IS THE JUDGE THE HR?

When an employee faces disciplinary action, how far can a court go in questioning the employer’s chosen penalty? The Kenyan Court of Appeal recently addressed this critical boundary in Rift Valley Bottlers Ltd v Thuo (Civil Appeal E235 of 2021) [2026] KECA 1495 (KLR), providing a clear boundary between judicial oversight and managerial discretion.

Factual Background and ELRC Decision

The case involved Martin Thuo, a long-serving employee at Rift Valley Bottlers. While Thuo was on duty, 60 unaccounted-for crates of Sprite were loaded onto a dispatch truck. Although security intercepted the vehicle before it exited the premises, management issued a summary dismissal. Thuo contested the decision, contending that while the error occurred, it was an honest mistake lacking fraudulent intent, and the company incurred no financial loss.

At the trial level, the Employment and Labour Relations Court (ELRC) agreed that Thuo had committed an administrative lapse. However, the trial judge deemed summary dismissal disproportionately severe, reasoning that a formal warning would have sufficed. Consequently, the ELRC quashed the termination and awarded Thuo ten months’ gross salary in compensation, notice pay, and litigation costs.

Rift Valley Bottlers appealed, raising a fundamental question of employment law: At what point does judicial review of workplace discipline cross the line into replacing the employer’s business judgment?

The Court of Appeal’s Position:The Range of Reasonable Responses

The Court of Appeal overturned the ELRC decision, establishing a firm distinction between evaluating the legality of a disciplinary outcome and usurping the role of human resources.

The appellate bench emphasized that trial courts must not ask, “What penalty would I have imposed in this situation?” Instead, judicial inquiry must focus on three objective criteria:

1. Did the employer have a valid, justifiable reason for discipline?
2. Was procedural fairness observed?
3. Did the sanction fall within the “range of reasonable responses” open to a reasonable employer under those specific circumstances?

Because different management teams may legitimately respond to misconduct in varying ways, a judge’s preference for a milder sanction does not automatically make a dismissal unlawful. By declaring that a warning should have been issued instead of termination, the trial court had improperly assumed the employer’s internal management powers.

The Statutory Test

This approach follows the structure of the Employment Act, 2007. Section 41 requires notice and a hearing. Section 43 requires the employer to prove the reason for termination. Section 45 provides that a termination is unfair unless the employer shows a valid and fair reason and a fair procedure.

The ELRC’s issue, on this reading, is that proportionality (“a warning would have been enough”) was treated as sufficient to make the dismissal unfair. Proportionality is relevant, but it is assessed through the statutory tests and the range of reasonable responses, not through the judge’s personal view of the right penalty.

Distinguishing Disciplinary Sanctions from Statutory Remedies

The more interesting point is what the decision does not say.

A warning, suspension or dismissal is a sanction. Choosing among them belongs in the first instance, to the employer. A court cannot prefer one and substitute it because it seems fairer.

A remedy is a different matter. Where a court first finds a termination unfair or unlawful, it is no longer exercising the employer’s disciplinary discretion. It is exercising its own statutory jurisdiction under section 49 of the Employment Act and section 12(3) of the Employment and Labour Relations Court Act. Compensation, usually capped at twelve months’ gross salary, is the typical remedy. Reinstatement and re-engagement are available but discretionary and subject to statutory considerations.

So, a reinstatement order is not necessarily a judge swapping dismissal for a lesser penalty. It can be the lawful consequence of a prior finding that the dismissal could not stand.

Two stages,kept apart

Thuo is best read as requiring two separate inquiries:

1. Sanction: Did the employer have a valid reason, follow a fair procedure, and act within the range of reasonable responses?
2. Remedy: If not, what relief does the statute allow the court to grant?

Collapsing the two, by reasoning that dismissal was too harsh and therefore unfair, is where the ELRC went wrong. Reading Thuo as stripping the ELRC of its remedial powers would be equally mistaken.

What this means in practice

For employers: Document the reason, follow the section 41 process, and be able to explain why dismissal was within the range of reasonable responses. A finding that you were harsh is not enough to condemn the decision, but it will not rescue a defective process either.

For employees: An argument that the penalty was too severe will not win on its own. Frame the case around the statutory tests: whether the reason was proved and the procedure fair.

For both: The open question is where correcting an unfair dismissal ends and substituting discipline begins. That line will be drawn case by case.

The judge is not HR. But the judge remains a judge: review, don’t replace, and remedy w Rethinking Judicial Oversight in Employment Disputes: Lessons from Rift Valley Bottlers Ltd v Thuo here the law permits.

Key Takeaway

The Court of Appeal’s decision reinforces a simple principle: Courts are meant to review, not replace.

While the ELRC retains full authority to remedy unfair dismissals established under the law, judges cannot act as internal HR managers by substituting their preferred disciplinary measures for reasonable decisions made by employers.

How HMS Africa Advocates LLP Can Help

Navigating the delicate balance between managerial discretion and employment law compliance requires proactive legal counsel. At HMS Africa Advocates LLP, our specialized Employment and Labour Relations practice assists employers by drafting clear contracts and HR policies, conducting forensic investigations, and structuring procedurally sound disciplinary hearings under Section 41. We ensure any disciplinary sanction falls firmly within the legally recognized “range of reasonable responses,” safeguarding management from costly ELRC litigation. For employees, our legal team provides expert representation during internal proceedings, reviews dismissals for compliance under Sections 43 and 45, and aggressively advocates before the courts to protect workplace rights and secure fair compensation

For legal assistance or inquiries regarding employment, labour relations, outsourcing arrangements, trade union matters, or other workplace-related issues, please contact HMS Africa Advocates LLP via email at [email protected].