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ELRCAllowedCause No. 559 of 2015 (Notice of Motion filed 18/3/2015)· [2016] KEELRC 1700 (KLR)

Philip Karanja Karungu v Senior Board of Discipline & 2 others [2016] KEELRC 1700 (KLR)

Employment and Labour Relations Court
10 February 2016
HWHellen Wasilwa
1,515 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that suspending an employee without holding a disciplinary hearing within a reasonable time is unfair, ordering full back-pay and a deadline to conclude the process.

What this practically means

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Executive summary

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The Applicant, an administrator at Jomo Kenyatta University of Agriculture and Technology, moved the court by Notice of Motion dated 4/3/2015 and filed 18/3/2015 under Sections 25 of the Employment Act and 12 of the Labour Institutions Act, seeking back payment of half salary and full house allowance during suspension, and restraining orders against harassment, intimidation or termination pending the suit. He contended he was suspended on 23/7/2014 over allegations of failing to report theft of stationery and cartridges, which he denied, asserting he had reported the matter to his seniors. He further complained that a disciplinary meeting convened against him was biased and that he was condemned unheard. The Respondents, in a replying affidavit sworn by the 2nd Respondent, Professor P. K. Wainaina, stated the suspension followed investigations, that charges were amended and notified on 8/12/2014, and that the Applicant was invited to a special board of discipline on 1/7/2015 but never appeared, and thus could not claim denial of a hearing. The Applicant countered that he had never refused to attend and that hearings had been postponed three times. The court framed two issues: whether the suspension was justified, and whether the disciplinary process was fair. It found valid grounds for suspension but held the delay of over one and a half years in conducting the hearing inordinate and an infringement of the right to a fair and expeditious hearing, no evidence supporting the claim that the Applicant refused to attend. The court lifted the suspension, ordered payment of all dues from suspension to date and until a proper hearing, and directed a fresh disciplinary process to be concluded within three months, failing which the Applicant would be considered cleared of the charges.

Key legal issues

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01

Whether the suspension pending investigation was justified

Holding

The suspension pending investigation was unjustified and unfair given the inordinate delay in commencing the disciplinary hearing.

Reasoning

The suspension letter of 23/7/2014 gave valid reasons, but the Applicant was only invited to a disciplinary hearing on 24/6/2015, nearly a year later. That hearing was deferred and no further invitation was shown. The court held the delay inordinate, an infringement of the right to a fair and expeditious hearing under Article 50 of the Constitution, and lifted the suspension with back payment of dues.

p. 4
02

Whether the disciplinary process already instituted was fair

Holding

The disciplinary process was flawed and a fresh fair process was to be commenced and finalized within 3 months.

Reasoning

The Respondents failed to produce their Discipline Manual to enable the court assess their process, and produced no evidence that the Applicant refused to attend a hearing. The court concluded the process already commenced was flawed and directed a fresh process within three months, failing which the Applicant would be deemed cleared of the charges.

p. 4

Legal principles established

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  • A reasonable disciplinary hearing process should be conducted within 6 months and a delay of over 1 year is unacceptable and unfair.

Court orders

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  1. 1.The suspension of the Applicant is lifted
  2. 2.The Respondent to pay the Applicant all dues from the time of suspension to date and to continue to do so until a proper disciplinary hearing is carried out
  3. 3.A fresh fair disciplinary process to be commenced and finalized within 3 months, in default the Applicant to be considered cleared of any wrongdoing

Authorities

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Legislation

  • Employment ActSection 25
  • Labour Institutions ActSection 12
  • Labour Relations Act
  • Constitution of Kenya, 2010Article 50 (5) (e)
Jurisdiction invoked
Section 25 of the Employment Act 2007 and Section 12 of the Labour Institutions 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, "Philip Karanja Karungu v Senior Board of Discipline & 2 others [2016] KEELRC 1700 (KLR)", Case Analysis (2016). Cause No. 559 of 2015 (Notice of Motion filed 18/3/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1700/eng@2016-02-10

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