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ELRCPartially AllowedPetition dated 24th June 2019 (ELRC)· [2021] KEELRC 791 (KLR)

Jonathan Chepkwony v George Makateto, Acting Chief Executive Officer, Export Processing Zone Authority (EPZA) & 2 others [2021] KEELRC 791 (KLR)

Employment and Labour Relations Court
8 October 2021
MOMaureen Onyango
7,471 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court halted a public employer's disciplinary process because it refused to give the employee the specific allegations and evidence against him.

What this practically means

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Executive summary

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The Petitioner, a security manager employed by the Export Processing Zones Authority since 2015, petitioned the Employment and Labour Relations Court seeking declarations that the disciplinary process commenced against him in May 2019 was unconstitutional, null and void ab initio, together with a permanent injunction restraining further disciplinary action, on the ground that the notices to show cause were devoid of particulars and his requests for particulars and supporting documents were ignored. The Respondents contended that the process was procedural, that interdiction was a neutral investigative step under clause 11.21.1 of the Human Resource Manual, and that the petition was premature as internal mechanisms had not been exhausted. At trial, the Petitioner testified he repeatedly sought particulars of the vague allegations; RW1 (the Acting CEO) admitted the particulars and requested documents were never supplied, and RW2 (the Acting HR Manager) conceded the allegations carried no dates. The Court framed three issues: whether rights had been violated and whether the petition was premature, entitlement to the orders sought, and costs. Applying Article 47, the Fair Administrative Action Act, Sections 41 and 43 of the Employment Act and the employer's own Manual, the Court held the show cause letters failed to meet the required standard of particularity, the interdiction lacked valid grounds, and due process and fair labour practices were violated. It found in favour of the Petitioner, terminated the disciplinary process, reinstated him without loss of benefits, permitted fresh disciplinary proceedings if valid grounds exist, and awarded costs to the Petitioner.

Key legal issues

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01

Whether the show cause letters and disciplinary process complied with the Petitioner's right to fair administrative action and a fair hearing

Holding

The process violated Articles 47 and 236, the Fair Administrative Action Act and the Respondent's own Human Resource Manual because the charges were vague and the requested particulars and documents were never supplied

Reasoning

The Court found the charges were of a very general nature, vague and unsupported; the Ad Hoc Committee report was never produced; and the Petitioner's repeated requests for particulars and documents were ignored. The Respondent's own witnesses, including RW1, admitted particulars and requested documents were never provided. The Court concluded the process was a farce or the charges could not be supported, breaching the right to due process, fair hearing and fair labour practices.

p. 12
02

Whether the Petition was premature for failure to exhaust internal dispute resolution mechanisms

Holding

No; the Petitioner had consistently submitted to the process and only sought particulars he was wrongfully denied, so rushing to Court was justified

Reasoning

The Respondents argued the Petitioner put the cart before the horse by bypassing the internal appeal process. The Court found, however, that the Petitioner attended the hearings, responded to the allegations and repeatedly requested particulars, and that the process itself was marred by irregularities. Where the internal process is mismanaged to the employee's detriment, court intervention is warranted rather than requiring exhaustion of a flawed process.

p. 10
03

Whether the interdiction was a punishment or a lawful procedural step

Holding

The interdiction was not based on valid grounds; it was issued on vague, unparticularised charges arising from an investigation of a different officer

Reasoning

The show cause letter of 28th May 2019 revealed that investigations targeted the Acting Head of Legal Services, not the Petitioner, yet he was interdicted at half pay on generalised charges unrelated to any finding. The Court held the interdiction lacked valid grounds under Section 43 of the Employment Act and the employer's own Manual, making it procedurally improper.

p. 12

Legal principles established

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  • An employee facing disciplinary process is entitled to be supplied with the information, materials and evidence to be relied upon against him
  • A show cause letter must address the allegations with sufficient particularity, including times, dates, places and circumstances, to enable an effective response
  • Courts will not take over the employer's disciplinary function but will intervene where the internal process is flawed, to put it on the right course

Court orders

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  1. 1.The disciplinary process against the Petitioner is terminated and the Petitioner is reinstated to his position as at 28th May 2019 without loss of any benefits
  2. 2.The Respondent is at liberty to institute fresh disciplinary proceedings against the Petitioner should there be valid grounds, provided the same complies with the Respondent's Human Resources Policy and the law
  3. 3.The Respondent shall bear the Petitioner's costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 3, 10, 22, 23(1) & (3), 25(c), 27, 28, 35(b), 41(1), 43(1)(e), 47, 159(2)(d), 48, 232, 236
  • Fair Administrative Action ActSections 3(a) & 3(g)
  • Employment ActSections 41 and 43
  • Export Processing Zones Act Cap 517Section 8(1)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (8)

  • Nicholas Muasya Kyula v Farmchem Limited
    ICN 1992/2001
  • Anarita Karimi Njeru v Republic
  • Maureen K. Imbiakah & Another v Teachers' Service Commission & 2 Others
    [2019] eKLR, Kisumu ELRC Petition No. 20 of 2017
  • Nixon Bugo v The Alliance For A Green Revolution In Africa
    Cause No. 2244 of 2014
  • Rosemary Waitherero Mburu v Kenya Airways Limited
    (2020)
  • Anne Wambui Kamuiru v Kenya Airways
    Cause No. 1684/2015
  • Rebecca Ann Maina & 2 others v Jomo Kenyatta University of Agriculture and Technology
    [2014] eKLR
  • Alfred Nyungu Kimungui v Bomas of Kenya
    Industrial Court Cause No 620 of 2013
Jurisdiction invoked
Articles 23(1) & (3), 22, 25(c), 41(1), 47 and 236 of the Constitution of Kenya, 2010 (enforcement of fundamental rights and freedoms in employment)

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, Acting Chief Executive Officer, Export Processing Zone Authority (EPZA) & 2 others [2021] KEELRC 791 (KLR)", Case Analysis (2021). Petition dated 24th June 2019 (ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/791/eng@2021-10-08

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