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ELRCPartially AllowedPetition (with Notice of Motion dated 18th July 2019)· [2019] KEELRC 2563 (KLR)

Godwin Barasa Barechi v Kenya Trade Networks Agency [2019] KEELRC 2563 (KLR)

Employment and Labour Relations Court
5 February 2019
1,782 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Petitioner, an employee of the Respondent, was suspended in May 2017 following the loss of 21 of 35 laptops received from IFC, and was charged with stealing by servant in Milimani MCCR 905 of 2017, which case remained pending. He was indefinitely suspended in June 2017 and paid only house allowance. The Respondent later initiated an internal disciplinary process. The Applicant filed a Notice of Motion seeking conservatory orders to restrain the disciplinary process and any termination pending the criminal trial, declarations of violation of his right to fair trial and fair administrative action, and orders compelling payment of half basic salary, house allowance, medical cover and arrears of 15 months. The Respondent opposed, contending that disciplinary and criminal processes are independent and that the disciplinary process followed its HR Manual. The court, applying Giella v Cassman Brown, declined to interfere with the disciplinary process, holding that an employer is entitled to conduct independent disciplinary proceedings even where a criminal case on the same facts is pending, absent illegality or manifest flaw. However, the court found the Respondent in breach of its own HR Manual Clause 11.22.2, which entitles a suspended officer to allowances and medical benefits, by paying only house allowance. The court ordered the Respondent to proceed with the disciplinary process but to immediately reinstate the Applicant's medical benefits and pay all allowances and arrears. Costs of the application were awarded in the cause.

Key legal issues

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01

Whether the court should stop an employer's internal disciplinary process where a parallel criminal case is pending

Holding

No. Disciplinary and criminal processes are independent and the court will not restrain a disciplinary process unless it is illegal or manifestly flawed.

Reasoning

The court applied the Giella prima facie test and its consistent practice that managerial prerogative in staff discipline should not be stifled merely because criminal proceedings on the same facts exist. The Applicant did not allege any flaw in the process, only oppression from the parallel criminal charge, which cannot justify interference. Following Professor Gitile Naituli, courts should not take away managerial prerogatives.

02

Entitlement to emoluments during suspension

Holding

The Respondent breached its own HR Manual Clause 11.22.2 by paying only house allowance; it was ordered to reinstate medical benefits and pay all allowances and arrears immediately.

Reasoning

Clause 11.22.2 of the Respondent's own Human Resource Manual entitles a suspended officer to allowances and medical benefits though not basic salary. By paying only house allowance the Respondent violated its own policy, so the court ordered immediate payment of all allowances and medical benefits including arrears.

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Legal principles established

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  • An employer may institute independent disciplinary proceedings against an employee notwithstanding a criminal case arising from the same facts; the two processes are independent.
  • A court will interfere with an internal disciplinary process only where it is illegal and manifestly flawed, and then only to redirect it onto a proper course.
  • An employer is bound by its own HR manual; failure to pay allowances and medical benefits during suspension contrary to the manual is a disregard of its own policy.

Court orders

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  1. 1.Refusal to restrain the Respondent from conducting its internal disciplinary process
  2. 2.Order that the Respondent proceed with its disciplinary process
  3. 3.Order that the Respondent reinstate the Applicant's medical benefits and payment of all allowances and arrears of all unpaid allowances immediately
  4. 4.Costs of the application in the cause

Authorities

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Legislation

  • Penal CodeSection 268(1) as read with Section 281
  • Employment Actgeneral reference by Rika J quote

Cases cited (2)

  • Giella vs Cassman Brown and Company Limited
    (1973) EA 388
  • Professor Gitile Naituli vs University Council Multimedia University College and Another
    Industrial Court Cause No. 1200 of 2012
Jurisdiction invoked
Constitutional petition invoking fair trial and fair administrative action rights (Articles referenced as right to fair trial and administration of justice)

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, "Godwin Barasa Barechi v Kenya Trade Networks Agency [2019] KEELRC 2563 (KLR)", Case Analysis (2019). Petition (with Notice of Motion dated 18th July 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2563/eng@2019-02-05

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