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ELRCDismissedNot stated in the judgment (Notice of motion dated 15th August, 2023 within a constitutional Petition)· [2024] KEELRC 122 (KLR)

Ndungu v Secretary General, Kenya National Union of Teacher & 2 others (Employment and Labour Relations Petition E018 of 2023) [2024] KEELRC 122 (KLR)

Employment and Labour Relations Court
1 February 2024
HWHellen Wasilwa
2,479 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court declined to halt a KNUT official's suspension, ruling that courts won't interfere with internal disciplinary processes unless a clear flaw is shown.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court (Hellen Wasilwa, J) determined a Notice of motion dated 15th August 2023 in which the Applicant, the elected KNUT Nyandarua North Branch Executive Secretary, sought orders restraining the Respondents from implementing a decision of 9th August 2023 suspending him for alleged misconduct. He argued the suspension violated his rights to be heard, human dignity, fair administrative action and fair labour practices. The Respondents opposed, contending that the Applicant was not a registered teacher and thus ineligible for election; that the 3rd Respondent, as acting chairperson, lawfully convened the meeting; that the Applicant attended and was suspended; and that the application was premature as the Applicant had not exhausted the internal appeal to the National Executive Council under Article X(C)(5)(1) of the KNUT Constitution. The Respondents relied on Giella v Cassman Brown, Nguruman, and authorities on balance of convenience and undertakings as to damages; the Applicant filed no submissions. The court held that the applicant sought a stay of a suspension that had already been executed, that courts will not interfere with an employer's internal disciplinary process absent proof of a flaw, and that no flaw had been demonstrated. The application was dismissed, with the Respondent permitted to conclude its internal disciplinary process fairly and within its disciplinary code, the main claim left free to proceed if need be, and costs in the cause.

Key legal issues

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01

Whether the Court could stay a suspension already executed

Holding

The application could not hold because the suspension decision had already been made and executed through the Respondents' internal disciplinary processes.

Reasoning

The court observed that what the applicant sought was a stay of a suspension that had already taken effect. The decision was a product of the respondent's internal disciplinary processes, and absent proof of a flaw in that process, the court would not intervene. The applicant was left to pursue his main claim if need be.

p. 5
02

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

Holding

The court declined to halt the process but directed that it be concluded fairly and within the parameters of the respondent's disciplinary code.

Reasoning

Relying on the principle of non-interference with internal disciplinary processes absent a flaw, the court found the applicant had not shown any defect in the process. However, it retained oversight by directing that the process be carried out fairly and in accordance with the disciplinary code, and preserved the main claim for trial.

p. 5

Legal principles established

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  • Courts will not normally interfere with an employer's internal disciplinary process unless it is established that it is flawed

Court orders

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  1. 1.Dismissal of the application to stay the suspension
  2. 2.The Respondent was allowed to proceed and conclude its internal disciplinary process fairly and within its disciplinary code
  3. 3.The main claim may proceed if there is need
  4. 4.Costs in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 23
  • Constitution of KenyaArticle 162
  • Constitution of KenyaArticle 165
  • Constitution of Kenya (Protection of Rights and Fundamental Freedom) Practice and Procedure Rules, 2013Rule 23
  • KNUT ConstitutionArticle X(E)(1)
  • KNUT ConstitutionArticle X(C)(5)(1)
  • Employment ActNot specified

Cases cited (7)

  • Giella v Cassman Brown & Co Limited
    [1973] EA 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Mrao Ltd. v. First American Bank of Kenya Ltd & 2 others
    [2003] KLR 125
  • Jeff Milton O Odongo v Kenya Ports Authority
    [2016] eKLR
  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    [2018] eKLR
  • Joseph Hinga Gati v Barclays Bank (K) Ltd
    [2001] eKLR
  • Chatur Radio Service v Pronogram Limited
    [1994] eKLR
Jurisdiction invoked
Articles 23, 162 and 165 of the Constitution of Kenya; Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

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, "Ndungu v Secretary General, Kenya National Union of Teacher & 2 others (Employment and Labour Relations Petition E018 of 2023) [2024] KEELRC 122 (KLR)", Case Analysis (2024). Not stated in the judgment (Notice of motion dated 15th August, 2023 within a constitutional Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/122/eng@2024-02-01

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