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ELRCDismissedPetition dated 15.12.2023· [2024] KEELRC 1278 (KLR)

Kirande v Council of Legal Education (Petition E223 of 2023) [2024] KEELRC 1278 (KLR)

Employment and Labour Relations Court
24 May 2024
BOByram Ongaya
1,534 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed an employee's challenge to a delayed disciplinary hearing, ruling he had waived the six-month timeline by participating without objecting.

What this practically means

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Executive summary

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The petitioner, formerly a senior procurement officer and later principal supply chain management officer at the Council of Legal Education, filed a petition challenging a disciplinary process over loss of toners. He sought declarations that conducting the hearing beyond the six-month period prescribed in the respondent's HR manual was illegal, certiorari to quash the decision to commence or continue the disciplinary hearing, declarations of violations of Articles 26, 35, 47 and 50 of the Constitution, reinstatement by mandamus, payment of withheld dues, compensatory damages and costs on an indemnity basis. He was issued a show cause notice on 06.09.2022, interdicted on 20.03.2023, and invited to a disciplinary hearing that was adjourned and rescheduled several times before concluding on 20.12.2023, resulting in summary dismissal on 29.12.2023 for gross misconduct involving a loss of Kshs 1,384,150. The respondent, through the acting Secretary and CEO's affidavit, maintained that the petitioner was supplied with documents, was heard with his representative, and was properly dismissed with a right of appeal. The court held that although the six-month period lapsed, the petitioner had condoned and waived that procedural safeguard; that he did not challenge the reasons for his dismissal and participated in the process; and that the petition, not amended to attack the summary dismissal and unaccompanied by any appeal, was overtaken by the dismissal. The court found no justification for the reliefs sought, dismissed the petition, and ordered each party to bear its own costs.

Key legal issues

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01

Waiver of the 6-month disciplinary timeline in the HR manual

Holding

The court held that although the 6-month period lapsed, the petitioner condoned and waived the timeline safeguard

Reasoning

The HR manual required conclusion of disciplinary cases within six months of the show cause letter, and over 15 months had elapsed. However, the petitioner participated in hearings across multiple dates and raised the objection late; the court viewed that conduct as condonation of the delay, defeating the claim that the hearing was illegal.

p. 4
02

Overtaking of the petition by the summary dismissal

Holding

The petition, which sought to stop a disciplinary process, was overtaken by the summary dismissal of 29.12.2023, which the petitioner neither challenged by amendment nor by the available appeal

Reasoning

The petition was filed while the disciplinary process was pending and sought to halt it. The process concluded in summary dismissal on 29.12.2023. The petitioner did not amend the petition to attack the dismissal, did not rebut the claim he was supplied documents, and did not exercise his right of appeal, so the reliefs could not be sustained.

p. 4
03

Alleged violation of Articles 26, 35, 47 and 50

Holding

No violation was established; the petitioner was given a chance to participate in the disciplinary process and did not challenge the reasons for his dismissal

Reasoning

The court found the petitioner was afforded an opportunity to defend himself with his representative at the hearing held on 20.12.2023 and received the minutes. He did not rebut the respondent's evidence that documents were supplied, and did not contest the substantive reasons for dismissal, so no fair-hearing or other constitutional breach was made out.

p. 4

Legal principles established

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  • A contractual or procedural safeguard prescribing disciplinary timelines may be waived by condonation by the affected employee
  • A petition not amended to challenge a summary dismissal that issued during proceedings is overtaken by events where the dismissal reasons are not challenged

Court orders

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  1. 1.Dismissal of the petition
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 26
  • Constitution of KenyaArticle 35
  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 50
Jurisdiction invoked
Constitution of Kenya, Articles 26, 35, 47 and 50 invoked in the petition; Employment and Labour Relations Court jurisdiction over employment disputes

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, "Kirande v Council of Legal Education (Petition E223 of 2023) [2024] KEELRC 1278 (KLR)", Case Analysis (2024). Petition dated 15.12.2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1278/eng@2024-05-24

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