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ELRCDismissedNot stated in the judgment text· [2023] KEELRC 2186 (KLR)

Chepkonga v Kenya Airways PLC (Cause E549 of 2023) [2023] KEELRC 2186 (KLR)

Employment and Labour Relations Court
20 September 2023
NMNzioki Wa Makau
5,345 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court refused to stop Kenya Airways' disciplinary process at an early stage, ruling such final outcomes must wait for a full hearing.

What this practically means

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Executive summary

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The Claimant, a Kenya Airways cabin crew member and KAWU member, brought two Notices of Motion (dated July 11, 2023 and July 19, 2023) seeking conservatory injunctions to halt a disciplinary process arising from allegations that she failed to declare three gold chains on a flight to Mumbai. She sought declarations that her suspension beyond 45 days, the failure to hold a disciplinary hearing within 14 days of investigations and the continuation of the process beyond 45 days breached Clauses 40(b), (e) and (g) of the CBA with KAWU and Clause 17.10 of the Respondent's HR Manual, and infringed her rights to fair labour practices, fair administrative action, fair hearing and legitimate expectation. She also sought reinstatement and clearing of the charges under Clause 40(g) of the CBA, and a mandatory injunction for disclosure of investigation documents. The Respondent opposed, asserting that the Union consented to extensions, that the court order of July 14, 2023 did not bar the hearing, and that final orders should not issue at an interlocutory stage. Nzioki Wa Makau J held that while the Court may descend into the arena to correct infractions of the Constitution, the Employment Act, the HR Manual or the CBA, respecting managerial prerogatives, the orders sought were final in effect and would amount to determining the suit prematurely. Both applications were disallowed, each party to bear their own costs, and the suit was set down for hearing on the merits.

Key legal issues

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01

Jurisdiction to intervene in a pending disciplinary process

Holding

The Court has jurisdiction to descend into the arena where there is infraction of a rights holder's protections, but must weigh whether the incursion is justified and respect managerial prerogatives

Reasoning

The Court accepted the Alfred Nyungu Kimungui guidance that courts should be cautious, but held that as a rights holder the Claimant is entitled to protections under the Constitution, the Employment Act, the HR Manual and the CBA. Where there is infraction, a court appropriately moved may intervene to correct injustice, subject to weighing whether the incursion is justified and not stepping on managerial prerogatives.

p. 8
02

Entitlement to the relief sought at an interlocutory stage

Holding

Although the Court may intervene in a flawed process, the specific orders sought were final in substance and could not be granted on the motions

Reasoning

The Court held that the orders sought (declarations of breach of the CBA and HR Manual timelines, reinstatement, clearing of charges) would in effect determine the suit on the motions. The proper course was to set down the suit for full hearing so the issues could be fully articulated and determined on the merits. Both applications were therefore disallowed with each party bearing their own costs.

p. 9

Legal principles established

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  • A court may descend into the arena of an employer's disciplinary process where there is infraction of the Constitution, statute, HR manual or CBA, while remaining mindful of managerial prerogative
  • Final substantive relief cannot be granted on interlocutory applications before the suit is heard on the merits

Court orders

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  1. 1.Both the Notice of Motion dated July 11, 2023 and the Notice of Motion dated July 19, 2023 are disallowed
  2. 2.Each party bears their own costs
  3. 3.The Court set a date for hearing of the suit so the issues can be determined on the merits

Authorities

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Legislation

  • Employment and Labour Relations Court Actsection 12(3)
  • Constitution of KenyaArticles 41, 47, 50 and 25(c)
  • Employment Actnot specified
  • Collective Bargaining Agreement between the Respondent and KAWUClauses 40(b), 40(e), 40(g) and paragraph 58
  • Respondent's Human Resource Policies ManualClauses 17.10
  • Recognition Agreement between the Respondent and the Unionclause (c) and clause E

Cases cited (14)

  • Naomi Aching Oketch & 3 other v Seeds of Place Africa International [SOPA] & another
    [2021] eKLR
  • Ian Changamu v Co-operative University of Kenya
    [2022] eKLR
  • Rosemary Waitherero Mburu v Kenya Airways Limited
    [2020] eKLR
  • Mulwa Msanifu Kombo v Kenya Airways
    Industrial Court at Nairobi Cause No. 1012 of 2013
  • Prof. Francis M. Njeruh v Jomo Kenyatta University of Agriculture & Technology
    [2013] eKLR
  • Amos Kioko Musyoka & 7 others v CMC Motors Group Limited
    [2020] eKLR
  • Banking Insurance & Finance Union (K) v Cooperative Bank of Kenya Limited
    ELRC Cause No. 1982 of 2013
  • Giella v Cassman Brown Co. Ltd
    [1973] EA. 358
  • Gladys Boss Shollei v Judicial Service Commission
    [2022] KESC 5 (KLR)
  • Kenya Revenue Authority v Menginya Salim Murgani
    [2010] eKLR
  • Alfred Nyungu Kimungui v Bomas of Kenya
    [2013] eKLR
  • Geoffrey Mworia v Water Resources Management Authority & 2 others
    [2015] eKLR
  • MTM v KIE Limited & another
    [2020] eKLR
  • Kenya Airline Pilots Association v Kenya Airways PLC
    [2021] eKLR
Jurisdiction invoked
Section 12(3) of the Employment and Labour Relations Court Act (invoked by the Claimant as to the Court's power to intervene in a disciplinary process)

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, "Chepkonga v Kenya Airways PLC (Cause E549 of 2023) [2023] KEELRC 2186 (KLR)", Case Analysis (2023). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2186/eng@2023-09-20

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