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ELRCDismissedPetition dated July 29, 2022· [2023] KEELRC 2486 (KLR)

Oindo v National Land Commission (Employment and Labour Relations Petition E137 of 2022) [2023] KEELRC 2486 (KLR)

Employment and Labour Relations Court
11 October 2023
ANAbuodha Jorum Nelson
1,675 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed employers can run disciplinary hearings alongside criminal charges against the same employee.

What this practically means

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Executive summary

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The petitioner, a Deputy Director-Valuation employed by the respondent on permanent and pensionable terms, was suspended on half salary on May 2, 2019 pursuant to section 62 of the anti-corruption legislation pending the outcome of Milimani Anti-Corruption Case 9 of 2019. He later received a Notice to Show Cause dated February 17, 2022, requiring him to answer to gross misconduct allegations connected to the criminal charges. He petitioned for certiorari to quash the notice and prohibition against the intended disciplinary process, arguing the disciplinary inquiry was sub-judice, breached Articles 41, 47 and 50, and that bail terms barred him from interacting with commission staff or visiting its premises. The respondent relied on its code of conduct and NLC/HR Manual, which gave it discretion to finalize cases administratively separate from court processes. The court framed a single issue: whether the notice should be quashed and the disciplinary action prohibited. Applying the reasonable employer test and the distinction between criminal and internal disciplinary proceedings, the court held the two processes are independent, the standard of proof differing, and that suspension was statutory and expressed to abide the criminal outcome. The court found the respondent followed the law, declined to interfere with its internal disciplinary processes, dismissed the petition with costs, noting the petitioner would have an opportunity to be heard at the disciplinary hearing.

Key legal issues

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01

Whether the court should quash the Notice to Show Cause and prohibit the intended disciplinary action

Holding

The petition was dismissed; the respondent lawfully initiated disciplinary proceedings notwithstanding pending criminal charges

Reasoning

The court held that criminal proceedings and internal disciplinary processes are independent and may run concurrently since the standard of proof differs (balance of probability vs beyond reasonable doubt). The respondent was guided by its code of conduct giving it discretion to finalize cases administratively. The petitioner's suspension was statutory under section 62 of the EACC Act, abiding the criminal outcome, and he would have an opportunity to be heard at the disciplinary hearing.

p. 4
02

Reasonableness of the employer's decision to initiate disciplinary process

Holding

It was reasonable for the respondent to initiate the disciplinary process given the petitioner's criminal charges for economic crime amounting to gross misconduct

Reasoning

Applying the reasonable employer test, the court found that the petitioner's involvement in economic crime activities and being charged on the same charges made the initiation of disciplinary process reasonable. His actions amounted to gross misconduct under section 44(4) of the Employment Act and the code of conduct, embarrassing the respondent and amounting to negligence and dishonesty.

p. 3

Legal principles established

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  • Internal disciplinary proceedings of an employer and criminal proceedings are distinct and may run concurrently because the standard of proof differs
  • A reasonable employer test applies to a decision to initiate disciplinary process
  • A show-cause letter marks the start of the formal disciplinary procedure and must be given before the disciplinary hearing

Court orders

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  1. 1.The petitioner's Petition is dismissed with costs
  2. 2.It is so ordered
Jurisdiction invoked
Articles 41, 47 and 50 of the Constitution (fair labour practices, fair administrative action, right to be heard) invoked in an employment petition

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, "Oindo v National Land Commission (Employment and Labour Relations Petition E137 of 2022) [2023] KEELRC 2486 (KLR)", Case Analysis (2023). Petition dated July 29, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2486/eng@2023-10-11

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