Waiter in viral caning video to get Sh3m for inhumane treatment, sexual molestation

The petitioner's attacker has since been deported to China. [File, Standard]

The High Court has awarded Sh3.072 million to a waiter who was, in February 2020, recorded being caned at a Kileleshwa restaurant by his supervisor, a Chinese national.

Justice Nduma Nderi ruled on Thursday, July 8, that it had been established the petitioner, identified in court as SOS, had been subjected to inhumane treatment.

SOS told the court that on February 2, 2020 he was assaulted by D.H, his supervisor at Chez Wou Restaurant. A video recording of SOS being whipped by D.H, who was laughing during the incident, went viral on social media, sparking uproar.

SOS worked as a waiter at the facility between October 2019 and February 2020, stating that throughout his employment at the hotel, he was subjected to inhumane treatment, including physical assault and sexual molestation by his supervisor, D.H.

“The second respondent (D.H), in the course of SOS’s employment pursued the petitioner several times seeking to have anal sex with him, but the petitioner ignored him, upon which the second respondent threatened the petitioner with dire consequences,” said SOS in his court filing.

The complainant said his refusal to accept D.H’s sexual advances marked the beginning of his troubles at Chez Wou Restaurant, which he listed as the first respondent in his suit.

“On or about October 2019, while on duty at around 8pm, the second respondent attacked the petitioner and hit him on his head with a metallic cooking spoon. The petitioner suffered acute pain. Later, the petitioner experienced scary dreams at night about the sexual overture and attack by the second respondent,” said SOS in the court papers.

The petitioner further said the physical assault continued on diverse dates throughout his employment. On other occasions, he said, he was kicked on the genitals, whipped with a wire rod, and hit in the backbone.

“The petitioner was in addition cajoled to engage in sex with the second respondent and was threatened verbally, abused and given corporal punishment upon resisting the advances,” stated Justice Nduma Nderi.

D.H and other administrators of Chez Wou Restaurant were, in February 2020, arrested in connection with the caning assault recorded on tape.

The second respondent and his senior co-workers were, thereafter, released and deported without facing trial in Kenyan courts.

SOS took issue with the accused persons’ deportation, and, as result, sued Interior Cabinet Secretary Fred Matiang’i, the Inspector-General of Police Hillary Mutyambai and Attorney-General Kihara Kariuki.

Justice Nduma Nderi, however, found the trio had no case to answer in regard to SOS’s case, as it was the High Court that ruled SOS’s alleged assaulters be deported.

Chez Wou Restaurant (the first respondent) and D.H (the second respondent) did not file any replying affidavit. As a result, the court ruled that the allegations SOS made against the two were treated as statements of fact.

In his ruling, Justice Nduma Nderi awarded Sh3.072 million to SOS for the inhumane treatment he was subjected to and the unfair termination of his employment contract.

“The petitioner suffered extreme cruelty, humiliation, psychological trauma, pain and suffering; loss of self-esteem as a result of the continuous sexual harassment, corporal punishment, verbal abuse and confinement while being humiliated in front of co-workers… The court awards the claimant general damages of Sh3,000,000 for these human rights and fundamental freedom violations,” ruled the judge.

The court further awarded Sh72,000 (six months’ salary) in compensation for unlawful and unfair summary dismissal.

Chez Wou Restaurant will pay SOS the damages, as the court observed that it was vicariously liable for all the treatment meted out on the petitioner by D.H.