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ELRCDismissedPetition dated 15.12.2023

Kirande v Council of Legal Education (Petition E223 of 2023) [2024] KEELRC 1278 (KLR)

Employment and Labour Relations Court
24 May 2024
1,534 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed an employee's challenge to a delayed disciplinary hearing, ruling he had waived the six-month timeline by participating without objecting.

What this practically means

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Executive summary

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The petitioner, formerly a senior procurement officer and later principal supply chain management officer at the Council of Legal Education, filed a petition challenging a disciplinary process over loss of toners. He sought declarations that conducting the hearing beyond the six-month period prescribed in the respondent's HR manual was illegal, certiorari to quash the decision to commence or continue the disciplinary hearing, declarations of violations of Articles 26, 35, 47 and 50 of the Constitution, reinstatement by mandamus, payment of withheld dues, compensatory damages and costs on an indemnity basis. He was issued a show cause notice on 06.09.2022, interdicted on 20.03.2023, and invited to a disciplinary hearing that was adjourned and rescheduled several times before concluding on 20.12.2023, resulting in summary dismissal on 29.12.2023 for gross misconduct involving a loss of Kshs 1,384,150. The respondent, through the acting Secretary and CEO's affidavit, maintained that the petitioner was supplied with documents, was heard with his representative, and was properly dismissed with a right of appeal. The court held that although the six-month period lapsed, the petitioner had condoned and waived that procedural safeguard; that he did not challenge the reasons for his dismissal and participated in the process; and that the petition, not amended to attack the summary dismissal and unaccompanied by any appeal, was overtaken by the dismissal. The court found no justification for the reliefs sought, dismissed the petition, and ordered each party to bear its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the disciplinary hearing conducted outside the 6-month period prescribed in the respondent's HR manual was illegal
  2. 2.Whether the petitioner waived or condoned the breach of the 6-month timelines
  3. 3.Whether the respondent violated the petitioner's rights under Articles 26, 35, 47 and 50 of the Constitution
  4. 4.Whether the petitioner was supplied with relevant documents for the disciplinary hearing
  5. 5.Whether the petitioner was entitled to reinstatement, withheld dues, compensatory damages and costs

Key legal issues

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01

Waiver of the 6-month disciplinary timeline in the HR manual

Holding

The court held that although the 6-month period lapsed, the petitioner condoned and waived the timeline safeguard

Reasoning

The HR manual required conclusion of disciplinary cases within six months of the show cause letter, and over 15 months had elapsed. However, the petitioner participated in hearings across multiple dates and raised the objection late; the court viewed that conduct as condonation of the delay, defeating the claim that the hearing was illegal.

p. 4
02

Overtaking of the petition by the summary dismissal

Holding

The petition, which sought to stop a disciplinary process, was overtaken by the summary dismissal of 29.12.2023, which the petitioner neither challenged by amendment nor by the available appeal

Reasoning

The petition was filed while the disciplinary process was pending and sought to halt it. The process concluded in summary dismissal on 29.12.2023. The petitioner did not amend the petition to attack the dismissal, did not rebut the claim he was supplied documents, and did not exercise his right of appeal, so the reliefs could not be sustained.

p. 4
03

Alleged violation of Articles 26, 35, 47 and 50

Holding

No violation was established; the petitioner was given a chance to participate in the disciplinary process and did not challenge the reasons for his dismissal

Reasoning

The court found the petitioner was afforded an opportunity to defend himself with his representative at the hearing held on 20.12.2023 and received the minutes. He did not rebut the respondent's evidence that documents were supplied, and did not contest the substantive reasons for dismissal, so no fair-hearing or other constitutional breach was made out.

p. 4

Legal principles established

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  • A contractual or procedural safeguard prescribing disciplinary timelines may be waived by condonation by the affected employee
  • A petition not amended to challenge a summary dismissal that issued during proceedings is overtaken by events where the dismissal reasons are not challenged

Court orders

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  1. 1.Dismissal of the petition
  2. 2.Each party to bear own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Constitution of Kenya, Articles 26, 35, 47 and 50 invoked in the petition; Employment and Labour Relations Court jurisdiction over employment disputes

Relief refused

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Declaration that the disciplinary hearing outside 6 months was illegal

The petitioner condoned and waived the breach of the 6-month contractual and procedural safeguard

p. 4

Certiorari to quash the decision to commence/continue the disciplinary hearing

The petitioner participated in the disciplinary process and did not challenge or appeal the ensuing summary dismissal

p. 4

Declarations on Articles 26, 35, 47 and 50, reinstatement, withheld dues and compensatory damages

The petitioner failed to establish justification for the reliefs; he did not challenge the reasons for dismissal and was given a chance to participate in the process

p. 4

Costs

Each party to bear own costs, taking into account the period of time that lapsed prior to conclusion of the disciplinary case.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

While the 6 months for determining the disciplinary case lapsed, the petitioner appears to have condoned the same. That contractual and procedural safeguard in the opinion of Court appears to have been waived by the petitioner.
p. 4Waiver of HR manual disciplinary timelines
As urged for the respondent, the petition appears overtaken by the ensuing summary dismissal.
p. 4Petition overtaken by events
In conclusion the petition is hereby dismissed with orders each party to bear own costs.
p. 4Final orders / disposition

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, "Kirande v Council of Legal Education (Petition E223 of 2023) [2024] KEELRC 1278 (KLR)", Case Analysis (2024). Petition dated 15.12.2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1278/eng@2024-05-24

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