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ELRCOtherNotice of Motion dated 14th October 2016 (Employment and Labour Relations Court)· [2016] KEELRC 325 (KLR)

Sammy Erick Njeru v Destaings Nyenyi Nyongesa & 6 others [2016] KEELRC 325 (KLR)

Employment and Labour Relations Court
25 November 2016
1,028 words in judgment
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The bottom line

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A Kenyan court refused to stop an employer's disciplinary process but ordered it to follow fair-hearing rules under Section 41 of the Employment Act.

What this practically means

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Executive summary

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The Claimant, an employee of the Respondents connected to the Maseno University Retirement Benefits Scheme, moved the Court by Notice of Motion dated 14th October 2016 seeking a stay of a suspension letter dated 11th October 2016 and a temporary injunction restraining the Respondents from breaching his employment contract dated 11th November 2013. He argued that the Retirement Benefits Authority had investigated the running of the Scheme and an independent investigator, M/S Roberts Insurance Brokers Limited, had not found wrongdoing on his part, and that a Select Committee of the Board had investigated him without supplying a written list of allegations. The Respondents, in a replying affidavit sworn by the 1st Respondent's Chairman Dr. Destaings Nyenyi Nyongesa, deponed that the Claimant's performance was unsatisfactory, that RBA had asked him to leave office, and that a Board resolution of 11th October 2016 resolved to invite him to show cause why disciplinary action should not be taken and to suspend him pending appearance before the Board on 11th November 2016. The Court framed the question as whether it could interfere with the internal disciplinary process. It held that such processes are management prerogatives with which the Court will not normally interfere absent violation of the procedural fairness requirements of Section 41 of the Employment Act, 2007, and that clearance by the RBA did not bar internal disciplinary proceedings. The Court declined to halt the process but issued specific directions: service of specific charges, adequate time to respond, access to defence documents, a duly constituted panel with the right to be accompanied, suspension only as a neutral action during investigations, and no harassment. The interim orders of 14th October 2016 were vacated and costs were made costs in the cause.

Key legal issues

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01

Judicial interference with internal disciplinary processes

Holding

The Court will not normally halt an employer's disciplinary process, but will intervene to ensure compliance with procedural fairness requirements

Reasoning

Disciplinary processes rank high among management prerogatives. The Court intervenes only where the procedural fairness requirements of Section 41 of the Employment Act, 2007 are violated, and its intervention is directed at putting things right rather than halting the process. Clearance by the RBA does not bar an employer from initiating its own internal disciplinary proceedings.

p. 2
02

Requirements of procedural fairness under Section 41

Holding

The employee must be served with specific charges, given adequate time to respond, allowed access to relevant documents, and afforded a hearing before a duly constituted panel with the right to be accompanied

Reasoning

Drawing on Rebecca Ann Maina and 2 Others v Jomo Kenyatta University of Agriculture and Technology, the Court held that charges must be clear, the employee afforded sufficient time to prepare a defence, and entitled to documents in the employer's possession that would assist the defence. The Court issued specific directions to secure these safeguards during the pending disciplinary process.

p. 2
03

Status of the suspension

Holding

The suspension may subsist only as a neutral action for the duration of investigations and must not be used to harass the Claimant

Reasoning

Having declined to stay the suspension outright, the Court regulated its use: it must remain neutral and limited to the investigative period, and the Respondents must avoid any conduct that could be construed as harassment pending the disciplinary hearing.

p. 3

Legal principles established

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  • A disciplinary process is a management prerogative with which the Court will not normally interfere unless statutory procedural fairness requirements are being violated
  • Section 41 of the Employment Act, 2007 sets the threshold for procedural fairness in internal disciplinary cases

Court orders

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  1. 1.The internal disciplinary process initiated by the Respondents against the Claimant shall proceed in accordance with the parameters set out in Section 41 of the Employment Act
  2. 2.The Claimant shall be served with specific charges for his response
  3. 3.The Respondents shall allow the Claimant adequate time within which to respond
  4. 4.The Respondent shall allow the Claimant reasonable access to documents required by him for his defence
  5. 5.The Claimant shall be afforded an opportunity to appear before a duly constituted disciplinary panel with his right to be accompanied being secured
  6. 6.The Claimant's suspension shall subsist as a neutral action only for the period that the Respondents will be conducting investigations
  7. 7.The Respondents must not act in any manner that may be construed as harassment to the Claimant
  8. 8.The interim orders granted on 14th October 2016 are vacated
  9. 9.Costs of the application to be in the cause

Authorities

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Legislation

  • Employment ActSection 41

Cases cited (1)

  • Rebecca Ann Maina and 2 Others v Jomo Kenyatta University of Agriculture and Technology
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under employment law; Section 41 of the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Sammy Erick Njeru v Destaings Nyenyi Nyongesa & 6 others [2016] KEELRC 325 (KLR)", Case Analysis (2016). Notice of Motion dated 14th October 2016 (Employment and Labour Relations Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/325/eng@2016-11-25

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