Nyaga v County Sacco Society Ltd (Cause E006 of 2022) [2023] KEELRC 1060 (KLR)

Employment and Labour Relations Court

27 April 2023

OMONESMUS N. MAKAU

1,555 words in judgment

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The bottom line

Winning your suspension case in Kenya's Employment Court doesn't stop your employer from disciplining you over the same allegations.

What this practically means

Executive summary

This is a ruling by Onesmus N. Makau J of the Employment and Labour Relations Court at Nyeri on a notice of motion dated 30th November, 2022, in which the claimant sought to restrain the respondent from proceeding with a disciplinary hearing scheduled for 5th December, 2022, and to declare that process null and void, on the basis that the judgment of Marete J delivered on 31st October, 2022 had invalidated her suspension ab initio and reinstated her unconditionally. The respondent opposed, contending that the earlier judgment merely lifted the suspension and ordered payment of withheld salary without barring disciplinary proceedings; the claimant failed to attend the hearing and was dismissed on 17th December, 2022, rendering the motion moot. The court framed three issues: whether the earlier judgment insulated the claimant from disciplinary action, whether the application was overtaken by events, and whether the orders sought were merited. Comparing the prayers in the earlier suit with the orders actually granted, the court held that Marete J had declined the injunction against dismissal and the prayer to withdraw disciplinary threats, and had dealt only with the propriety of the suspension, not the merits of the allegations. The judgment therefore did not immunize the claimant from discipline. Since the hearing had been concluded and the claimant dismissed, the application was overtaken by events and was dismissed with costs to the respondent.

Key legal issues

Scope of the prior judgment by Marete J

Holding

The judgment of 31st October 2022 dealt only with the suspension; it did not bar disciplinary proceedings on the same allegations.

Reasoning

The court compared the prayers sought with the orders actually granted. The trial court granted lifting of the suspension, release of withheld salary, unconditional resumption of duty and costs. It declined injunction against dismissal and an order compelling withdrawal of the disciplinary enquiry. The court never went into the merits of the allegations, so the judgment could not immunize the claimant from disciplinary action.

p. 4

Whether the motion is overtaken by events

Holding

Yes. The claimant skipped the hearing, was dismissed on 17th December 2022, and the motion sought to stop a concluded process.

Reasoning

The claimant failed to secure interim protection when the motion was filed; she did not attend the disciplinary hearing and was dismissed. Since the hearing had been concluded, the reliefs sought against it could no longer serve any purpose, aligning with the respondent's submission that the application was moot and should be dismissed with costs.

p. 4

Legal principles established

A judgment lifting a suspension and ordering reinstatement does not, unless expressly ordered, immunize an employee from disciplinary proceedings on the allegations underlying the suspension.
An employer retains the legal right to discipline its employees, which courts will not altogether stop but may only correct in process.
An application seeking to restrain a disciplinary hearing that has already been held, resulting in dismissal, is moot and overtaken by events.

Court orders

1.The notice of motion dated 30th November, 2022 is dismissed
2.Costs of the application awarded to the respondent

Authorities

Legislation

Employment and Labour Relations Court (Procedure) Rulesrule 28(3)

Cases cited (2)

Ann Wambui Kamuiru v Kenya Airways Limited
[2016] eKLR
Republic v County Secretary and Head of Public Service, Bomet County & another Exparte Benard Sowek
[2017] eKLR

Jurisdiction invoked: Employment and Labour Relations Court (the suit and motion arise within the ELRC's employment jurisdiction; no specific constitutional or statutory provision invoked in the extract)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Nyaga v County Sacco Society Ltd (Cause E006 of 2022) [2023] KEELRC 1060 (KLR)", Case Analysis (2023). Cause No E006 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1060/eng@2023-04-27

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