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ELRCDismissedPetition E006 of 2022· [2024] KEELRC 2445 (KLR)

Mugo HSC v Mugo & 2 others (Petition E006 of 2022) [2024] KEELRC 2445 (KLR)

Employment and Labour Relations Court
9 October 2024
OMONESMUS N MAKAU
8,643 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court refused to stop a Sacco's disciplinary process against its suspended CEO, ruling courts only fix flawed procedures, not shield employees.

What this practically means

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Executive summary

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The petitioner, CEO of the 3rd respondent Sacco for about 30 years, was directed to proceed on 76 pending leave days in March 2022. While on leave, anomalies were discovered and on 3rd June 2022 she was suspended for 90 days to pave way for investigations. She filed a petition on 20th July 2022 seeking declarations that the suspension exceeded the respondents' powers and violated her rights under Articles 27, 28, 31, 41 and 47, plus certiorari to quash the suspension and mandamus to halt investigations and recall her to work. The respondents filed a response and a cross-petition dated 19th August 2022 seeking a declaration that she was unfit to hold office and reimbursement of Kshs.26,623,521 allegedly lost through her misconduct. A consent of 26th July 2022 had halted the disciplinary proceedings pending the suit, with the petitioner remaining on suspension on full basic salary. The court, Onesmus N Makau J, framed four issues. Applying MTM v KIE and Rosemary Waitherero Mburu v Kenya Airways, it held that courts intervene in internal disciplinary processes only where they are flawed, and the burden lies on the employee to prove procedural impropriety. The court found the suspension was made after a Board resolution, complied with clauses 9.9 and 9.10 of the HR Manual, and that a show cause letter was not required before suspension. Constitutional violation claims were held premature, the disciplinary process having not concluded. The cross-petition reliefs were also declined as premature, being left to the internal process. Both the petition and cross-petition were dismissed with each party bearing own costs.

Key legal issues

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01

Whether the court should intervene in and quash the suspension

Holding

No; suspension followed a Board resolution and complied with the HR Manual, so no basis for intervention

Reasoning

The court found the suspension was effected by the chairman after a Board resolution of 2nd June 2022, and preliminary investigations had implicated the petitioner. Clause 9.9 of the HR Manual permits suspension where evidence is incomplete and further investigation is required, and does not require a show cause letter before suspension. The allegations were directly connected to the petitioner's role as CEO, and she was not condemned unheard, having rushed to court before the disciplinary hearing.

p. 14
02

Whether the petitioner's constitutional rights were violated

Holding

No; claim premature because disciplinary proceedings had not concluded

Reasoning

Having found the disciplinary proceedings proper and in consonance with the HR Manual, the law and rules of natural justice, the court held it premature to find constitutional violations since the proceedings had not run their full course.

p. 14
03

Whether the respondents are entitled to reliefs in the cross-petition

Holding

No; questions of unfitness and reimbursement of Kshs.26,623,521 left to the internal disciplinary process

Reasoning

The court held it was not its mandate to stop internal processes and that declaring the petitioner unfit to hold office or ordering reimbursement of alleged misappropriated funds would be premature on the material before it, leaving those determinations to the employer's disciplinary process.

p. 14

Legal principles established

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  • Courts intervene in internal disciplinary processes only where the process is flawed, to correct procedural anomalies, not to muzzle the employer's disciplinary control
  • The burden lies on the employee to prove on a balance of probability that the disciplinary process is tainted with procedural impropriety

Court orders

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

Authorities

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Legislation

  • Constitution of KenyaArticles 27, 28, 31, 41, 47, 162(2)(a), 165(5)
  • Mutunga Rules (Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules), 2013Rule 15
  • Employment and Labour Relations Court (Procedure) RulesRule 28(3)
  • Sacco HR Policy and Procedure ManualClauses 9.2(3), 9.4, 9.5, 9.8, 9.9, 9.10, 9.17, 10.0
  • Sacco By-LawsBy-law 53(a), 53(h)

Cases cited (16)

  • Republic v University of Nairobi Exparte Bargorret Victor Kiprop
    (2017) eKLR
  • Republic v Kirinyaga University College & 2 others Exparte Isaya Kamau Kagwima
    (2015) eKLR
  • Republic v Cabinet Secretary for Education & another; Jeremy Budi & 3 others (Interested Parties); Exparte Kenya University Staff Union
    (2019) eKLR
  • MTM v KIE Limited & another
    (2020) eKLR
  • Fredrick Sandu Amolo v Principal Namenga Mixed Day Secondary & 2 others
    (2014) eKLR
  • Narok County Government & another v Richard Bwogo Biriri & another
    (2015) eKLR
  • Daniel Kibet Mutai & 9 others v Attorney General
    (2019) eKLR
  • Philip Tirop Kitur v Attorney General
    (2018) eKLR
  • Peter O. Nyakundi & 68 others v Principal Secretary, State Department of Planning, Ministry of Devolution and Planning & another
    (2016) eKLR
  • Kenneth Nyaga Mwige v Austin Kiguta & 2 others
    (2015) eKLR
  • MWK & another v Attorney General & 3 others
    (2017) eKLR
  • Rosemary Waitherero Mburu v Kenya Airways Ltd
    (2020) eKLR
  • Abraham Gumba v Kenya Medical Supplies Authority
    (2017) eKLR
  • Geoffrey Muthinja Kabiru & 2 others v Samuel Munga Henry & 1756 others
    (2015) eKLR
  • Anarita Karimi Njeru v Republic
    (1979) eKLR
  • James Makura M'Abwa v Director of Public Prosecution
    (2020) eKLR
Jurisdiction invoked
Articles 162(2)(a) and 165(5) of the Constitution of Kenya, 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, "Mugo HSC v Mugo & 2 others (Petition E006 of 2022) [2024] KEELRC 2445 (KLR)", Case Analysis (2024). Petition E006 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2445/eng@2024-10-09

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