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ELRCDismissedNotice of Motion dated 26th September, 2016 (claim not numbered in judgment)· [2018] KEELRC 1544 (KLR)

Andrew Akendo Ogombe v Fazul Mahamed Yusuf & another [2018] KEELRC 1544 (KLR)

Employment and Labour Relations Court of Kenya
6 July 2018
ANAbuodha J. N.
3,376 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenyan courts won't stop a workplace disciplinary process unless the employer ignores its own rules or breaches natural justice - employees must first exhaust internal appeals.

What this practically means

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Executive summary

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The claimant, Deputy Executive Director of the NGOs Co-ordination Board, moved the court by Notice of Motion dated 26th September 2016 seeking interlocutory orders restraining the Board from enforcing a FINAD Committee resolution of 29th August 2016 suspending him, directing that he continue working with full access to office resources, and restoring his full salary and benefits. He had been suspended following a complaint by one Abdirahman Maalim Mohamed alleging he solicited a bribe to issue recommendation letters to assist the complainant's NGO raise funds. The claimant admitted receiving Kshs 8,000 but said it was payment passed on to a consultant, George Omboga, whom he had referred to the complainant. He challenged the suspension as ultra vires sections 6(3) and 8 of the NGOs Co-ordination Act, contending the Board had not sat since its gazettement in October 2015 and could not delegate disciplinary powers to the FINAD Committee. The respondents maintained the disciplinary process was lawfully commenced under the Human Resource Manual and still ongoing, with the claimant to be heard before the FINAD Committee. Applying the interlocutory test, the court held the allegations were serious but resolvable at a disciplinary hearing, and that it could not usurp the employer's managerial role where a procedure manual existed, absent fundamental breach of natural justice. It declined the orders sought, directed strict adherence to the Human Resource Procedure Manual, and retained jurisdiction once internal mechanisms were exhausted.

Key legal issues

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01

Exhaustion of internal disciplinary mechanisms before court intervention

Holding

The court declined to interfere with the ongoing disciplinary process; the claimant had an internal appeal right he had not invoked and the suspension was a facilitative measure pending investigation

Reasoning

The Human Resource Procedure Manual provided for suspension pending investigation and an appeal to an appeals committee. The claimant never raised the alleged incapacity of FINAD in writing or demanded regularisation, and had not exhausted the internal appeal. The court would only intervene on a fundamental breach of agreed rules or natural justice.

p. 5
02

Interlocutory relief in employment disputes

Holding

The claimant failed to establish a case for interlocutory orders; the propriety of the suspension could only be resolved through the disciplinary hearing and, if necessary, full trial

Reasoning

The court applied the standard interlocutory test - prima facie case, adequacy of damages, balance of convenience - and added that for employment contract claims the court must consider whether interlocutory orders are appropriate or whether the matter should await full trial. The allegations were serious but the claimant had a defence to be tested at the disciplinary hearing.

p. 4
03

Judicial non-interference in managerial functions

Holding

The court cannot usurp the employer's managerial role in human resource matters where an agreed procedure exists

Reasoning

Counsel for the respondent argued the orders sought amounted to the court sitting in place of an employer. The court agreed, holding that where a human resource procedure manual exists, the court will not impose a different procedure unless it is obviously contrary to natural justice or inconsistent with industry practice.

p. 4

Legal principles established

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  • A court cannot substitute its own view of a better disciplinary procedure for that in an organisation's human resource manual unless the procedure is plainly contrary to natural justice
  • Employees must exhaust internal disciplinary and appeal mechanisms before approaching the court

Court orders

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  1. 1.The court declines to grant the orders sought in the application
  2. 2.The parties, especially the 2nd respondent, to strictly adhere to its own human resource procedure manual in handling the applicant's case
  3. 3.The court will be seized of jurisdiction once the internal mechanisms are exhausted

Authorities

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Legislation

  • NGOs Co-ordination Act (Rev 2012)sections 3(1) and (2), 6(3), 8
  • Employment Act, 2007section 41
  • Leadership and Integrity Actnot specified
  • Constitution of Kenyachapter 6
  • Public Service Commission Human Resource Policies (Revised) May 2016Regulation K.8 (2)
  • Code of Governance for State Corporationsnot specified
  • NGOs Co-ordination Board Human Resource Procedures Manualclauses 9.4, 9.4.7(iii), 10.2 paragraph 10, 10.9.3, J.25(1)

Cases cited (2)

  • Microsoft Corporation Vs Mitsumi Computer Garage Ltd & another
    [2001] eKLR
  • Professor Gutile Naituli Vs University Counsel of Multimedia University & Another
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over claim based on contract of employment (employment/labour dispute); no specific constitutional provision cited

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, "Andrew Akendo Ogombe v Fazul Mahamed Yusuf & another [2018] KEELRC 1544 (KLR)", Case Analysis (2018). Notice of Motion dated 26th September, 2016 (claim not numbered in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1544/eng@2018-07-06

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