https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2294

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT *&* LABOUR RELATIONS** **COURT OF KENYA AT KISUMU** **PETITION NO. E017 OF 2026** IN THE MATTER OF: ARTICLES 19(1), (2), 20(1), (2), (3) *&* (4), 21(1), 22(1), (2), 23, 27(1), (2), 28, 35, 41, 4, 50(1), 159, 258 *&* 259 OF THE CONSTITUTION OF KENYA, 2010. **AND** IN THE MATTER OF: ALLEGED CONTRAVENTIONS OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 19(1), (2), 20(1), (2), (3) *&* (4), 21(1), 22(1), (2), 23, 27(1), (2), 28, 35, 41, 4, 50(1), 159, 258 *&* 259 OF THE CONSTITUTION OF KENYA, 2010 **AND** IN THE MATTER OF RULES 3, 4, 8, 10, 11, 13, 14, 15, 16, 20 AND 21 OF THE CONSTITUTION OF KENYA, 2010. **AND** IN THE MATTER OF FAIR ADMINISTRATIVE ACTIONS ACT **BETWEEN** SIMEON KIPROTICH RUGUTT.…………………………….**PETITIONER** **VERSUS** FRANCIS MIANO, AG. GROUP CHIEF EXECUTIVE OFFICER KENYA TEA DEVELOPMENT AGENCY HOLDINGS LIMITED…**1ST RESPONDENT** KENYA TEA DEVELOPMENT AGENCY HOLDINGS LIMITED………………..…….**2ND RESPONDENT** THE BOARD OF DIRECTORS OF KENYA TEA DEVELOPMENT AGENCY HOLDINGS LIMITED....**3RD RESPONDENT** **RULING** 1. The Petitioner vide an application dated 25th May 2026, seeks to stay the notice to show cause dated 11th February 2026, suspend the Board directives communicated through the letter dated 8th May 2026 and internal memo dated 20th May 2026, and restrain the Respondents from subjecting him to disciplinary proceedings, forensic audit, investigations, harassment, intimidation, or interference with his employment duties pending hearing and determination of the Petition. 2. The application is supported by the affidavit of Mr. Simeon Kiprotich Rugutt, who deposes that he is the Group Finance Director and an Executive Director of the 2nd Respondent, having served the company since January 2011. He states that the impugned disciplinary process was initiated maliciously and in retaliation for the petition challenging the 1st Respondent’s appointment, and that the allegations against him are baseless. He contends that the notice to show cause was issued by the Chairman of the 3rd Respondent, who was not his immediate or appropriate supervisor, contrary to the 2nd Respondent’s Human Resource Policies and Procedures Manual, hence process lacked legal and procedural validity. The Applicant further avers that he was on approved medical leave in India when he was directed to appear before the 3rd Respondent on 15th May 2026 in relation to an audit report, and that his request for extension of medical leave was declined without lawful reason while he was required to appear on 28th May 2026. He maintains that the audit report was finalized and presented to the Board without his input or comments, contrary to principles of procedural fairness and the *audi alteram partem* rule. He argues that the Respondents’ actions violate section 41 of the Employment Act and his constitutional rights to fair labour practices, fair administrative action, and a fair hearing under Articles 41, 47, and 50 of the Constitution. He contends that unless the Court intervenes, he faces the risk of unlawful disciplinary action or termination, thereby rendering the petition nugatory. 3. The Respondents oppose the application through the replying affidavit of Eng. Francis Miano, the Acting Group Chief Executive Officer of the 2nd Respondent. He contends that the application is misconceived, premature, and an abuse of the court process, as the notice to show cause had already been canvassed in an earlier interlocutory application and the audit queries form part of the ordinary management and oversight functions of the employer. The Respondents deny that the Petitioner was threatened with summary dismissal or subjected to any disciplinary hearing, and assert that no adverse decision has been made against him. According to the Respondents, the impugned steps are merely administrative measures consistent with Article 47 of the Constitution and the Fair Administrative Action Act, and the Petitioner was given reasonable opportunity to respond. The Respondents further contend that the application improperly seeks to shield the Petitioner from accountability and would have the effect of usurping the employer’s managerial prerogative to supervise, investigate, and hold employees accountable through its internal human resource mechanisms. They argue that the Court should refrain from interfering with internal disciplinary processes unless there is clear evidence of unconstitutionality or procedural impropriety, which, in their view, has not been demonstrated. They therefore urge the Court to set aside the interim orders previously granted and dismiss the application with costs. Petitioner’s Submissions 1. On entitlement to conservatory orders, the Petitioner submits that the manner in which the Respondents issued the notice to show cause dated 11th February 2026 and the Board directive dated 8th May 2026 together with the internal memo dated 20th May 2026, threaten his constitutional and employment rights and therefore justify the grant of conservatory and injunctive relief. He relies on Article 23(3) of the Constitution, which empowers the Court to grant appropriate relief, including injunctions and conservatory orders, where a right or fundamental freedom has been denied, violated, infringed, or threatened. 