Okemwa & 8 others v Judicial Service Commission (Cause 16 of 2014) [2016] KEELRC 244 (KLR)
The bottom line
#Kenya's Employment Court ruled the Judiciary could lawfully downgrade and transfer staff hired irregularly, but employees can't be forced to repay salaries paid under flawed appointments.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness of the downgrade and salary review
The re-designation was lawful; the Claimants' recruitment, confirmation and progression were outside established systems and the Respondent was obligated to regularise them.
The court found the Claimants were recruited without advertisement or competitive process as required by Article 172(2) of the Constitution and the Third Schedule of the Judicial Service Act, and rose with unusual speed. Following Trusted Society of Human Rights Alliance, recruitment outside established policy is unlawful, and a court cannot confirm illegal actions. The Respondent therefore acted lawfully in re-designating them.
Lawfulness and fairness of the transfers
The transfers were regular and lawful; no evidence showed they were punitive.
The court held that employer prerogative to transfer will only be disturbed where the transfer is a punitive measure. The Claimants led no such evidence, so their mass transfers to upcountry stations were lawful despite their protestations of malice and collective punishment.
The Respondent's counterclaim for repayment of Kshs. 20,500,000 in wages and benefits
The counterclaim failed; the collusion theory was rejected and the Claimants were not in pari delicto with the former Chief Registrar.
The court found it implausible that a senior office holder would collude with junior officers, and relied on Michael Mwalo: an employee need not verify a senior official's authority. Section 19(1)(e) of the Employment Act was held inapplicable to systemic wrongdoing. Responsibility for the loss was placed on the former Chief Registrar and every public officer who effected the irregular payments under Article 226(5) and Section 202 of the Public Finance Management Act.
Use of improperly obtained confidential documents
The Claimants' use of the Respondent's confidential documents was improper and must be discouraged.
The 1st Claimant admitted obtaining Judicial Service Commission minutes and other employees' letters from the former Chief Registrar. Following Okiya Omtatah Okoiti, courts will not rely on improperly obtained documents; an employee should use a production notice instead.
Legal principles established
#- A court of law cannot confirm actions taken illegally; an employer is mandated to correct irregular appointments and grading.
- The court will not interfere with an employer's prerogative to transfer an employee unless the transfer is shown to be punitive.
- An employee dealing with a senior official is not expected to verify the official's authority; employees without collusion are not in pari delicto and cannot be made to refund salaries paid under irregular appointments.
- Section 19(1)(e) of the Employment Act on deduction of overpaid wages deals only with clerical errors, not systemic wrongdoing without employee collusion.
- Responsibility for loss of public funds rests on the officer legally duty-bound to guard them and cascades to every public officer who effected irregular payments.
- Courts will not rely on documents improperly obtained; employees should access employer documents by production notice.
Court orders
#- 1.Dismissal of the Claimants' claim in its entirety
- 2.Dismissal of the Respondent's counterclaim in its entirety
- 3.Each party to bear their own costs
- Jurisdiction invoked
- Employment and labour relations jurisdiction over disputes between the Judicial Service Commission and its staff; claims founded on Articles 41(1) and (2), 47 and 236 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okemwa & 8 others v Judicial Service Commission (Cause 16 of 2014) [2016] KEELRC 244 (KLR)", Case Analysis (2016). Cause No 16 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/244/eng@2016-12-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.