COURT1

Disciplinary processes are administered by the employer. The Employment Act, 2007 sets out the procedure that the employer should follow prior to terminating an employee on grounds of poor performance or misconduct. In Ann Wambui Kamuiru v Kenya Airways Limited [2016] eKLR, the Employment & Labour Relations Court held as follows: –

There is a convergence in agreement that an employer who commences disciplinary proceedings must ensure due process, fair hearing and due regard to natural justice.

Can an employee seeks the court’s intervention during the currency of disciplinary proceedings?

Courts proceed with caution and reluctance when asked to intervene in disciplinary proceedings. The reason for this is twofold; firstly, internal disciplinary matters are an employer’s prerogative and secondly, an employee who is aggrieved by the disciplinary proceedings has the right to sue for damages or reinstatement. For this reason, the court will only intervene in compelling and exceptional cases.

From decided cases, the following can be gleaned as the instances when the court will intervene: –

  1. Where serious injustice may result or where justice might not by other means be attained. This is where, for example, the process does not conform to procedural and substantive fairness. In Fredrick Saundu Amolo v Principal Namanga Mixed Day Secondary School & 2 others [2014] eKLR, the Court intervened where the disciplinary procedure employed was not proper. A disciplinary sanction was issued against the employee before giving him a chance to be heard. In Geoffrey Mworia v Water Resources Management Authority & 2 others [2015] eKLR the court affirmed that courts will intervene in an administrative disciplinary procedure if it is established that the procedure relied on by the employer offends fairness or due process by not upholding the rules of natural justice, or, if the procedure is in clear breach of the agreed or legislated or employer’s prescribed applicable policy or standards, or, if the disciplinary procedure were to continue it would result into manifest injustice in view of the circumstances of the case;

  2. Where the process is marred with irregularities. The court will, however, not to stop the process, but only put things right;

  3. Where the consequence of non-interference would be to subject the applicant to extreme hardship or irreparable harm, or in cases where the action by the respondent has no legal basis. In Donald C. Avude v Kenya Forest Service [2015] eKLR, the Court reckoned that withholding an employee’s salary exposed him to financial embarrassment that could not be remedied by the mere release of the withheld salary;

  4. The court will not intervene if it is established that there exists mechanisms between the employer and the employee such as appeal or revision that the employee could invoke internally to remedy the dissatisfaction that would otherwise justify the court’s intervention and, the employee has not exhausted such internal mechanisms. Unless the employee can show that the employer is proceeding in a manner that makes it impossible to deal with the breach through the employer’s internal process;

  5. Where the disciplinary process is stage managed towards an employee’s dismissal;

  6. Where the disciplinary process is started with an ulterior motive or is based on outright illegality or one which is defective ab initio;

The above points have been extracted from the following cases (all accessible at http://kenyalaw.org/caselaw/): –

  • Evans Wafula Makokha v Uasin Gishu County Public Service Board [2015] eKLR;
  • Rebecca Ann Maina & 2 others v Jomo Kenyatta University of Agriculture and Technology [2014] eKLR;
  • Joseph Mutura Mberia & Anor v Council of Jomo Kenyatta University of Agriculture and Technology (JKUAT) [2013] eKLR;
  • Aviation & Allied Workers Union v Kenya Airways Ltd [2012] eKLR;
  • Geoffrey Mworia v Water Resources Management Authority & 2 others [2015] eKLR;
  • Rebecca Ann Maina & 2 others v Jomo Kenyatta University of Agriculture and Technology [2014] eKLR;
  • Mulwa Msanifu Kombo v Kenya Airways [2013] eKLR;
  • In Miguna Miguna – versus- Permanent Secretary, Office of the Prime Minister and the Attorney General (2011) eKLR;
  • Ann Wambui Kamuiru v Kenya Airways Limited [2016] eKLR.

If courts have to intervene simply because the process is alleged to be unfair or the reasons not valid then courts will find themselves inundated with applications to stop disciplinary proceedings as opposed to aggrieved persons waiting for conclusion of the proceedings prior to moving the court for damages or reintstatement. Unless one can show otherwise, the loss of a job is not in itself irreparable damage. One should show that the damage they stand to suffer is irreparable; that they have exhausted the internal appeal or revision process or be ablet to demonstrate that the appeal or revision process will not lead to redress.

***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 over 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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Comments

  1. Anonymous says:

    Good read

  2. Esther Ochieng says:

    Dear Anne,

    Good morning.

    Thank you for the educative read on – Courts involvement in disciplinary proceedings.

    The information is well received.

    Many thanks and kind regards,

    *Esther M. Ochieng*

    *Human Resource Office*

    Makinischool│Ngong Road │Thompson Estate │Nairobi, Kenya

    │*(*:0739321277 , 0724468184 , 3874950, 3877164│Fax: 3870167 Email: eochieng@makinischool.com│silas@makinischool.com

    On 7 July 2016 at 22:34, Employment Law – Kenya wrote:

    > Anne Babu posted: ” Disciplinary processes are administered by the > employer. The Employment Act, 2007 sets out the procedure that the employer > should follow prior to terminating an employee on grounds of poor > performance or misconduct. In Ann Wambui Kamuiru v Kenya Airways ” >

  3. james says:

    i appreciate the great mind of a lady in matters to do with legal procedures and especially labour related cases, for this matter can i find some advice from you

  4. Antony Wambura says:

    Thanks Anne Babu, am an HR Officer and I have really been enlightened by your article especially on circumstances surrounding when an employee should seek court redress. I look forward to seeing most of your enriching articles.

    1. Anne Babu says:

      Asante.

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