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ELRCDismissedNot stated in judgment· [2013] KEELRC 747 (KLR)

Mulwa Msanifu Kombo v Kenya Airways [2013] KEELRC 747 (KLR)

Industrial Court of Kenya
23 August 2013
MMM. Mbaru
3,449 words in judgment
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The bottom line

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Kenya's Industrial Court refused to stop an employer's disciplinary process but protected the employee's job until that process concludes.

What this practically means

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Executive summary

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The claimant, an employee of the respondent based at JKIA since 2006, filed a Notice of Motion dated 4th July 2013 seeking a temporary injunction restraining his termination, an order restraining any handover of company property, payment of salaries pending hearing, and an order compelling the respondent to explain and secure the release of his KAA staff pass, which KAA had confiscated on 23rd May 2013 following an incident in which he was found with an undeclared second mobile phone at an airport exit. The respondent, through the affidavit of Kennedy Mulunda, opposed the application, asserting that KAA alone issues and withdraws passes, that the claimant's role was limited to confirming employment, that the claimant absented himself from duty without permission prompting disciplinary action, and that the application was premature and an abuse of process meant to undermine a lawful disciplinary process. The court confirmed its jurisdiction over disputes arising from pending administrative disciplinary actions under section 12, but held that intervention is warranted only rarely and in clear cases of unfairness or breach of natural justice, citing Miguna Miguna and Muthusi v Gathogo. Finding that the pass issue lay with KAA, a third party not before the court, and that the claimant's grievances could properly be addressed by the disciplinary panel before which he could be represented, the court declined the interim orders sought. Invoking section 46(h) of the Employment Act, it nonetheless ordered that the claimant remain in employment until conclusion of the disciplinary process, and that each party bear their own costs.

Key legal issues

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01

Whether the court should intervene by interim orders in the employer's pending disciplinary process

Holding

The application was dismissed; the claimant failed to establish the threshold for intervention since the disciplinary panel could properly hear and determine the matters raised

Reasoning

The court reiterated that it will intervene in disciplinary processes only rarely and in clear cases of unfairness or breach of natural justice. Here the claimant, a unionised employee who can be represented before the disciplinary panel, had not been terminated, remained in employment on unpaid leave, and the issues he raised could be properly canvassed before the disciplinary panel. The pass issue lay with KAA, a third party not joined to the proceedings.

p. 5
02

Responsibility for the withdrawn KAA restricted area pass

Holding

The pass belonged to and was withdrawn by KAA; the respondent's role was limited to confirming employment, so the claimant had to resolve the pass issue with KAA

Reasoning

The court examined the pass application form annexed to the respondent's affidavit, noting that clearance and final authority rest with KAA while the employer only gives authorisation. The claimant already held a pass which KAA, a third party not party to the proceedings, withdrew. The respondent had no control over its issuance or withdrawal, so the relief sought against the respondent could not lie.

p. 5
03

Protection of the claimant's employment pending the disciplinary process

Holding

The court preserved the claimant's employment until conclusion of the disciplinary process, barring lawful discipline on substantially different and proven misconduct

Reasoning

Although declining the injunction, the court invoked section 46(h) of the Employment Act, which protects employees who institute responsible and founded complaints or legal proceedings against their employers. Finding the claimant's complaint responsible and well-founded given the complex legal issues and his apprehension, the court issued a preservative order keeping him in employment during the disciplinary process.

p. 5

Legal principles established

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  • The Industrial Court has jurisdiction over disputes relating to pending administrative disciplinary actions by employers and may make interim preservation orders without usurping the employer's disciplinary role
  • The court will intervene in an employer's disciplinary process only rarely and in clear cases of unfairness, breach of natural justice, breach of prescribed procedure, or manifest injustice, and generally not where internal remedies have not been exhausted
  • An employee's initiation of a responsible and founded complaint or legal proceedings against his employer shall not constitute a fair reason for dismissal or adverse decision under section 46(h) of the Employment Act

Court orders

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  1. 1.The claimant shall remain in the employment and duty of the respondent until the conclusion of the disciplinary process occasioning the commencement of this cause unless otherwise lawfully disciplined on account of substantially different and proven misconduct
  2. 2.Each party to bear their own costs of the application

Authorities

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Legislation

  • Industrial Court Actsections 3, 4 and 12
  • Employment Act, 2007sections 12 (including 12(3)(i)), 17, 18, 25, 35, 41, 44(4), 46(h), 51 and 87
  • Industrial Court (Procedure) RulesRules 16 and 17
  • Kenya Airports Authority Actsection 39
  • Constitution of Kenya, 2010Article 41

Cases cited (3)

  • Giella versus Cassman Brown and Company
    (1973) EA 358
  • Miguna Miguna – versus- Permanent Secretary, Office of the Prime Minister and the Attorney General
    (2011) eKLR
  • Muthusi and 2 others -versus-Gathogo and 2 others
    (1990) KLR 90
Jurisdiction invoked
Sections 3, 4 and 12 of the Industrial Court Act and section 12 of the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Mulwa Msanifu Kombo v Kenya Airways [2013] KEELRC 747 (KLR)", Case Analysis (2013). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/747/eng@2013-08-23

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