Sirma v Kenya Pipeline Company Limited & another (Civil Appeal 337 of 2018) [2023] KECA 1136 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that employers can discipline staff during criminal cases, and employees who refuse to attend disciplinary hearings lose the right to complain.
What this practically means
#Executive summary
#Key legal issues
#Whether the Board could lawfully conduct the disciplinary process without prior reference to a disciplinary committee headed by the Managing Director
The Board, as the highest decision-making organ, could act of its own motion and was not obligated to await a committee's recommendations.
The Staff Rules and Regulations gave the Board ultimate authority over disciplinary matters for the employee's job group. Delegation of day-to-day affairs to management did not deprive the Board of the power to deal directly with a serious matter touching on the company's interests. The trial Judge's findings on this point were endorsed, and the appellant's ultra vires challenge failed.
Whether the disciplinary process awaited the outcome of the criminal charges
Internal disciplinary processes are not dependent on the outcome of criminal proceedings; reasonable suspicion of the offence suffices.
The employer was required only to demonstrate reasonable suspicions that the employee committed a criminal offence or engaged in gross misconduct under the Staff Rules. The presumption of innocence in the criminal trial does not bar a concurrent employment disciplinary process. The employee must still avail himself of the opportunity to be heard in that process.
Whether the appellant was accorded a fair hearing
The appellant was given a fair opportunity to be heard but elected not to appear before the Board, waiving that opportunity.
The show-cause letter set out the allegations and gave the appellant 48 hours to respond and an option to appear before the Board. He responded in writing but declined to appear, and his advocates objected to the Board's mandate. Having declined to submit to the process, he could not later claim denial of a fair hearing. The trial court's dismissal of the petition was affirmed.
Legal principles established
#- An employer's internal disciplinary process is independent of parallel criminal proceedings; the employer need only show reasonable suspicion of the offence or gross misconduct, and need not await the outcome of the criminal trial.
- Where an employee is given a reasonable opportunity to be heard in a disciplinary process and declines to utilise it, the employee cannot later complain of breach of the right to a fair hearing.
- A company board as the ultimate decision-maker may itself exercise disciplinary powers and is not obligated to first route the matter through a disciplinary committee headed by the Managing Director.
- On a first appeal, the Court of Appeal must re-analyse and re-assess the evidence and reach its own conclusions.
Court orders
#- 1.The appeal be and is hereby dismissed
- 2.The judgment of the ELRC at Nairobi (Abuodha Jorum Nelson, J.) dated 13th July 2018 in ELRC Petition No. 26 of 2016 be and is hereby upheld
- 3.The costs of the appeal be borne by the appellant
- On appeal from
- Employment and Labour Relations Court at Nairobi
- ELRC Petition No. 26 of 2016
- Jurisdiction invoked
- First appeal to the Court of Appeal from the ELRC (as a first appeal, the Court re-assesses the evidence on record)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sirma v Kenya Pipeline Company Limited & another (Civil Appeal 337 of 2018) [2023] KECA 1136 (KLR)", Case Analysis (2023). Court of Appeal at Nairobi (not numbered on the face of the judgment; appeal from ELRC Petition No. 26 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1136/eng@2023-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.