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This story made headlines in June this year. It’s an interesting one so I thought I would look into it. The case is Kepha Moreno Bosire v Titus Naikuni & Kenya Airways Limited [2019] eKLR.

The facts…

The Claimant was employed as KQ’s Corporate Communications Manager. It was his case that Mr Naikuni walked up to him while he was on a dance floor and forcefully stripped him off his t-shirt and blazer, leaving him bare-chested. According to the Claimant, Mr Naikuni was protesting the fact that the Claimant was wearing an Arsenal t-shirt that was written “Fly Emirates” which Naikuni considered highly inappropriate.

The incident in question took place at a dinner and dance that was organized by KQ on the evening of the Masaai Mara Marathon which had been organized by KQ.

The Claimant also alleged that upon returning to work, he was handed a resignation letter which he was intimidated into signing.

Mr Naikuni denied the Claimant’s allegations whereas KQ’s position was that the Claimant resigned voluntarily.

The finding and award

The Court accepted the Claimant’s version and found that Mr Naikuni had used his position to intimate and coerce the Claimant “to engage in such an undignified act in the presence of his colleagues and guests”.

The Court also found that “the claimant’s service was unfairly terminated and further that the 1st respondent treated the claimant in a very undignified manner contrary to his rights under article 28 of the Constitution”.

The Court proceeded to award the Claimant 12 months salary as damages for unfair termination pursuant to Section 49 of the Employment Act.

In respect of Mr Naikuni’s treatment of the Claimant, the Court awarded the Claimant Kes. 1M payable by Mr Naikuni as damages for breach of the Claimant’s Constitutional right to dignity as captured at Article 28 of the Constitution:-

“Every person has inherent dignity and the right to have that dignity respected and protected”.

Article 28 of the Constitution

I have noted that KQ was not held liable for Mr Naikuni’s actions. By virtue of the principle of vicarious liability, employers can be held liable for the actions of their employees or agents.

In a number of cases relating to breach of Constitutional rights, it has been held that both the employee and the employer are liable.

Precedent-setting

Damages for unfair termination are limited to a maximum of 12 months salary. There is however no limitation to the amount of damages that can be awarded for breach of a Constitutional right. The award depends on several factors including the breach and the severity.

The case has definitely set a precedent and should stand as a word of caution.

***THE END***

About Anne Babu

Anne is an Advocate of the High Court of Kenya and the Founding Partner of Anne Babu & Co. She has practised employment law for close to 12 years and her employment law practice has been recognized by the prestigious Chambers & Partners. Anne cares about employers and their labour issues.

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