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ELRCDismissedNot stated in the judgment· [2025] KEELRC 699 (KLR)

Ogutu v Kenya Export Promotion and Branding Agency (Cause E551 of 2024) [2025] KEELRC 699 (KLR)

Employment and Labour Relations Court
6 March 2025
3,873 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court in Kenya confirmed that an employer can discipline and even dismiss an employee while a related court case is still pending.

What this practically means

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Executive summary

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The Claimant, an employee of the Respondent, filed a Memorandum of Claim dated 19th July 2024 challenging the downgrading of her job grade and seeking declarations that her right to fair labour practice had been violated, together with back pay and compensation. By an application dated 4th October 2024, she sought interim orders stopping a disciplinary process initiated through a show cause letter dated 25th September 2024, restraining retaliatory action, and preserving her employment pending determination of the suit. Before the application was heard, the Respondent conducted a disciplinary hearing on 22nd October 2024, which the Claimant did not attend, and terminated her employment. The Respondent argued the application was overtaken by events and that the disciplinary process was legitimate and distinct from court proceedings. The court held that although the application had been filed under Order 51 rule 1 of the Civil Procedure Rules, provisions inapplicable to the ELRC, it would consider it on its merits under article 159 of the Constitution. It found that the prayers were overtaken by events since the disciplinary process had concluded and the employment terminated, and that the court could not set aside the termination absent an amendment to the pleadings. On the merits, the court applied the principle of judicial restraint in employer disciplinary processes, holding that a pending court case does not bar an employer from conducting a disciplinary process, and that the Claimant had not demonstrated a breach of law or likely grave injustice. The show cause letter disclosed actionable workplace grievances unrelated to the litigation, defeating the retaliation claim. The application was dismissed, with costs to abide the outcome of the suit.

Key legal issues

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01

Competence of application filed under wrong provisions

Holding

Although the application invoked Order 51 rule 1 of the Civil Procedure Rules, which do not apply to the ELRC, the court declined to strike it out and considered it on its merits under article 159.

Reasoning

The court noted that ELRC practice is governed by the ELRC (Procedure) Rules, 2024, and that the Civil Procedure Act and Rules do not apply unless permitted. Citing Inderjit Singh Saimbhi, an application under wrong provisions is incompetent, but courts have saved such motions under article 159, so the court heard the application on the merits.

p. 5
02

Effect of termination on pending interlocutory relief

Holding

The termination of the Claimant's employment on 22nd October 2024 rendered the prayers to stop the disciplinary process and preserve employment moot; absent amendment, the court could not grant the orders sought.

Reasoning

The disciplinary process was concluded and the employment relation terminated before the application was heard. The pleadings were never amended to reflect the new status or seek reversal of the termination, so granting the orders would be futile. The court could not set aside the termination without a formal request through amendment.

p. 8
03

Judicial restraint in employer disciplinary processes

Holding

The employer enjoys the prerogative to manage the workplace, and courts will interfere with internal disciplinary processes only in exceptional circumstances.

Reasoning

Relying on Ndinda v Ethics and Anti-Corruption Commission, the court held that courts exercise restraint and intervene only where the process is flawed and grave injustice would result. The show cause letter disclosed actionable workplace grievances, and the process as initiated complied with section 41 of the Employment Act.

p. 6
04

Whether the disciplinary process was retaliatory

Holding

The court found no evidence supporting the Claimant's claim that the disciplinary process was retaliation for filing the suit.

Reasoning

The show cause letter set out specific allegations of absconding duty, insubordination and use of abusive language spanning 2020 to September 2024. It did not mention or fault the Claimant for instituting the court proceedings, so the retaliation contention was unsupported by evidence.

p. 7
05

Employer's entitlement to proceed where employee fails to attend

Holding

Absent a court order stopping the proceedings, the employer was entitled to proceed with the hearing even though the matter was pending in court.

Reasoning

Workplace disciplinary processes are distinct from court proceedings. The Respondent was under no obligation to adjourn solely because the matter was in court. Whether the Claimant was genuinely unwell on the hearing date was a contested factual matter only resolvable at full trial.

p. 7

Legal principles established

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  • A pending court case does not, of itself, bar an employer from conducting a disciplinary process against an employee.
  • Courts will only intervene in an employer's disciplinary process where the employee demonstrates a breach of law or the agreement likely to occasion grave injustice.
  • Applications instituted under the wrong provisions of law may nonetheless be saved under article 159 of the Constitution.

Court orders

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  1. 1.The application dated 4th October 2024 was declined
  2. 2.Costs of the application to abide the outcome of the suit
Jurisdiction invoked
Article 41 of the Constitution of Kenya, 2010 and section 12 of the Employment and Labour Relations Court Act

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, "Ogutu v Kenya Export Promotion and Branding Agency (Cause E551 of 2024) [2025] KEELRC 699 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/699/eng@2025-03-06

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