Oindo v National Land Commission (Employment and Labour Relations Petition E137 of 2022) [2023] KEELRC 2486 (KLR)
The bottom line
#Kenya's Employment Court confirmed employers can run disciplinary hearings alongside criminal charges against the same employee.
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 Court should quash the Notice to Show Cause dated 17th February, 2022 and prohibit the intended disciplinary action against the petitioner.
Key legal issues
#Whether the court should quash the Notice to Show Cause and prohibit the intended disciplinary action
The petition was dismissed; the respondent lawfully initiated disciplinary proceedings notwithstanding pending criminal charges
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.
Reasonableness of the employer's decision to initiate disciplinary process
It was reasonable for the respondent to initiate the disciplinary process given the petitioner's criminal charges for economic crime amounting to gross misconduct
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.
Legal principles established
#- 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
#- 1.The petitioner's Petition is dismissed with costs
- 2.It is so ordered
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- 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
Relief refused
#Order of certiorari to quash the Notice to Show Cause dated 17th February, 2022
The respondent followed the law in initiating the disciplinary process; the criminal and disciplinary processes are independent
Order of prohibiting the respondent from taking disciplinary action on matters in the show cause letter or the criminal case
No nexus between the criminal case and the internal disciplinary mechanism; standards of proof differ; suspension was statutory
Costs
The petitioner’s Petition is found without merit and is hereby dismissed with cost.
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.
In conclusion the petitioner’s Petition is found without merit and is hereby dismissed with cost.
It is so ordered
There was no nexus between the criminal case and the respondents’ internal disciplinary mechanism since the standard of proof in disciplinary action was difierent from that of a court of law which was beyond reasonable doubt.
The court is however concerned over indefinite suspensions but in this particular case suspension was statutory and was expressed to abide the outcome of the criminal prosecution.
Issues in the judgment
#Petitioner's role is referred to inconsistently - described as 'petitioner' throughout but once as 'Claimant'
The court refers to 'section 62 of the EACC Act' and 'section 62 of the Anticorruption and Economic Crimes Act' interchangeably
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.