James Mugera Igati v Public Service Commission of Kenya [2014] KEELRC 735 (KLR)

The Court held that neither the repealed Employment Act Cap 226 nor the Public Service Commission Regulations 2005 ties the disciplinary process to criminal proceedings on the same facts. Section 17 of the repealed Act did not make disciplinary proceedings subject to criminal trial or conviction. The Regulations themselves distinguish disciplinary punishment from criminal proceedings. The Claimant's acquittal under Section 210 of the Criminal Procedure Code, based on insufficient prosecution evidence, therefore did not bar the employer from disciplining him.

The Court acknowledged that an employer who expressly subordinates its disciplinary decision to a criminal court's outcome forfeits control of the process. But here the wording of the interdiction letter was ambiguous, and the Respondent took secondary disciplinary action before the criminal judgment, communicating a change of course. The Court was not persuaded the Respondent had surrendered its prerogative to make an independent administrative decision.

Investigations by the employer showed that documents supporting the Claimant's loan application, purportedly signed by Ministry officers, were disowned by the alleged signatories. The Claimant refused to answer the substantive charges, citing the pending criminal case, which the Court held was his own misconception of the two processes. He had further opportunity to explain at the Industrial Court but did not. The decision was consistent with the law.

The Claimant sought five years' salary for a period he had not worked, percentage increments with no collective agreement or wage order basis, severance pay with no evidence of redundancy, eight years' annual leave without specifying the period, and unspecified 'other benefits'. The Court found these claims had no evidential or legal foundation and would not have been granted even had the dismissal been unlawful.