Gakuo v Bomet University College (Petition E008 of 2025) [2025] KEELRC 2282 (KLR)
The bottom line
#Kenyan employers can discipline and dismiss an employee facing criminal charges without waiting for the criminal case to end.
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 Petition is validly before the Court
- 2.Whether the Respondent erred by proceeding with the disciplinary proceedings and dismissing the Petitioner before the conclusion of the criminal proceedings against him
- 3.Whether the remedies sought are merited
Key legal issues
#Whether the Petition raised constitutional issues and was validly before the Court
The Petition was validly before the Court and raised identifiable constitutional issues; the constitutional avoidance submission carried little weight
The Court held the Constitution does not classify disputes into common and constitutional grievances. Rule 10(3) of the E&LRC (Procedure) Rules, 2024 allows enforcement of constitutional rights in any suit. The overriding objective of the Mutunga Rules is access to justice under Article 48, so parties are seldom turned away on the nature of their pleadings.
Whether the employer could discipline and dismiss the Petitioner while the criminal case was pending
Yes. The disciplinary and criminal processes are separate and independent; the employer need not await the criminal trial's outcome
The criminal process is a public process by the State under the criminal standard of proof; the disciplinary process is private, based on the employment contract and HR instruments, with the lower standard of genuine belief under Section 43 of the Employment Act. Double jeopardy applies only to criminal offences. Tying the disciplinary process to the criminal trial would deprive the employer of its managerial prerogative.
Whether premature suspension and the notice periods breached fair administrative action
No. The suspension before the 21 days lapsed caused no prejudice, as the Petitioner declined to respond to the allegations in any event
Clause 9.3.1(e) requires adequate time but no specific period. The Petitioner was availed adequate time and promptly stated he would not respond, invoking presumption of innocence. The only flaw was the indefinite suspension tied to the criminal case, attributed to inelegant communication, not a breach causing prejudice.
Whether the internal appeal complaint could be determined
The complaint was extraneous to the Petition as pleaded; the Court lacked material to review the internal appeal process
The Petitioner filed the Petition to stay the disciplinary proceedings. Once stay was not granted, he should have amended the Petition to address the new realities rather than raising new grievances occurring after presentation, for which the record was inadequate.
Legal principles established
#- The presumption of innocence in a criminal trial does not bar an employer from taking disciplinary action based on the same facts
- The double jeopardy rule applies to criminal offences, not to disciplinary or administrative proceedings
- The evidential threshold for termination is whether the employer genuinely believed the reasons for termination to exist, not proof beyond reasonable doubt
- Constitutional petitions are not turned away merely because the grievance could be framed under statute or contract
Court orders
#- 1.The Petition is declined.
- 2.No order on the costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 22 of the Constitution read with the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 and the Employment & Labour Relations Court (Procedure) Rules, 2024
Relief refused
#Conservatory order staying the disciplinary hearing
The disciplinary process had concluded; nothing remained to conserve
Declaration that the disciplinary proceedings arising from the criminal case were irregular, unprocedural, illegal and unconstitutional
The disciplinary and criminal processes are distinct; the Respondent followed due process
Declaration of violation of constitutional rights and of Section 6 of the Civil Procedure Act
Section 6 applies to proceedings pending in two courts between the same parties; the criminal case is between the Republic and the Petitioner
Order quashing the Respondent's decision to initiate and continue disciplinary proceedings
The Respondent properly exercised its disciplinary control and established valid reasons for summary dismissal
Costs
No order on the costs.
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.
It Is Ordered: a. The Petition is declined. b. No order on the costs.
That is the correct presumption in the criminal proceedings, but the Respondent was under no obligation to take no disciplinary action, based on the presumption of innocence, in the criminal trial.
double jeopardy rule strictly applies to criminal ofiences and not disciplinary proceedings or proceedings of an administrative nature.
The criminal process is a public process, initiated by the State, against criminal suspects. The disciplinary process is a private process, initiated by an Employer, against an Employee who is suspected of committing employment ofiences
There was no major departure from the standards of procedural fairness, prescribed under the Human Resource Manual, the Employment Act and the Constitution. Fair hearing was not compromised.
Persons approaching the Court have the discretion on the nature of the pleadings, and it hardly occurs that a party is turned away from accessing justice, on the ground that his dispute is a common grievance, rather than a constitutional grievance.
Issues in the judgment
#Paragraph numbering is duplicated (two paragraphs numbered 34) and contains OCR errors ('ofience' for 'offence', 'fiaw' for 'flaw', 'stafi' for 'staff')
The Petitioner's submission is referred to as Article 232[b] in one place though elsewhere pleaded as Article 236(b)
The case number of the Petition is not stated anywhere in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gakuo v Bomet University College (Petition E008 of 2025) [2025] KEELRC 2282 (KLR)", Case Analysis (2025). Petition (E&LRC Kericho) - not otherwise numbered in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2282/eng@2025-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.