Judicial Service Commission & another v Onyango (Civil Appeal E082 of 2022) [2023] KECA 1109 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether delegation of the disciplinary hearing to the HRMAC bound the Judicial Service Commission to its recommendation
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.
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.
Whether the respondent was unfairly terminated for want of a hearing before the JSC
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.
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.
Whether reinstatement was the appropriate remedy
No. Reinstatement was set aside because the respondent's conduct caused the employer financial loss and trust could not be restored.
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.
Legal principles established
#- 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
#- 1.The order for reinstatement of the respondent was set aside
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Judicial Service Commission v Mbiti (Civil Appeal E307 of 2024) [2026] KECA 1605 (KLR)[2026] KECA 1605 (KLR)31 Jul 2026
- Dock Workers Union (K) v Director of Occupational Safety and Health Services & 5 others; Federation of Kenya Employers & another (Interested Parties) (Petition E004 of 2024) [2025] KEELRC 51 (KLR)[2025] KEELRC 51 (KLR)23 Jan 2025applied
Cite this brief
#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.