A chief executive who sends sexually explicit WhatsApp messages and forwards suggestive TikTok videos to a junior employee commits sexual harassment, regardless of how casual or informal the workplace culture may be.
That is the unambiguous message Kenya’s Employment and Labour Relations Court sent to employers on 19 September 2025, in a ruling that extends the legal boundaries of workplace harassment well beyond the physical office and into the digital spaces where most professional communication now happens.
The judgment arrives at a moment when the line between professional and personal communication grows thinner by the day. Managers routinely reach employees through WhatsApp groups, social media platforms and messaging apps at all hours. This ruling establishes that the same legal standards governing conduct in a boardroom apply equally to a late-night WhatsApp message or a video shared through a personal phone. For employers, it signals an urgent need to review communication policies. For employees, it affirms that unsolicited sexual content from a superior, whatever the platform or the hour, constitutes a violation of their rights at work.
Justice Stella Rutto delivered the ruling in RAO v O L & another (Cause E744 of 2023), finding that the conduct of the first respondent, who served as CEO of Pawa IT Solutions Limited, breached section 6(1) of the Employment Act and ILO Convention No. 190 on Violence and Harassment in the World of Work.
What Happened
The claimant joined Pawa IT Solutions as a Finance and Admin Associate in September 2021, reporting directly to the CEO. The professional relationship deteriorated in September 2022 when he sent her a WhatsApp link to an article titled “What happens when you stop having sex.” The following January, he kissed her without consent during a car ride and, the next day, forwarded a TikTok video of an ohangla song laden with sexual innuendo. The WhatsApp message included an English translation of the lyrics, which the court found discredited his claim that he did not understand the song’s meaning.
On 14 January 2023, after a client outing at Orchid Club on Ngong Road, the claimant alleged the CEO raped her in the back seat of his vehicle as she retrieved her bag. She sought medical attention at Coptic Hospital later that day, where a post-rape care form was completed. She also undertook counselling at Usikimye, an organisation that supports survivors of gender-based violence.
After months of therapy, she filed a formal internal complaint on 28 March 2023. The company placed her on paid leave and appointed an independent investigator. She resigned on 5 May 2023, citing a hostile and intolerable work environment.
The Court’s Findings
Justice Rutto found the first WhatsApp message “sexually explicit and too inappropriate to send to a junior colleague.” The court rejected the CEO’s defence that he had sent the link to his wife and friends in error, noting he made no suggestion that any of those recipients were colleagues. His claim that he forwarded the TikTok video innocently, because the claimant shared the song’s title, similarly collapsed once the court noted that the English translation of the lyrics accompanied the very message he sent.
The court was equally unconvinced that a victim’s use of emoticons in reply could validate the sender’s conduct. “The bottom line is that the first respondent should not have shared the message with the claimant in the first place,” Justice Rutto wrote.
On the rape allegation, the court applied the civil standard of proof rather than the criminal one. The CEO’s own WhatsApp message of 3 February 2023, in which he referred to a “one night stand” and asked whether his performance was “that bad,” proved decisive. The claimant replied: “We agreed that nothing happened, though.” The court found that exchange left no room for doubt that a sexual encounter had occurred, and that the claimant’s immediate hospital visits made it highly probable the encounter was not consensual.
“The actions of the first respondent against the claimant depict the worst form of gender-based violence at the workplace,” Justice Rutto stated.
Constructive Dismissal
The court held that the CEO’s conduct, compounded by the power imbalance inherent in his position as the company’s founder, director and majority shareholder, rendered the workplace intolerable. Unlike the claimant, the CEO faced no realistic prospect of dismissal over the allegations. The working relationship, the court found, could never recover.
Although the company initiated a formal investigation, the court questioned its objectivity. The HR Director, who was also the CEO’s wife, expressed displeasure that a key witness had sent her statement directly to the independent investigator rather than to the CEO first. “Her concern should have been to ensure that the witness had sent her statement to the independent investigator,” Justice Rutto observed, noting the conduct cast doubt on the entire process.
The court did not treat the recall from paid leave or the proposed 30 percent salary cut as independent grounds for resignation. On the salary reduction, it found no evidence of arbitrary action since the proposed changes required the claimant’s consent and affected other employees as well.
Award and Counterclaim
The court awarded the claimant Kshs 120,000, equivalent to one month’s salary in lieu of notice, and Kshs 1,200,000 in compensatory damages representing ten months’ gross salary, bringing the total to Kshs 1,320,000, with interest at court rates from the date of judgment.
The respondents’ counterclaim, which sought Kshs 6,620,000 for loss of business, legal fees and notice pay, was dismissed entirely. The court held that because the claimant was entitled to leave without notice, no liability for notice pay arose. Claims for business disruption also fell away since the resignation itself flowed directly from the first respondent’s conduct.
