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ELRCPartially AllowedPetition (ELRC), Nairobi — application dated 24th June 2019 (number not stated in judgment)· [2019] KEELRC 933 (KLR)

Jonathan Chepkwony v George Makateto, the Acting Chief Executive Officer, Export Processing Zone Authority & 2 others [2019] KEELRC 933 (KLR)

Employment and Labour Relations Court
2 August 2019
4,446 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan court halted an employer's disciplinary process, ruling that a hearing with a predetermined outcome denies an employee a fair hearing.

What this practically means

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Executive summary

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The Applicant, Jonathan Chepkwony, Head of Security at the Export Processing Zones Authority, was interdicted on half pay by a show cause letter dated 28th May 2019 on five unparticularized allegations. When he requested particulars, the Authority issued an amended show cause letter on 13th June 2019 with more detail, but his repeated requests for documents — the Ad Hoc Committee report, witness statements, minutes and his appraisals — went unanswered. He moved the ELRC on 24th June 2019 seeking conservatory orders of injunction and prohibition to stop the disciplinary hearing, nullification of the interdiction letter and restoration to his duties. The Respondents opposed, arguing the application was premature, overtaken by events, and that courts should not interfere with an employer's internal disciplinary process. The court reaffirmed the general rule of non-interference but found exceptional circumstances: the show cause letter emanated from a committee investigating unrelated staff discontent, the Applicant's strong appraisals suggested the process sprang 'out of nowhere', his information requests were ignored, and the disciplinary minutes' direction that he consider 'other options' betrayed a predetermined outcome. The court found a prima facie case that the process was a façade to remove him unfairly, and granted conservatory orders restraining the disciplinary process pending the petition, with costs in the cause. Prayers relating to the 24th June hearing were overtaken by events and nullification of the interdiction was left for the full hearing.

Key legal issues

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01

Whether a prima facie case was established for conservatory orders halting the disciplinary process

Holding

Yes — the Applicant demonstrated a likelihood of a predetermined decision to remove him and that the disciplinary process was a façade

Reasoning

The show cause letter arose from an 'ad hoc' committee investigating staff discontent about a different officer, with unexplained charges against the Applicant. He had strong appraisals, repeatedly requested particulars and documents never supplied, and the minutes suggested he consider 'other options'. The court found his fears well founded and that he stood to lose his job unfairly without the orders.

p. 8
02

The proper role of courts in internal disciplinary proceedings

Holding

Courts should generally not interfere except in exceptional circumstances such as breach of procedure or use of the process to remove an employee for no valid reason

Reasoning

Relying on Evans Rees v Richard Alfred Crane as cited in Nancy Makokha Baraza, Prof Gitile Naituli v Multimedia University, Rose Kiragu v TSC and Nixon Bugo, the court stated the general rule of non-interference in managerial prerogative, but held that exceptional circumstances existed here because the process appeared designed to remove the Applicant for reasons unrelated to the stated misconduct and without supplying requested information.

p. 3

Legal principles established

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  • Courts should not interfere in internal disciplinary processes except in exceptional circumstances, including where there is clear violation of the law or the disciplinary procedure, or where the process is being used to remove an employee for no valid reason
  • Re-issuing a show cause letter after an employee complains of lack of particulars is an admission that the complaint of inadequate particulars was genuine

Court orders

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  1. 1.Pending hearing and determination of the petition, the Respondents are jointly and severally restrained from proceeding with the internal disciplinary process against the Applicant
  2. 2.Costs of the application to be in the cause
  3. 3.Parties directed to take directions on the hearing of the petition immediately in view of its urgency

Authorities

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Legislation

  • Constitution of KenyaArticles 25(c), 47, 50
  • Export Processing Zones ActSection 8(1)
  • Employment Act
  • Industrial Court Act
  • Evidence Actdefinition of fact

Cases cited (10)

  • Samson Ole Kisirkoi vs. Masai Mara University & 3 Others
    [2018] eKLR
  • Francis Mwendwa Titus vs. Kenya Pipeline Company Limited
    [2019] eKLR
  • Evans Rees and Others -V- Richard Alfred Crane
    [1994] 2 WLR
  • Nancy Makokha Baraza V Judicial Service Commission and 9 Others
    [2012] eKLR
  • Prof Gitile Naituli –V- University Council, Multimedia University of Kenya
    Cause No. 1200/12
  • Rose Kiragu V TSC
    [2016] eKLR, Nairobi ELRC No. 1607 of 2016
  • Nixon Bugo -V- The Alliance For A Green Revolution In Africa
    Cause No. 2244 of 2014
  • Giela vs. Cassman Brown
    [1975] EA 358
  • Mrao -V- First American Limited and 2 Others
    (2003) K.L.R.
  • Githunguri v. Republic
    Criminal Appeal No. 271 of 1985 [1986] KLR
Jurisdiction invoked
Constitution of Kenya, Articles 25(c), 47 and 50 (fair hearing and fair administrative action); Employment and Labour Relations Court jurisdiction over employment disputes

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, "Jonathan Chepkwony v George Makateto, the Acting Chief Executive Officer, Export Processing Zone Authority & 2 others [2019] KEELRC 933 (KLR)", Case Analysis (2019). Petition (ELRC), Nairobi — application dated 24th June 2019 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/933/eng@2019-08-02

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