Employee Rights During a Disciplinary Process in Kenya

Why Procedural Fairness Is Now the Defining Standard in Employment Termination

By William Karoki Advocates (WKA Advocates) – wakilihub.co.ke/

In 2025, the Employment and Labour Relations Court (ELRC) has delivered multiple rulings underscoring a powerful truth: a termination may be substantively justified, but it will still be declared unfair if the disciplinary process is not conducted lawfully.

Across Kenya, employers are increasingly losing cases not because the employee was innocent, but because the disciplinary procedure violated their rights. As a result, businesses face heavy compensation awards, reputational damage, orders for reinstatement, and prolonged litigation.

This comprehensive guide outlines the Six Mandatory Rights every employee has during a disciplinary process in Kenya and explains how employers can protect themselves while remaining compliant with the Employment Act, 2007, and modern judicial standards.

1. The Right to a Proper Written Notice (Show Cause Letter)

The disciplinary process starts with a written Notice to Show Cause (NTSC). This document must outline the allegations with clarity and specificity. Vague accusations such as “gross misconduct” or “poor performance” are no longer acceptable.

Modern requirements include:

• Clear and complete description of the alleged misconduct

• Dates, locations, witness accounts, and policy provisions breached

• Evidence relied upon to support the allegations

• Adequate time for the employee to prepare a written response

Under current practice, giving an employee less than 48 hours to prepare their defence is generally viewed as procedurally unfair.

A Show Cause letter that is incomplete, unclear, or rushed undermines the entire disciplinary process and renders the termination unlawful—even where the underlying misconduct is obvious.

2. The Right to Full Disclosure of Evidence (The Akala Rule)

The 2025 decision in Akala v Kenya Commercial Bank Ltd significantly reshaped workplace investigations and disciplinary procedures.

The Court held that an employee has the right to access all evidence that the employer intends to rely on. This includes:

• Investigation reports

• Forensic audit findings

• CCTV or digital surveillance material

• Emails and internal communications

• Witness statements

• Any documents forming part of the employer’s case

Employers can no longer rely on “confidentiality” as a reason to withhold evidence.
Failure to disclose—fully and transparently—is enough for the Court to declare a dismissal procedurally unfair.

This standard now guides all disciplinary hearings across Kenya and has become a defining principle of fairness in employment relations.

3. The Right to Representation During the Hearing

Kenyan employees are entitled to be accompanied by:

• A fellow employee, or

• A shop-floor union representative (for unionised staff)

While there is no automatic right to legal representation, chairpersons may allow a lawyer where:

• the allegations are complex (e.g., financial fraud, cybercrime, accounting discrepancies),

• the consequences may affect the employee’s professional licensing, or

• natural justice demands it.

Employers are encouraged to clarify in the invitation letter whether external legal representation is permitted. Consistency in applying this rule demonstrates fairness and reduces grounds for dispute.

4. The Right to an Impartial and Independent Hearing Panel

A fair disciplinary hearing must be chaired by an individual who is:

• Neutral,

• Uninvolved in the investigation, and

• Free from personal interest in the outcome.

Supervisors who initiated the complaint, investigators who gathered evidence, or managers who previously expressed an opinion on the case cannot act as the decision-makers.

Impartiality is crucial because the ELRC closely evaluates whether the employee received a genuine opportunity to defend themselves before an unbiased tribunal. Any sign of bias—actual or perceived—invalidates the process.

For high-risk or senior-level cases, many organisations now appoint an independent chairperson to ensure objectivity, credibility, and procedural integrity.

5. The Right to Present Mitigation Before Sanction

Even after guilt is established, the employee must be given a chance to present:

• Their work history

• Past disciplinary record

• Personal circumstances

• Length of service

• Any issues that may have contributed to the incident

• Steps they have taken to correct or prevent recurrence

Mitigation allows the employer to consider alternatives to dismissal, such as warnings, retraining, redeployment, or suspension.

A disciplinary decision issued without considering mitigation—such as a dismissal letter drafted before the hearing concludes—demonstrates predetermined outcome bias, which automatically invalidates the termination.

6. The Right to Appeal the Disciplinary Decision

Every disciplinary process must include a clear avenue for appeal. The employee must be informed in writing:

• Who will hear the appeal (a higher authority than the original panel)

• The timeframe for lodging the appeal

• The acceptable grounds for appeal

• The procedure for submitting additional evidence or clarification

An appeal provides the organisation with a critical second opportunity to cure procedural defects before the matter escalates to litigation. It also reinforces transparency and internal accountability.

Failure to provide or communicate an appeal mechanism renders the disciplinary process incomplete and legally defective.

Why Kenyan Employers Are Losing Disciplinary Cases in 2025

Recent ELRC judgments show a common pattern of procedural violations, including:

• Issuing vague or incomplete Show Cause letters

• Withholding evidence or investigation reports

• Rushing employees into hearings without adequate preparation

• Using biased or conflicted chairpersons

• Predetermining outcomes

• Conducting poorly structured hearings with no clear record

• Denying employees the right to representation

• Ignoring the appeal stage

These avoidable gaps expose employers to unnecessary legal and financial risk.

How WKA Advocates Protects Employers During Disciplinary Processes

1. Drafting Clear, Accurate, and Legally Compliant Show Cause Letters

We prepare charge sheets and notices that withstand legal scrutiny by ensuring they are aligned with:

• Evidence gathered

• HR policies

• Employment law requirements

• Established judicial standards

Accurate drafting reduces disputes and strengthens the employer’s defence from the outset.

2. Independent Chairperson Service for Neutral Hearings

WKA Advocates provides legally trained, impartial chairpersons who:

• Conduct structured and compliant hearings

• Manage union officials professionally

• Ensure all parties are heard

• Deliver detailed, well-reasoned verdicts

• Produce comprehensive records and minutes

This drastically reduces the risk of bias claims and procedural challenges.

3. Comprehensive Evidence Review (The Akala Compliance Audit)

Before employers disclose documents to the accused employee, our team reviews:

• The quality and legal relevance of evidence

• The completeness of investigation materials

• Confidentiality considerations

• Compliance with current disclosure standards

This prevents procedural errors and strengthens the employer’s position in the event of litigation.

Conclusion: In Employment Law, the Process Is the Protection

Substantive fairness determines why you dismiss an employee.
Procedural fairness determines how you do it.
Courts in Kenya now treat the process as the single most important factor in assessing the legality of a termination.

A well-executed disciplinary process:

• Protects the employer,

• Upholds employee rights,

• Prevents costly awards,

• Reinforces organisational integrity,

• Ensures dismissals withstand legal scrutiny.

Employers handling sensitive or high-stakes cases should seek expert guidance before initiating any disciplinary action.

For Professional Support With Disciplinary Cases, Contact:

William Karoki Advocates (WKA Advocates)
Phone: +254 798 035 580
Email: info@wka.co.ke
Location: Valley View Business Park, 6th Floor, Suite 35, City Park Drive, Parklands, Nairobi
Website: wakilihub.co.ke/