I keep coming back to Wilson Macharia v Safaricom PLC, Petition No. 434 of 2019, [2021] KEHC 462 (KLR) (Makau J, 8 July 2021), not because it is well reasoned, but because it is the only Kenyan authority I know of that tests undue hardship against a technology accommodation rather than a ramp or a larger office. That makes it the closest thing we have to a precedent for the AI-recruitment liability question that is about to land on many advocates’ desks. I want to walk through where the judgment’s reasoning is potentially problematic, because the flaw matters for how you read it, and then get to the part that should change advocates’ advice to clients: section 15(2) of the Persons with Disabilities Act, 2003, the provision Macharia pivoted on, was repealed on 27 May 2025 by the Persons with Disabilities Act, 2025 (Act No. 4 of 2025). I do not think the new Act does what most employer-alert circulars have been telling it does, and I will show you why from the text.
The facts and findings
Here are the facts of the case. Macharia, visually impaired, applied for a Customer Experience Executive role at Safaricom in 2016, cleared the oral interview and medical assessment, but could not sit the SHL computerised aptitude test because Safaricom had not procured screen-reader-compatible software. He was told at interview stage that the company was acquiring it, as documented in Safaricom’s own submission, repeated as the court’s own finding (paras 34, 46). He went through the rest of the process anyway. He was informed by phone and email in September 2017 that he had succeeded, invited to sign, and then told the offer had been made erroneously. No written reasons were given.
He pleaded two things. First, he argued that the failure to accommodate was disability discrimination under Article 27 of the Constitution, the PWD Act, and the CRPD. Second, he contended that however the software issue was characterised, the handling of his rejection breached his dignity under Articles 28 and 54(1) and his right to fair administrative action under Article 47 (paras 22–26, 50–52). Safaricom’s answer to the first limb was section 15(2)(c) of the PWD Act, the deeming clause excusing an employer where the accommodation “cannot reasonably be expected” of it (para 38).
Makau J rubberstamped the section 15(2)(c) defence in a finding that there was no discrimination, because the software could not reasonably be expected of Safaricom “in the short run due to budgetary constraints” (para 49). But on the second limb, the court found Safaricom knew from day one that Macharia needed the software, engaged him through the process regardless, confirmed his success, then withdrew it without explanation. On this second limb, the court awarded Kshs 6,000,000 for the dignity and Article 47 breaches (paras 59–60). Petition allowed in part.
For advocates advising on exposure, that outcome of no discrimination, but a substantial award anyway is the headline everyone remembers. It is the reasoning informing the entire judgement and which I disagree with below.
The reasoning’s shortcoming
Two things, and I think they are related rather than separate errors.
First, the cost finding has no cost evidence in it. At paragraph 46 the court records, correctly, that Safaricom tendered nothing on what accommodating Macharia would have cost. It then on its own accord introduces the size-of-operation reasoning on Safaricom’s behalf, noting that a larger employer absorbs what a smaller one cannot, and hardship has to be substantial, probable, tied to the accommodation, not speculative [46]. Fine as a statement of principle. But three paragraphs later, at paragraph 49, the same court finds Safaricom “cannot therefore be reasonably be expected to provide software due to budgetary constraints.” You cannot move from “no cost evidence was led” to “budgetary constraints justify the refusal” without the court discharging the respondent’s evidentiary duty for it. If you are citing Macharia for the proposition that a bare hardship assertion can succeed, that is what exactly you are citing: a finding made on a record the judgment itself calls inadequate.
Second, and this is the one I would highlight more for anyone litigating a similar claim now: the “in-process procurement” fact goes against Safaricom, not for it, and the judgment uses it both ways without noticing. Safaricom’s own case was that it was already sourcing the software at the time of interview (paras 34, 46). The court handles that as a sign of good faith. I would consider it as an admission that the accommodation was obtainable; the only open question was timing, and Safaricom controlled that variable by scheduling the interview before procurement was complete. The judgment arrives at the same conclusion in its assessment of Article 47: it calls the software excuse “an afterthought that was introduced late to the detriment of the petitioner” (para 45), four paragraphs before accepting budgetary constraint as a solid defence to the discrimination claim. You cannot have it both ways on the same set of facts as this judgement does.
The upshot for anyone assessing Macharia’s precedential weight: it stands for analysing “no discrimination” and “dignity/Article 47 violation” as severable findings on identical facts, with the discrimination limb carrying a materially lighter evidentiary bar for the employer than the CRPD’s own definition would allow. Article 2 of the CRPD defines denial of reasonable accommodation as discrimination, full stop; no severability contemplated. Kenyan law, via this judgment, currently disagrees. I do not think that survives analytical rigour, and after reading the 2025 Act, I do not think Parliament thinks so either.
