Sammy Erick Njeru v Destaings Nyenyi Nyongesa & 6 others [2016] KEELRC 325 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Judicial interference with internal disciplinary processes
The Court will not normally halt an employer's disciplinary process, but will intervene to ensure compliance with procedural fairness requirements
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.
Requirements of procedural fairness under Section 41
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
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.
Status of the suspension
The suspension may subsist only as a neutral action for the duration of investigations and must not be used to harass the Claimant
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.
Legal principles established
#- 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
#- 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.The Claimant shall be served with specific charges for his response
- 3.The Respondents shall allow the Claimant adequate time within which to respond
- 4.The Respondent shall allow the Claimant reasonable access to documents required by him for his defence
- 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.The Claimant's suspension shall subsist as a neutral action only for the period that the Respondents will be conducting investigations
- 7.The Respondents must not act in any manner that may be construed as harassment to the Claimant
- 8.The interim orders granted on 14th October 2016 are vacated
- 9.Costs of the application to be in the cause
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under employment law; Section 41 of the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.