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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedNot stated in the judgment

Judicial Service Commission & another v Onyango (Civil Appeal E082 of 2022) [2023] KECA 1109 (KLR)

Court of Appeal of Kenya
22 September 2023
4,638 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that an employer who delegates a disciplinary hearing still makes the final decision and cannot be forced to reinstate an untrustworthy employee.

What this practically means

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Executive summary

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This was a first appeal from the Employment and Labour Relations Court at Nakuru (Hellen Wasilwa, J., judgment dated 12th July 2022), which had found that a Court Bailiff of the Judiciary was unfairly dismissed and ordered his reinstatement with back pay. The dismissal arose from deposits totalling Kshs.1,550,000 from the Molo Law Courts deposit account into the respondent's personal account at the instance of a colleague. After a disciplinary hearing, the Human Resource Management Advisory Committee (HRMAC) recommended reinstatement with the benefit of doubt, but the Judicial Service Commission nonetheless dismissed the respondent. The Court of Appeal allowed the appeal. It held, applying the delegation principle, that although the JSC delegated its authority to the HRMAC to conduct the disciplinary hearing, the Commission retained the responsibility to make the final decision and was not bound by the Committee's recommendation, nor obliged to conduct a fresh hearing. The respondent was therefore accorded a fair hearing through the HRMAC process. The Court found that the respondent's conduct - receiving and transferring funds without questioning their source - had caused the employer substantial financial loss and destroyed the trust necessary for continued employment. It set aside the order of reinstatement, allowed the appeal, and awarded costs to the appellants. The decision reverses the judgment below in its entirety.

Key legal issues

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01

Whether delegation of the disciplinary hearing to the HRMAC bound the Judicial Service Commission to its recommendation

Holding

No. The JSC retained the responsibility and mandate to make the final determination and could depart from the HRMAC recommendation without conducting a fresh hearing.

Reasoning

The court applied the principle that one may delegate authority but not responsibility. Where a principal delegates a function to a committee, the committee does not supplant the principal; it only makes recommendations. The JSC, having delegated its authority to the HRMAC to hear the respondent, retained the power to decide the respondent's fate, and the failure to adopt the reinstatement recommendation was not an abdication or a denial of fair hearing.

p. 7
02

Whether the respondent was unfairly terminated for want of a hearing before the JSC

Holding

No. The respondent was accorded a fair hearing by the HRMAC, to whom the JSC had delegated authority, and the hearing requirement was satisfied at that stage.

Reasoning

The court held that when the HRMAC gave the respondent a hearing, the JSC was deemed to have undertaken that process. The respondent himself conceded disciplinary proceedings took place, and the JSC's consideration of his appeal by way of documentary review did not render the dismissal unfair. The trial court erred in equating the committee's recommendation to a decision of the Commission.

p. 7
03

Whether reinstatement was the appropriate remedy

Holding

No. Reinstatement was set aside because the respondent's conduct caused the employer financial loss and trust could not be restored.

Reasoning

The court reappraised the evidence and found the respondent received funds from the Molo Law Courts deposit account and transferred them to his colleague's account without questioning the source, undermining his claim of ignorance. Given the breach of trust and the financial loss suffered, the employer could not be compelled to take him back.

p. 8

Legal principles established

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  • A commission that delegates disciplinary hearings to a committee retains responsibility for the final decision and is not bound by the committee's recommendations
  • The Commission was not obliged to accept the recommendation of its committee nor to conduct a fresh disciplinary hearing

Court orders

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  1. 1.The order for reinstatement of the respondent was set aside
  2. 2.The appeal was allowed with costs to the appellants
On appeal from
Employment and Labour Relations Court, Nakuru
Not stated in the judgment
Jurisdiction invoked
First appeal under Rule 29(1) of the Court of Appeal Rules, 2022

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Judicial Service Commission & another v Onyango (Civil Appeal E082 of 2022) [2023] KECA 1109 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1109/eng@2023-09-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.