The 2025 Act and Its Implications
I have seen commentaries characterising the 2025 Act as introducing a heightened “undue hardship” test requiring “objective and verifiable evidence.” Having now gone through the Act itself, that is not what it says. The word “hardship” does not appear anywhere in it. I consider what Parliament did as more aggressive than a heightened evidentiary bar, and it is the point I would want every advocate advising employers to have internalised before the next Macharia-type claim lands on their desk.
Section 15(2)(c), which is the standalone employer escape clause Safaricom relied on, has no successor. It is gone, not replaced with a tougher version. What section 21 of the new Act gives you instead is an unconditional duty: no employer “shall discriminate” against a person with disability in recruitment (s.21(1)), and every employer “shall be required to carry out appropriate modifications in their work premises to accommodate the employment of persons with disabilities” (s.21(2)(e)). Essentially, there is no qualifying clause attached. The concept that used to exist in a defence provision has been relocated into the definition of the right itself: “reasonable accommodation” means adjustment “not imposing a disproportionate or undue burden” (section 2). That is an important structural shift every employment advocate should be alive to when advising: there is no longer a discrete affirmative defence for an employer to plead and fail to prove, the way Safaricom failed to prove one in 2021. The employer’s argument now has to be that the accommodation itself fell outside the statutory definition of “reasonable”, which is a much narrower target, and one that does not obviously survive on a record that looks like Safaricom’s, with an admitted, active procurement already underway.
Section 21(7)(c)(iii) puts it beyond argument: “not making reasonable accommodation” is itself listed as an act of discrimination. That addresses the doctrinal gap Macharia exploited: you can no longer plead your way to “not discriminatory, but also not accommodated” as two separate findings. And section 62 transforms the whole scenario into a criminal exposure: discrimination contrary to Article 27, including denial of reasonable accommodation under s.62(2)(k), carries a fine of up to KES 2,000,000 or imprisonment of up to two years or both. Civil redress exists alongside that under section 34, being a direct application to the High Court without prejudice to any other cause of action.
For any advocate current undertaking employer-side risk assessment: the practical consequence is that “we couldn’t afford it” is no longer a pleading you can successfully mount as a standalone defence. It has to be argued as your position that the accommodation was never “reasonable accommodation” in the first place, on the statutory definition, and I would advise documented cost and feasibility analysis behind that from day one of the recruitment process, not assembled after the fact for litigation, which is what Safaricom did not have and what would defeat the size-of-operation inference the court supplied for it in 2021.
Where I’d focus advice right now
Three things, in order of how often I think they will come up.
Procurement, not policy. Safaricom’s exposure originated in a vendor gap involving a third-party testing tool that did not support screen readers and not a hostile HR decision. Under section 62’s criminal exposure, that kind of gap is now a serious liability which exists inside your client’s procurement contracts, not just their HR handbook. Any advocate drafting or reviewing recruitment-technology agreements relating to ATS platforms, psychometric or video-interview tools, or algorithmic shortlisting urgently needs to obtain an accessibility warranty from the vendor, an indemnity allocating discrimination exposure to whichever party’s tool caused the failure, and disclosure of the vendor’s own accessibility testing before deployment. I have not seen this deployed as standard practice in Kenyan HR-tech procurement yet. It should be, starting with your next negotiation.
Article 47 survives independently of the PWD Act analysis entirely, and I think it is the underappreciated risk for algorithmic recruitment tools specifically. An automated screening system that filters out disabled candidates does it at scale and silently; there is no single administrative decision point the way Macharia had one (a written, then rescinded, offer) to anchor a fair-administrative-action claim on. Any advocate advising a client running AI-assisted shortlisting should note that the absence of an obvious decision point is not a defence; if anything it is an aggravating fact once discovered, because it suggests the failure was systemic rather than a one-off misjudgement.
Do not let a client rely on Macharia‘s severability argument going forward. I have already seen this reasoning given in informal advice to the effect that “no discrimination finding was made against Safaricom, so accommodation failures are not necessarily discriminatory.” That reading was shaky in Macharia in 2021 given the CRPD position, and section 21(7)(c)(iii) closes it outright under current law. For advocates, if a claim on facts like these comes across your desk today, I would expect the discrimination finding and the dignity/Article 47 finding to be tied together, not separately, which changes both settlement valuation and litigation strategy on either side of the table.
Conclusion
Macharia will keep getting cited, and I understand why: it is still the only Kenyan authority on a technology-based accommodation failure, and the KES 6,000,000 award is a genuinely useful reference point on quantum for a dignity and fair-administrative-action claim. But cite it for that, not for the discrimination finding. The discrimination finding was wrong on its own facts even under the more permissive 2003 regime, and the 2025 Act has since removed the very defence the court accepted without proof. To the best of my knowledge, nobody has yet brought a case testing Macharia’s severability reasoning against section 21(7)(c)(iii). I would rather see one advocate make that argument than watch a client accidentally stumble into it or have it made for them by a court.
Brook Mwango researches at the intersection of law, human rights, and governance, with a focus on using law as a tool for policy change on behalf of persons with disability, children, women, and youth.