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ELRCPartially AllowedJudicial Review application; substantive Notice of Motion dated 3rd September 2024 (Notice of Motion dated 2nd October 2024 referenced)

Republic v African Banking Corporation Limited; Oluchina (Exparte Applicant) (Judicial Review Application E053 of 2024) [2025] KEELRC 825 (KLR)

Employment and Labour Relations Court
13 March 2025
4,917 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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A Kenyan court quashed a bank's disciplinary warning because the bank skipped its own HR procedures and punished a minor offence too harshly.

What this practically means

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Executive summary

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The Ex-Parte Applicant, a Dealer in the Treasury Department of African Banking Corporation since November 2018, moved the Court by Notice of Motion seeking judicial review orders of certiorari to quash disciplinary proceedings and a First Warning Letter dated 27th August 2024, a prohibition against further adverse action, a declaration that the decision was unlawful and procedurally improper, and costs. The complaint arose from two colleagues' allegations that the Applicant used abusive language. The Applicant argued the Respondent breached its own Human Resource Manual by skipping the mandatory informal supervisor-led procedure, failing to conduct an independent investigation, concluding the process outside the 60-day limit, and imposing a First Warning Letter although its own policy prescribes a verbal caution or reprimand for minor offences. The Respondent countered that the process was fair and proportionate, that the Applicant had not exhausted internal remedies under section 9(2) of the Fair Administrative Actions Act, and that judicial review does not lie over a private employer's disciplinary action, citing extensive authorities on managerial prerogative. Reviewing the HR Manual's clauses 15.4 and 15.5, the court found as true that the counselling and preliminary investigation stage was omitted and that the punishment was excessive and not provided for in the manual, breaching section 7(2)(b), (c) and (d) of the Fair Administrative Actions Act. The court allowed the application, quashed the disciplinary proceedings and the First Warning Letter, barred further disciplinary action based on the impugned proceedings, declared the decision unlawful and procedurally unfair, and ordered the Respondent to pay 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 proceedings against the Applicant met the legal threshold and adhered to the Respondent's Human Resource Policy
  2. 2.Whether the Court should interfere with an employer's right to discipline employees
  3. 3.Whether the suit meets the threshold for judicial review (whether the disciplinary action amounts to administrative action)
  4. 4.Who should bear the costs of the application

Key legal issues

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01

Whether the Respondent's failure to follow its own Human Resource Manual rendered the disciplinary process and the First Warning Letter unlawful

Holding

Yes. The informal disciplinary procedure for minor offences, including preliminary investigation and counselling by the supervisor, was omitted, and a First Warning Letter was issued although the prescribed sanction for a minor offence is a verbal caution or reprimand.

Reasoning

The court examined clauses 15.4 and 15.5 of the HR Manual, which prescribe counselling and an informal procedure for minor offences, with a verbal caution or reprimand as the sanction. The complaint was forwarded directly to HR without the mandatory supervisor-level investigation and counselling stage. The court found the punishment excessive and not provided for in the manual, amounting to breach of mandatory procedure under section 7(2)(b), (c) and (d) of the Fair Administrative Actions Act.

p. 9
02

Whether judicial review lies against a private employer's disciplinary process

Holding

The court found judicial review merited, holding the disciplinary process reviewable for procedural impropriety under the Fair Administrative Actions Act despite the Respondent's argument that employment disputes belong under the Employment Act.

Reasoning

The Respondent argued that disciplinary action by a private employer is not administrative action and that judicial review is inappropriate, relying on authorities including Municipal Council of Mombasa v Republic and Rebecca Ann Maina. The court did not expressly resolve this threshold question but proceeded to find that the Respondent breached the Fair Administrative Actions Act by failing to comply with its own mandatory procedures, concluding the judicial review was merited.

p. 10
03

Whether the punishment of a First Warning Letter was proportionate for a minor misconduct-level offence

Holding

No. The Respondent's own policy prescribes a verbal caution or reprimand for minor offences; a First Warning Letter was excessive and contrary to the policy.

Reasoning

The Respondent admitted the disciplinary committee found the Applicant guilty of a minor misconduct-level offence. Under clause 15.5 of the HR Manual the prescribed punishment is a verbal caution or reprimand. Issuing a First Warning Letter, the sanction for use of abusive language under clause 15.11 as urged by the Respondent, did not correspond to the classification the Respondent itself applied, making the sanction unwarranted.

p. 9

Legal principles established

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  • An employer is bound by its own disciplinary policies and procedures; failure to follow mandatory internal procedures renders disciplinary action reviewable and unlawful.
  • A court or tribunal may review an administrative action where a mandatory and material procedure prescribed by an empowering provision was not complied with, where the action was procedurally unfair, or where it was materially influenced by an error of law.

Court orders

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  1. 1.Order of certiorari quashing the Respondent's disciplinary proceedings and the resulting First Warning Letter dated 27th August 2024
  2. 2.Order that no further disciplinary action be taken against the Applicant based on the impugned proceedings, declaring the decision unlawful and procedurally unfair and improper
  3. 3.Respondents to pay the costs of the application

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 162 of the Constitution of Kenya, 2010 and Section 12 of the Employment and Labour Relations Court Act; judicial review under Section 7 of the Fair Administrative Actions Act

Relief refused

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Prohibition order restraining further adverse action framed as distinct prayer

Subsumed in the order that no further disciplinary action be taken based on the impugned proceedings; the court granted this in substance rather than as a separate formal prohibition order.

p. 10

Costs

Respondents will pay costs of this application.

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.

I allow the prayers sought and grant orders of certiorari quashing the respondent’s disciplinary proceedings and the resulting first warning letter dated 27th August 2024.
p. 10Final orders - certiorari
I also make an order that no further disciplinary action be taken against the applicant based on the impugned proceedings declaring the decision unlawful and procedurally unfair and improper.
p. 10Final orders - declaration and bar on further action
It is indeed true that the respondent failed to adhere to their own HR Manuel. It is also true that the respondents acted hastily and gave the applicant an excessive punishment not provided for in their own HR manual.
p. 9Employer bound by own disciplinary policy
In the case of the applicant, it is true that this important stage was omitted and after the complaint against him by a colleague, the applicant’s supervisor referred the matter to the HR manager.
p. 9Omission of mandatory informal procedure
Respondents will pay costs of this application.
p. 10Costs

Issues in the judgment

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minor

Conflicting dates for the Notice of Motion application: the judgment opens by describing 'an application dated 2nd October 2024' but later refers to 'the Notice of Motion application dated 3rd September 2024'.

minor

Conflicting dates for the show cause letter: paragraph 2 states it was dated 27th February 2024 regarding alleged conduct on 17th February 2024, while the submissions state 'the Respondent issued a show cause letter dated 17th February 2024'.

minor

The court's decision paragraph states 'I allow the prayers sought' but the final orders do not expressly address the separate prayer for a prohibition order as a distinct order.

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, "Republic v African Banking Corporation Limited; Oluchina (Exparte Applicant) (Judicial Review Application E053 of 2024) [2025] KEELRC 825 (KLR)", Case Analysis (2025). Judicial Review application; substantive Notice of Motion dated 3rd September 2024 (Notice of Motion dated 2nd October 2024 referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/825/eng@2025-03-13

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