2. The Petitioner submits that he has met the threshold for conservatory relief as articulated in **Gatirau Peter Munya *v* Dickson Mwenda Kithinji & 2 Others, [2014] eKLR**, where the Supreme Court held that conservatory orders should be granted on the inherent merits of the case, taking into account constitutional values, public interest, and the need to preserve the subject matter of the dispute. He further relies on **Nubian Rights Forum *&* 2 others *v* Attorney General *&* 6 others; Child Welfare Society *&* 8 others (Interested Parties); Centre for Intellectual Property *&* Information Technology (Proposed Amicus Curiae), Petition Nos. 56, 58 *&* 59 of 2019 [2019] eKLR**, in which the Court restated that an applicant must demonstrate a *prima facie* case with a likelihood of success, a real danger of prejudice if the orders are withheld, and that the orders are necessary to preserve the substratum of the petition and uphold constitutional values. 3. The Petitioner submits that the disciplinary process was commenced during the pendency of the petition and was actuated by malice, retaliation, and bad faith. He asserts that the notice to show cause was issued by the Chairman of the 3rd Respondent, contrary to sections 6.5.1 and 6.5.3 of the 2nd Respondent’s Human Resource Policies and Procedures Manual, which require that such action be initiated by the employee’s immediate or appropriate supervisor and be preceded by a warning letter. He therefore contends that the disciplinary process is null and void *ab initio*. The Petitioner further submits that the audit process was equally flawed because he was required to appear before the 3rd Respondent while on approved medical leave, and the audit report was finalized without affording him an opportunity to respond, contrary to the principles of natural justice and section 41 of the Employment Act. He relies on **Ndinda *v* Ethics and Anti-Corruption Commission [2022] KEELRC 4088 (KLR)**, where the Court held that it may intervene in internal disciplinary processes that are procedurally irregular, unlawful, or actuated by malice, and on **Anne Wambui Kamuiru *v* Kenya Airways Limited [2015] eKLR**, which affirms that the Court may intervene where an employer’s disciplinary process is fundamentally flawed. 4. On the audit process, the Petitioner relies on **Ahmed Issack Hassan *v* Auditor General, [2015] KEHC 4712 (KLR)**, where the Court held that a person adversely mentioned in an audit report without being heard is entitled to relief for violation of the *audi alteram partem* rule and Articles 25(c) and 50 of the Constitution. He contends that the Respondents breached his right to be heard by requiring him to answer audit findings that had already been finalized without his participation. The Petitioner therefore submits that he has established a prima facie case, that he faces the real risk of unlawful disciplinary action or termination, and that unless the impugned disciplinary and audit processes are stayed, the petition will be rendered nugatory and the constitutional values protected under Articles 22, 23, 27, 28, 35, 41, and 50 of the Constitution will be undermined. 5. On costs the Petitioner submits that having satisfied the requirements for the grant of conservatory and injunctive relief, the application dated 25th May 2026 should be allowed with costs. Respondentts’ Submissions. 1. The Respondents submit that the application is premature and offends the doctrine of exhaustion because the Petitioner failed to invoke the grievance and disciplinary mechanisms provided under the 2nd Respondent’s Human Resource Policy Manual before approaching the Court. They contend that the internal procedures are elaborate and capable of addressing the Petitioner’s complaints. In support of this argument, they rely on **Speaker of the National Assembly *v* Karume [1992] KLR 21**, where the Court of Appeal held that where a statute or the Constitution provides a dispute resolution procedure, that procedure ought to be followed before recourse is made to the courts. They also rely on **Geoffrey Muthiga Kabiru *&* 2 others *v* Samuel Munga Henry *&* 1756 others [2015] eKLR**, in which the Court emphasized that courts should be forums of last resort and that litigants must first exhaust available alternative mechanisms. 