What are my options if a client refuses to pay without sexual favours?

Dear Vivian,

I am a content creator who focuses on promoting women's health products. I recently partnered with a new brand to advertise their body lotion. After conducting seven promotional videos, the marketing manager has refused to pay me unless I give in to sexual favours. He also claims that since the contract was verbal, I can’t prove its existence. What can I do?

Anonymous.

Dear Reader,

The issue of non-payment despite a firm agreement can be addressed through several legal avenues, even if the agreement was not formally written.

First, Kenya’s Law of Contract defines contract as, either written or oral and is considered legally binding if it meets certain criteria. These include an offer, acceptance, consideration and the intention to create legal relations. According to the Act, an oral contract is enforceable as long as it is proven to have been made. This means your verbal agreement with the brand over the phone can be legally binding if you can demonstrate its existence and the terms agreed upon.

Therefore, a breach occurs when one party fails to fulfil their obligations under the contract. The Act stipulates that the injured party, you, in this case, has the right to seek remedies for such breaches. There are key remedies available such as damages, specific performance and rescission. Damages involves monetary compensation for the loss suffered due to the breach.

Demand letter

On the other hand, specific performance is a court order requiring the breaching party to fulfil their contractual obligations while rescission involves the termination of the contract, releasing both parties from their obligations.

Before taking legal action, it is advisable to send a demand letter to the brand. This formal request for payment should detail the agreement, the services rendered, and the amount due. It serves as a final warning before legal proceedings and often prompts a settlement.

Although your agreement was verbal, you can gather evidence to support your claim. This evidence can include call records, emails or messages that corroborate the terms of your agreement, and the promotion videos you created and shared as per the agreement. Several courts in Kenya have emphasised the need for parties to honour their agreements, whether written or oral. Notably, any evidence gathered can also be crucial to back up the sexual harassment claim.

Additionally, the demand for sexual favours in exchange for payment by the marketing manager is illegal and constitutes sexual harassment, which is a serious violation under Kenyan law. The Sexual Offences Act of Kenya criminalises any form of sexual harassment, and you have the right to report this behaviour to the police and record a statement. Please note that no payment should make you silent on this matter. Therefore, as you seek remedy for the breached contract, pursue legal action for the sexual harassment offence.

The legal framework in Kenya provides avenues to seek redress, and with proper evidence and documentation, you can enforce your contractual rights. If you need further assistance, consider consulting a lawyer specializing in contract law to guide you through the process.

Vivian.

The writer is an Advocate of the High Court of Kenya and award-winning Civil Society lawyer. [email protected]