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ELRCDismissedPetition No E006 of 2020· [2021] KEELRC 1782 (KLR)

Gladys J Cherono v Board of Trustees Nssf & another [2021] KEELRC 1782 (KLR)

Employment and Labour Relations Court
29 April 2021
HWHellen Wasilwa
4,089 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed employers can run internal disciplinary cases and police investigations at the same time without this amounting to double jeopardy.

What this practically means

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Executive summary

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The petitioner, a clerical officer employed by the National Social Security Fund since 1996, was issued with a show cause letter dated 3rd November 2020 following complaints by six members of the public alleging she had received money from them on promises of securing employment at NSSF. She maintained the sums were documented loans. She petitioned the ELRC seeking a declaration that subjecting her to a show cause process over a matter under DCI investigation breached Articles 27, 28, 41 and 50, and a conservatory order barring parallel proceedings. The respondents countered that they had followed due process, that Article 50 does not apply to internal disciplinary processes, and that the petition was premature as the disciplinary hearing had not commenced. The court framed two issues: whether the petition met the threshold for a constitutional petition, and whether the concurrent disciplinary and criminal processes amounted to double jeopardy. Applying Anarita Karimi Njeru, the court found the petition had not set out with precision the constitutional provisions infringed. On double jeopardy, relying on Jeremiah Gitau Kiereini v Capital Markets Authority, it held that the rule applies strictly to criminal offences, and that internal disciplinary and criminal processes are independent and may proceed side by side. It declined to interfere with the disciplinary process, applying MTM v KIE Limited and Rosemary Waitherero Mburu v Kenya Airways. The petition was dismissed with no order of costs.

Key legal issues

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01

Whether the petition met the threshold for a constitutional petition

Holding

The petition failed the Anarita Karimi Njeru standard; it did not clearly specify the constitutional provisions infringed and how.

Reasoning

The court reviewed Articles 22, 23, 27, 28, 40, 47, 48 and 50 invoked by the petitioner and found she had merely regurgitated constitutional provisions without particularising the specific breaches. The court also noted that Article 50(2) as pleaded actually refers to res judicata rather than double jeopardy, and found the petition deficient in pleading.

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02

Whether concurrent disciplinary and criminal proceedings amount to double jeopardy

Holding

No. Double jeopardy strictly applies to criminal offences, not to parallel administrative or disciplinary proceedings.

Reasoning

Relying on Jeremiah Gitau Kiereini v Capital Markets Authority, the court held the double jeopardy rule applies only to criminal trials. Internal disciplinary processes and criminal processes are independent and may proceed side by side, neither barring the other. The criminal case was withdrawn due to interim orders, but this did not bar the respondent's internal disciplinary process.

p. 5
03

Whether the court should interfere with the respondent's internal disciplinary process

Holding

No. The process was not shown to be flawed; the petitioner was served with a show cause letter, given time and opportunity to respond.

Reasoning

The court applied MTM v KIE Limited and Rosemary Waitherero Mburu v Kenya Airways, reiterating that courts are reluctant to interfere with an employer's internal disciplinary process unless evidently flawed and in breach of the law; interference is limited to putting the process back on the right course. The petitioner had not demonstrated any flaw.

p. 5

Legal principles established

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  • A constitutional petition must set out with reasonable precision the provision infringed and the manner of infringement (Anarita Karimi Njeru principle).
  • Subjecting an employee to internal disciplinary process and criminal proceedings concurrently is not double jeopardy.
  • Courts will interfere with an employer's internal disciplinary process only where it is evidently flawed.

Court orders

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  1. 1.The petition is dismissed.
  2. 2.No order of costs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 23, 27(1)(2)(3), 28, 40, 41, 47, 48, 50, 50(2)(o)
  • Employment ActSection 44(1)
  • National Police Service Act No. 11A of 2011Sections 35 and 52(1)

Cases cited (7)

  • Mathew Kipchumba Koskei v Baringo Teachers Sacco
    [2013] eKLR
  • Geoffrey Mworia v Water Resources Management Authority
    [2015] eKLR
  • Anarita Karimi Njeru v Republic
    (1979) KLR 154
  • James Makura M'Abira v Director of Public Prosecution
    [2020] eKLR
  • MTM v KIE Limited & Another
    [2020] eKLR
  • Rosemary Waitherero Mburu v Kenya Airways Limited
    [2020] eKLR
  • Jeremiah Gitau Kiereini v Capital Markets Authority and the Attorney General
    [2013] eKLR
Jurisdiction invoked
Article 22 and 23 of the Constitution (employment and labour relations jurisdiction of the ELRC); enforcement of Bill of Rights

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Gladys J Cherono v Board of Trustees Nssf & another [2021] KEELRC 1782 (KLR)", Case Analysis (2021). Petition No E006 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1782/eng@2021-04-29

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