2. The Respondents further submit that no adverse or final decision has been made against the Petitioner and that the impugned notice to show cause and audit directive are merely preliminary and investigatory steps intended to give him an opportunity to explain himself. They assert that neither step constitutes a disciplinary finding, sanction, or threat of summary dismissal. They further submit that the Petitioner has not alleged that he was denied notice of the allegations or a reasonable opportunity to respond. Relying on **Judicial Service Commission *v* Mbalu Mutava *&* another [2015] eKLR**, the Respondents argue that a fair administrative process which has not culminated in a decision cannot itself amount to a violation of Article 47 of the Constitution, and that any cause of action can only crystallize if and when an adverse decision is ultimately made. 3. As concerns the notice to show cause and the requirement to respond to audit queries, the Respondents submit that they were consistent with the Employment Act, Article 47 of the Constitution, and section 4 of the Fair Administrative Action Act, 2015. They contend that the notice to show cause and the invitation to respond to audit queries were intended to afford the Petitioner an opportunity to be heard before any decision could be made. They further argue that courts should be slow to interfere with an employer’s internal management and human resource functions unless there is demonstrated illegality, irrationality, procedural impropriety, or unconstitutionality. In support of this proposition, they rely on **Mulewa v Women Enterprise Fund, Petition No. E945 of 2025 [2026] KEELRC 1124 (KLR)**, and **Alfred Nyungu Kimungui *v* Bomas of Kenya, [2019] KEELRC 2127 (KLR),** where the courts affirmed that judicial intervention should not extend to taking over an employer’s managerial prerogatives. 4. On the threshold for conservatory orders, the Respondents submit that it has not been met. They rely on **Gatirau Peter Munya *v* Dickson Mwenda Kithinji *&* 2 others [2014] eKLR**, where the Supreme Court held that conservatory orders should be granted on the basis of constitutional values, public interest, and the merits of the case. They also rely on **Board of Management of Uhuru Secondary School *v* City County Director of Education *&* 2 others [2015] eKLR**, which set out the requirements of a *prima facie* case, likelihood of prejudice, preservation of the substratum of the petition, and consideration of public interest. Applying those principles, the Respondents submit that the Petitioner has not established a *prima facie* case because no disciplinary decision has been made against him, the process remains investigatory, and the petition will not be rendered nugatory if the internal process proceeds. They further argue that public interest weighs against the grant of the orders, as the 2nd Respondent is accountable for public and farmer resources and a senior officer in charge of the Finance Department should not be insulated from ordinary internal audit and accountability mechanisms. The Respondents therefore urge the Court to dismiss the application dated 25th May 2026 with costs and allow the 2nd Respondent to proceed with its internal administrative and disciplinary processes in accordance with the law. Disposition 1. The Courts are wary of interface with disciplinary process unless there is very good reason. In the 2nd Respondent’s HR manual enjoins the Respondents to provide procedural and substantive fairness to employees when conducting any disciplinary action. The Petitioner asserts he was on medical leave in India when the Chairman of the 3rd Respondent, who was not his immediate or appropriate supervisor, contrary to the 2nd Respondent’s Human Resource Policies and Procedures Manual issued the notice to show cause. 2. In the case of the **Nubian Rights Forum *&* 2 others *v* Attorney General *&* 6 others; Child Welfare Society *&* 8 others (Interested Parties); Centre for Intellectual Property *&* Information Technology (Proposed Amicus Curiae)** *(supra)*the Court stated that an applicant must demonstrate a *prima facie* case with a likelihood of success, a real danger of prejudice if the orders are withheld, and that the orders are necessary to preserve the substratum of the petition and to uphold constitutional values. 3. In my considered view, when the process is shown to be *prima facie* unlawful, a Court of law is permitted to interpose to ensure the process that lacks legal and procedural validity is halted. Procedural fairness dictates that a party be given a hearing and the manner the audit report was prepared suggests the Petitioner’s apprehensions may well be founded. In order to retain the substratum of the Petition, I will order that the disciplinary process be halted pending the hearing and determination of this Petition. The Petition will be mentioned in the new term on 22nd September 2026 for directions as to disposal. It is so ordered. **Dated and delivered at Kisumu this 31st day of July 2026** **Nzioki wa Makau, MCIArb.** **JUDGE**