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ELRCPartially AllowedPetition No E020 of 2023· [2024] KEELRC 76 (KLR)

Onsongo & 2 others v Naivasha Water Sewerage & Sanitation Company Limited (Petition E020 of 2023) [2024] KEELRC 76 (KLR)

Employment and Labour Relations Court
25 January 2024
HWHellen Wasilwa
3,345 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled employees must face a fair disciplinary hearing rather than having it stopped, but employers must first disclose all allegations and evidence.

What this practically means

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Executive summary

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This ruling by the Employment and Labour Relations Court (Hellen Wasilwa, J) determines a Notice of Motion dated 20th September 2023 in which three employees suspended by their employer, a water services company, sought conservatory orders of injunction and prohibition restraining the disciplinary process, and nullification of their suspension letters issued on 13th September 2023. The applicants alleged the show-cause letter lacked particulars, the six-day timeline to respond denied them a fair hearing, and that the suspension was malicious retaliation for their trade union activities, breaching Articles 25 and 47 of the Constitution. The respondent, through its Human Resource Manager, denied these claims, asserting the suspension related to aiding illegal water connections and receiving bribes, followed the HR Manual, and that the petition prematurely aborted a duly convened disciplinary hearing. The respondent relied on authority that courts should not interfere with internal disciplinary processes absent exceptional circumstances, and that the petition failed the Anarita Karimi Njeru threshold. The court framed one issue: whether it could grant interim reliefs stopping the disciplinary process. It held that courts should not interfere with an employer's internal disciplinary process unless the process is flawed, and that even where flaws appear, the court's duty is to direct a fair process rather than stop it. Finding the applicants' evidence of union-targeting not exhibited and the only flaw being non-disclosure of evidence on the allegations, the court declined to halt the process. It allowed the respondents to proceed with a proper disciplinary process on condition that the details of the allegations and the investigation report be served on the applicants before the hearing, and that the process conclude within six months per the HR Manual. Costs were awarded in the petition.

Key legal issues

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Whether the court can grant interim conservatory orders restraining an employer's internal disciplinary process

Holding

The application to stop the disciplinary process was refused, but the court directed that the respondents proceed with a proper, fair disciplinary process

Reasoning

The court reiterated the settled position that courts should restrain from interfering with an employer's internal disciplinary processes unless the process is flawed. The applicants alleged premeditation and lack of particulars but the only flaw shown was failure to provide evidence/materials on the alleged illegal connections. The appropriate remedy was therefore not to halt the process but to order disclosure of the allegations and investigation report before the hearing, with a 6-month time limit.

p. 7

Legal principles established

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  • Courts should not stop an employer's internal disciplinary process altogether; where the process appears flawed, the court's duty is to direct a proper fair process to proceed

Court orders

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  1. 1.Respondents allowed to proceed with a proper disciplinary process
  2. 2.Details of the allegations and the investigation report to be served upon the applicants before the hearing
  3. 3.The disciplinary process must not exceed 6 months as per the Respondent's HR Manual
  4. 4.Costs in the petition

Authorities

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Legislation

  • Law Reform ActSections 8 & 9
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure Rules 2010Order 53
  • Constitution of Kenya 2010Articles 2, 3(1), 10, 20, 22(1), 23(1)&(3), 25, 47(1), 165(3)(b), 22 and 258
  • Employment Act 2007Remedies of compensation, reinstatement or re-engagement (as referenced in cited authority)

Cases cited (9)

  • Fredrick Saundu Amolo (Suing through the Executive Secretary KUPPET Kajiado County Branch) v Principal, Namanga Mixed Day Secondary School and Others
  • Anarita Karimi Njeru v Republic
    [1979] eKLR
  • Commission for Human Rights and Justice v Land Settlement Board of Trustees & 5 others
    [2021] eKLR
  • Sisilia Nyakoe & Another v Attorney General & 4 others
    [2021] eKLR
  • Joseph G Naituli v Egerton University & Another
    [2007] eKLR
  • Judith Mbayah Tsisiga v Teachers Service Commission
    [2017] eKLR
  • ASL v National Bank of Kenya Limited
    [2018] eKLR
  • Mercy Oyugi v Kenya Ports Authority
    [2018] eKLR
  • Joseph Mutuura Mberia & Another v Council Jomo Kenyatta University of Agriculture and Technology (JKUAT)
    [2013] eKLR
Jurisdiction invoked
Articles 2, 3(1), 10, 20, 22(1), 23(1)&(3), 47(1), 165(3)(b) of the Constitution; sections 8 & 9 of the Law Reform Act; Order 53 Civil Procedure Rules 2010

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, "Onsongo & 2 others v Naivasha Water Sewerage & Sanitation Company Limited (Petition E020 of 2023) [2024] KEELRC 76 (KLR)", Case Analysis (2024). Petition No E020 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/76/eng@2024-01-25

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