Chingosho, Chairman of the Afraa Disciplinary Committee & another v Indetie (Civil Appeal 162 of 2018) [2025] KECA 969 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that unfair disciplinary process doesn't automatically earn an employee reinstatement—courts must consider whether the working relationship can realistically continue.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether it was appropriate for the superior court to entertain the judicial review application
- 2.Whether the respondent's right to a fair administrative action was impeded
- 3.Whether the orders issued were appropriate
Key legal issues
#Whether judicial review was an appropriate mechanism for challenging a disciplinary process and dismissal in an employment dispute
Yes. Where a party pleads that fundamental rights (fair administrative action, fair hearing) were violated, constitutional judicial review is available; the leave decision granting exemption from exhausting internal remedies stood, not having been appealed.
The court traced the shift from common law judicial review to constitutional judicial review under Articles 22, 23 and 47 operationalised by the Fair Administrative Action Act. Relying on the Supreme Court's Dande decision, it held that where grievances are clothed as constitutional questions alleging rights violations, merit review may be required, and the dual approach depends on the pleadings and procedure adopted at inception. The trial judge's discretion to grant leave and exemption was correctly exercised and unappealed.
Whether the respondent's right to fair administrative action was impeded
Yes. The respondent communicated her apprehension of bias regarding the panel's composition, yet the appellants proceeded with the hearing; the court upheld the finding of unfairness.
The court applied Article 47 and section 41 of the Employment Act as interpreted in Barclays Bank of Kenya Ltd v Banking, Insurance & Finance Union, which requires notice, explanation and hearing of representations - procedural fairness with a long pedigree in natural justice. The respondent raised the objection to the panel's composition, but the appellants continued with the hearing anyway. The court agreed with the superior court that her right to fair administrative action was impeded.
Whether quashing the dismissal and thereby reinstating the respondent was an appropriate remedy
No. Although the disciplinary process was unfair, the grounds for termination were justified, the respondent contributed to her dismissal under section 49(4) of the Employment Act, and trust had broken down; reinstatement was not justified.
Section 11 of the Fair Administrative Action Act permits any just and equitable order. The court relied on Kenya Airways Ltd v Aviation & Allied Workers Union and Kenya Power & Lighting Co Ltd v Aggrey Lukorito Wasike to hold that reinstatement must be a rarity ordered only in exceptional circumstances, which the learned judge failed to articulate. Given the respondent's contribution to her termination and the breakdown of trust, more efficacious remedies existed. The appeal was allowed on this narrow ground.
Legal principles established
#- The entrenchment of judicial review in the Constitution elevated it to a substantive and justiciable right; it is no longer a strict administrative law remedy where a person pleads violation of fundamental rights, and whether merit review is required depends on the pleadings and procedure adopted.
- Reinstatement is not an automatic remedy in wrongful dismissal cases; it is a rarity to be ordered only in exceptional circumstances, and a judge must set out the exceptional circumstances before ordering reinstatement.
- Where the grounds for termination are justified but only the process was flawed, and trust between employer and employee has irretrievably broken down, reinstatement is not the appropriate remedy.
- An employer's failure to address a communicated apprehension of bias and continuing with a disciplinary hearing impedes the employee's right to fair administrative action under Article 47 and section 41 of the Employment Act.
Court orders
#- 1.The appeal is allowed on the narrow ground that the remedy of reinstatement was unjustified
- 2.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court, Nairobi
- Jurisdiction invoked
- First appeal under Rule 31(1)(a) of the Court of Appeal Rules, 2022, following the ELRC's judicial review jurisdiction under Article 23(3)(f) of the Constitution as read with Article 47 and the Fair Administrative Action Act
Relief refused
#Setting aside the learned judge's finding that the respondent was subjected to an unfair disciplinary process
The court agreed with the superior court that the respondent's right to fair administrative action was impeded; the appeal succeeded only on the remedy
Any substitute remedy in favour of the respondent
The respondent had moved on with her life, relocated to the United States, and her fixed-term contract had expired and the position filled
Costs
Each party shall bear their own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Consequently, this appeal is allowed on the narrow ground that the remedy of reinstatement was unjustified. Each party shall bear their own costs.
Reinstatement of an employee is not an automatic remedy in wrongful dismissal cases. It is a rarity to be ordered in exceptional circumstances rather than a common place pronouncement.
From the pronouncement of the Supreme Court, the entrenchment of judicial review in the Constitution elevated it to a substantive and justiciable right under the Constitution.
A court cannot issue judicial review orders under the Constitution if it limits itself to the traditional review known to common law and codified in order 53 of the Civil Procedure Rules.
The respondent was apprehensive that the hearing would not be fair, she communicated this to the appellants, but the appellants continued with the hearing anyway. We find that the respondent's right to fair administrative action was impeded.
Although the learned Judge had correctly concluded that the respondent had been subjected to an unfair disciplinary process, issuing orders quashing the disciplinary proceedings and dismissal letter, and thereby reinstating the respondent was not the appropriate remedy in the circumstances of this case.
On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses
Issues in the judgment
#The judgment cites 'Kenya Airways Limited v Aviation & Allied Workers Union Kenya [2014] eKLR' but the quoted passage discusses 'KRA' (Kenya Revenue Authority), suggesting the quoted text may have been drawn from a different decision
The respondent's case name is given as 'Sucha Investment Limited' in one place and 'Suchan Investment Limited' in another within the same judgment
Article 47 and Article 50(1) are quoted together but the numbering is garbled, with '50.' appearing after the quoted material
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Wasamu v Judicial Service Commission (Cause E077 of 2024) [2025] KEELRC 2184 (KLR)[2025] KEELRC 2184 (KLR)24 Jul 2025
- Wasamu v Judicial Service Commission (Cause E077 of 2024) [2025] KEELRC 2184 (KLR)[2025] KEELRC 2184 (KLR)24 Jul 2025applied
Cite this brief
#Cite this brief
Caselaw, "Chingosho, Chairman of the Afraa Disciplinary Committee & another v Indetie (Civil Appeal 162 of 2018) [2025] KECA 969 (KLR)", Case Analysis (2025). Court of Appeal at Nairobi (memorandum of appeal dated 18th May 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/969/eng@2025-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.