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Court of AppealPartially AllowedCivil Appeal 62 of 2018· [2022] KECA 1360 (KLR)

Nebert Mandala Ombajo v Institute of Certified Public Accountants of Kenya (ICPAK)

Court of Appeal
2 December 2022
DMD K MusingaHOHannah OkwenguASMS Asike-Makhandia
3,074 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that giving an employee overnight notice of a disciplinary hearing is unfair and invalidates the dismissal.

What this practically means

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Executive summary

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The appellant, a Chief Officer at ICPAK, was summarily dismissed under section 44(4)(c) of the Employment Act after a disciplinary process in which he had barely two days to respond to a show cause letter and received notice of the disciplinary hearing only the afternoon before it convened. The ELRC (Radido, J) dismissed his unfair termination claim, upheld ICPAK's counterclaim of Kshs 1,165,000, and ordered each party to bear their own costs. The Court of Appeal (Musinga, Okwengu and Asike-Makhandia, JJA) framed four issues: procedural fairness, substantive fairness, entitlement to reliefs, and proof of the Kshs 85,000 counterclaim. Holding that section 41 of the Employment Act, though silent on specific periods, requires a reasonable time to prepare, the Court found the overnight hearing notice oppressive, unfair and unjust, reducing the hearing to a formality and vitiating the entire disciplinary process. It noted with disapproval the trial Judge's unexplained departure from his own materially identical decision in Patrick Abuya. The Court allowed the appeal on the procedural fairness ground and remitted the matter to the ELRC to assess damages for unfair termination, leaving the substantive fairness and counterclaim findings undisturbed but unaddressed. The judgment binds subordinate courts and ELRC judges on the reasonableness of disciplinary notice periods.

Key legal issues

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01

Procedural fairness of the disciplinary process under section 41 of the Employment Act

Holding

The notice periods (barely two days to respond to the show cause letter and overnight notice of the hearing) were inadequate; the disciplinary process was vitiated for lack of procedural fairness.

Reasoning

Section 41 prescribes no specific period, so the period must be reasonable. The respondent gave no explanation for failing to adjust the response due date or for the overnight hearing notice. The haste reduced the hearing to a formality and the prejudice to the employee was not ameliorated by his attendance and response.

p. 6
02

Departure by the trial Judge from his own decision in the Patrick Abuya case

Holding

The Court found no justification for the trial Judge's departure from Patrick Abuya, where materially identical notice periods were held unfair.

Reasoning

The circumstances were identical: same show cause letter dates and near-identical overnight hearing notice. A few hours' difference did not distinguish the appellant's situation. Consistency in applying procedural fairness standards was expected of the same Judge.

03

First appellate court's duty on re-evaluation of evidence

Holding

The Court restated its duty to reconsider and evaluate the evidence afresh while deferring to trial court findings on witness demeanour.

Reasoning

As a first appellate court it must come to its own conclusions on the evidence, giving allowance for not having seen or heard the witnesses, citing Selle v Associated Motor Boat Co and Abok James Odera v John Patrick Machira.

p. 3

Legal principles established

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  • Section 41 of the Employment Act does not prescribe a specific notice period; the period must be reasonable to allow the employee to prepare for the disciplinary hearing.
  • Service of a disciplinary hearing letter the afternoon before a hearing the next morning is oppressive, unfair and unjust and vitiates the disciplinary process.
  • An employer facing allegations against an employee can place the employee on compulsory leave or interdiction pending a disciplinary hearing rather than rushing the process.

Court orders

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  1. 1.Appeal allowed
  2. 2.Matter referred back to the trial court to address the issue of damages for unfair termination

Authorities

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Legislation

  • Employment Actsection 44(4)(c) and (g)
  • Employment Actsection 41
  • Employment Actsection 42(1)
  • Employment Actsection 44(3) and (4)

Cases cited (4)

  • Patrick Abuya v Institute of Certified Public Accountants of Kenya (ICPAK) & Anor
    [2015] eKLR

    Procedural fairness requires advance reasonable notice and time to prepare psychologically; materially identical facts

  • Kalpana H. Rawal, Philip Tunoi, and David A. Onyancha v Judicial Service Commission & Judiciary
    [2016] eKLR

    Allegations of bias must be proved to show the decision-maker did not approach the matter with an open mind

  • Selle & Anor v Associated Motor Boat Co. & Others
    [1968] EA 123

    Duty of a first appellate court to re-evaluate evidence and defer to trial court on demeanour

  • Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates
    [2013] eKLR

    First appellate court's duty to reconsider and evaluate evidence

On appeal from
Employment and Labour Relations Court of Kenya at Nakuru
ELRC No. 224 of 2014
Jurisdiction invoked
First appellate jurisdiction under the Employment and Labour Relations Court Act / Appellate jurisdiction of the Court of Appeal over ELRC decisions

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nebert Mandala Ombajo v Institute of Certified Public Accountants of Kenya (ICPAK)", Case Analysis (2022). Civil Appeal 62 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1360/eng@2022-12-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.