Simon N. Mwaniki & 25 others v Permanent Secretary Ministry of Defence & 3 others [2018] KEELRC 1491 (KLR)

The Court adopted the definition of discrimination from Blacks Law 9th Edition, noting that discrimination envisages treating one group differently or preferentially against another under similar circumstances. The Petitioners did not point to what they were subjected to as opposed to a different group under similar circumstances, so the claim was not founded.

The Court examined the circumstances of the disciplinary process and held that an oral hearing would have made a difference, allowing the Petitioners to explain when and where they sat trade tests and why they believed their certificates were authentic. Although the PSC discipline manual required notice and opportunity to respond, those procedures did not meet constitutional standards on fair administrative action. The right to a fair hearing was mandatory.

The Court found interdiction during investigation permissible under the Public Service Commission Manual, which provides that a public officer on interdiction is entitled to half basic salary and that upon lifting of interdiction any withheld salary, allowances and benefits are restored from the date withheld. The dismissed Petitioners were excluded from this entitlement.

Although the Petitioners were given an opportunity to appeal to the Public Service Commission within six weeks and did not prove that they appealed, the Court nonetheless found that their right to a fair hearing had not been accorded, and granted declarations and damages notwithstanding.