Kirande v Council of Legal Education (Petition E223 of 2023) [2024] KEELRC 1278 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the disciplinary hearing conducted outside the 6-month period prescribed in the respondent's HR manual was illegal
- 2.Whether the petitioner waived or condoned the breach of the 6-month timelines
- 3.Whether the respondent violated the petitioner's rights under Articles 26, 35, 47 and 50 of the Constitution
- 4.Whether the petitioner was supplied with relevant documents for the disciplinary hearing
- 5.Whether the petitioner was entitled to reinstatement, withheld dues, compensatory damages and costs
Key legal issues
#Waiver of the 6-month disciplinary timeline in the HR manual
The court held that although the 6-month period lapsed, the petitioner condoned and waived the timeline safeguard
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.
Overtaking of the petition by the summary dismissal
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
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.
Alleged violation of Articles 26, 35, 47 and 50
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
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.
Legal principles established
#- 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
#- 1.Dismissal of the petition
- 2.Each party to bear own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
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
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
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
#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.
As urged for the respondent, the petition appears overtaken by the ensuing summary dismissal.
In conclusion the petition is hereby dismissed with orders each party to bear own costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.