27 February 2026
Handling employee discipline is one of the most sensitive responsibilities an employer carries.
In Kenya, disciplinary processes are not merely internal HR matters; they are legal processes governed primarily by the Employment Act CAP. 226 Laws of Kenya.
When handling disciplinary issues, the employer must prioritize fairness and legal compliance.
In this article we will highlight and discuss the different things that every employer in Kenya ought to look out for when dealing with disciplinary issues.
1. Investigate Before Acting
One of the biggest mistakes employers make is disciplining an employee before conducting a proper investigation.
In Akuja -v- Turkana University College Council (2022) KEELRC 1623 (KLR) the Court highlighted the critical necessity of conducting a Preliminary Investigations before issuing a Notice to Show Cause.
Before issuing a show cause letter, take time to gather evidence, interview witnesses, review relevant documents, and verify the allegations. It is generally prudent for an employer to conduct a preliminary investigation before issuing a Notice to Show Cause (NTSC), particularly where the employer needs a proper factual foundation to frame clear and specific allegations. Without prior investigation, the NTSC risks being vague, speculative, or based on incomplete information, which may undermine procedural fairness.
A proper investigation isn’t just a formality – it’s the foundation of a fair, lawful, and defensible disciplinary process.
2. Follow Your Own Human Resource (HR) Policies
Employers are legally bound by their own HR policies and contractual obligations. Before taking any disciplinary action, it is critical to ensure that you are following the procedures you have set for yourself.
Courts will be sure to examine whether the employer followed the employment contract, the staff handbook, the Internal HR policies and any applicable Collective Bargaining Agreement.
If your policy prescribes a specific disciplinary process, you must follow it strictly. Ignoring or bypassing your own procedures significantly weakens your legal position.
3. Compliance with the Law
Under the Employment Act CAP 226, both substantive and procedural fairness are a necessity when disciplining an employee.
This means that employers must have valid and justifiable reason based on facts, clearly explaining the allegations and evidence to the employee, giving them a genuine opportunity to respond, and allowing representation where applicable.
The process must be transparent and unbiased, as courts will assess whether a reasonable employer, faced with the same circumstances, would have acted similarly.
Failure to comply with these requirements can render even a justified disciplinary action or termination unlawful.
Legal compliance is non-negotiable; fairness must be both in fact and appearance.
4. Fair Hearing
For disciplinary action to be lawful and defensible, an employee must be afforded a fair hearing, a fundamental principle of procedural fairness and natural justice.
Firstly, the employer must provide the employee with clear, written allegations, detailing the charges and any supporting evidence. The employee must then be given adequate time to prepare a defence. While the law does not prescribe a fixed number of days, courts have clarified what constitutes a reasonable period. In Benjamin Mwendwa Ndauti & 4 Others v East African Portland Cement Company [2016] KEELRC 1308 (KLR), the court held that employees should generally be given at least seven days to prepare and respond effectively.
Second, the disciplinary hearing must be conducted in an environment free from prejudice. Employees should be informed of the identities of the disciplinary panel members. Including individuals who are biased, or who were directly involved in the allegations or prior investigations, can render the process null and void. This principle was emphasized in Mutisya v G4S Kenya Limited [2025] KEELRC 2474 (KLR), where a biased panel invalidated the proceedings despite the evidence of misconduct.
Third, the employee must be informed of their right to be accompanied by a fellow employee or a shop floor union representative, in line with Section 41 of the Employment Act.
Finally, the employee’s explanation or defence must be genuinely considered before any decision is taken. A fair hearing not only strengthens the legal defensibility of disciplinary actions but also promotes transparency, trust, and fairness in the workplace.
5. Ensure Proportionality of Punishment
Disciplinary action should always be proportionate to the seriousness of the offence.
Minor misconduct may warrant a warning, repeated misconduct may require a final warning or suspension, and gross misconduct can justify summary dismissal.
Even where misconduct is proven, imposing a punishment that is excessive or disproportionate may be deemed unfair. The purpose of discipline is corrective, aiming to improve behaviour rather than merely to punish.
6.Proper Documentation
Keeping proper documentation is essential when handling disciplinary matters, as it can make all the difference in an employment dispute.
Employers should maintain clear records of written warnings, performance appraisals, show cause letters, employee responses, hearing minutes, investigation reports, and termination letters.
These documents not only show that the employer acted fairly and followed the correct procedures but also provide concrete evidence to justify decisions. Without thorough documentation, it becomes much harder to prove that disciplinary actions were reasonable and legally compliant, leaving the organization exposed to potential claims.
7. Act Promptly and in Good Faith
Disciplinary action must be taken promptly and in good faith.
Unreasonable delays in addressing misconduct may suggest a waiver of the offence, indicate malice, or give the impression of an afterthought justification.
To ensure fairness, any disciplinary measures should be initiated within a reasonable timeframe after the misconduct is discovered.
Conclusion
Every employer must note that disciplinary processes in Kenya are not casual administrative exercises, they are legal proceedings that must meet statutory standards governed under the Employment Act CAP. 226 Laws of Kenya.
It’s also wise to consider informal resolution mechanisms first. Not every workplace issue requires formal disciplinary action. Sometimes, a clarification meeting or mediation can resolve the matter effectively.
By Mary Mwende, Lawyer – A.N. Kamau & Co. Advocates
