parties have not been joined. The court dismissed the preliminary objection and ordered the matter to proceed to a full hearing on its merits.In her suit, the claimant is seeking several declarations and monetary awards against the company. She is seeking general damages for alleged sexual harassment, unlawful intimidation, threats, and bullying, along with the costs of the suit and interest.She also claims general damages for constructive, wrongful, and unfair termination, as well as damages for violation of her constitutional rights, underpayment, and embarrassment at the time of dismissal.Further, she is asking the court to declare that her employment was terminated wrongfully, maliciously, and unfairly. She also seeks a declaration that the respondent violated her constitutional rights to equality, freedom from discrimination, dignity, privacy, and fair labor practices.Additionally, she is seeking Sh1.14 million as basic salary for the remaining six months of her employment tenure and Sh190,000 as one month’s salary instead of notice.→ jwangui@ke.nationmedia.com Provided by SyndiGate Media Inc. (Syndigate.info).
