Ogutu v Kenya Export Promotion and Branding Agency (Cause E551 of 2024) [2025] KEELRC 699 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Competence of application filed under wrong provisions
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.
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.
Effect of termination on pending interlocutory relief
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.
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.
Judicial restraint in employer disciplinary processes
The employer enjoys the prerogative to manage the workplace, and courts will interfere with internal disciplinary processes only in exceptional circumstances.
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.
Whether the disciplinary process was retaliatory
The court found no evidence supporting the Claimant's claim that the disciplinary process was retaliation for filing the suit.
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.
Employer's entitlement to proceed where employee fails to attend
Absent a court order stopping the proceedings, the employer was entitled to proceed with the hearing even though the matter was pending in court.
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.
Legal principles established
#- 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
#- 1.The application dated 4th October 2024 was declined
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.