AVIATION AND ALLIED WORKERS UNION V KENYA AIRWAYS LIMITED [2012] KEELRC 53 (KLR)
The bottom line
#Kenya's Industrial Court refused to stop Kenya Airways' disciplinary process, ruling employees must first use workplace procedures unless the process is unfair.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondent as an employer could make an administrative disciplinary code
- 2.Whether the court has jurisdiction to intervene in a disciplinary procedure instituted but pending conclusion by the employer, and if yes, what would be the principles governing such intervention
- 3.Whether the court should issue an interim order stopping disciplinary process by the respondent against the grievant pending the hearing and determination of this cause
Key legal issues
#Validity of a unilaterally made administrative disciplinary code
The employer was entitled to issue disciplinary handling procedures for its unionisable staff
The recognition agreement incorporated staff rules, notices and standing instructions. The recognition and collective agreements did not themselves provide a disciplinary procedure or institutional framework, so the employer's disciplinary handling procedures were consistent with the agreements and bound the parties and the grievant.
Jurisdiction to intervene in a pending disciplinary process
The court has jurisdiction over disputes relating to pending administrative disciplinary actions
Article 165(5) establishes the court for employment and labour relations disputes and section 12 of the Employment Act, 2007 confers jurisdiction, including power under section 12(3)(i) to make interim preservation orders including injunctions in urgent cases. Such orders do not oust the court's competence or create bias in future related disputes.
Whether the threshold for interim intervention was met
It was not; the application was dismissed
The dispute whether the misconduct was lateness or absenteeism, and arguments about sufficiency of time to respond, were matters properly ventilated before the disciplinary panel where the claimant is represented. Disputed characterisation of the misconduct did not meet the threshold for stopping the process in the interim.
Legal principles established
#- The court may intervene in a pending administrative disciplinary process where it offends natural justice, breaches agreed or prescribed standards, or would result in manifest injustice, and will not intervene where internal remedies exist and have not been exhausted
- An employer is entitled, within a recognition agreement, to unilaterally issue staff rules and disciplinary procedures binding on unionisable staff provided they are not inconsistent with the applicable agreement, statute or the Constitution
- Making preservative orders in a pending disciplinary process does not make the court part of the process or biased in later related disputes
Court orders
#- 1.The grievant shall remain in the employment and duty of the respondent until the conclusion of the disciplinary process occasioning the commencement of this cause unless otherwise lawfully disciplined on account of substantially different and proven misconduct
- 2.The application dated February 29, 2012 is dismissed
- 3.Parties to bear their own costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 165(5) of the Constitution; section 12 of the Employment Act, 2007
Relief refused
#Interim order suspending the final warning letter dated January 9, 2012 and stopping the disciplinary process pending hearing and determination of the cause
The claimant failed to establish the threshold for court intervention in a pending disciplinary process
Costs
Parties to bear their own costs of the application
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.
The intervention in disciplinary process by employers will be entertained by the court rarely and in clear cases where the process is likely to result into unfair imposition of a punishment against the employee.
The court will normally not intervene if it is established that there exist mechanisms between the employer and the employee such as appeal or revision or review that the employee could invoke internally to remedy the dissatisfaction
The grievant shall remain in the employment and duty of the respondent until the conclusion of the disciplinary process occasioning the commencement of this cause unless otherwise lawfully disciplined on account of substantially different and proven misconduct.
The application dated February 29, 2012 is dismissed.
Parties to bear their own costs of the application.
Issues in the judgment
#The judgment refers to 'section 12 of the Employment Act, 2007' for jurisdiction while the application was brought under the Industrial Court Act; the reference to section 12(3)(i) appears intended for the Industrial Court Act
The respondent's reference to 'ILO Convention No. 153' is unverified; the numbering may be misstated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Bwanga v Anti Counterfeit Authority & 4 others (Employment and Labour Relations Petition E037 of 2024) [2025] KEELRC 396 (KLR)[2025] KEELRC 396 (KLR)14 Feb 2025
Cite this brief
#Cite this brief
Caselaw, "AVIATION AND ALLIED WORKERS UNION V KENYA AIRWAYS LIMITED [2012] KEELRC 53 (KLR)", Case Analysis (2012). Cause No. 48 of 2012 (Notice of Motion dated February 29, 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/53/eng@2012-08-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.