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ELRCPartially AllowedPetition (Nairobi), decided 16th December 2020

Nyawiri v Judicial Service Commission & another (Petition 58 of 2020) [2020] KEELRC 13 (KLR)

High Court of Kenya (Employment and Labour Relations jurisdiction)
16 December 2020
MMM. Mbaru
6,332 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court upheld a magistrate's dismissal but ruled his employer couldn't lawfully withhold his salary during suspension.

What this practically means

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Executive summary

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A former magistrate petitioned the High Court challenging his indefinite suspension on nil salary by letter dated 31st May 2018 and his subsequent dismissal by the Judicial Service Commission by letter dated 19th December 2019. He sought declarations that his rights under Articles 25(c), 28, 41, 43, 47, 48, 50 and 236(b) of the Constitution were violated, quashing of both decisions, reinstatement, injunctions, and general damages. The respondents, through the affidavit of the Judiciary's Chief Registrar, maintained that an audit of Makueni Law Courts revealed fraudulent revenue alteration, irregular single-sourcing of catering services for the Makueni High Court launch, and improper use of a Kshs.12,000 court fine, justifying disciplinary proceedings conducted with full due process. The court framed three issues: the lawfulness of the suspension, whether there were violations of the constitution and the law, and the remedies due. It held that the Chief Justice was empowered under the Third Schedule of the Judicial Service Act to suspend an officer facing dismissal proceedings, but that withholding salary during an administrative suspension while employment subsists is punitive and unjustified. It further held that the disciplinary process complied with sections 35, 41 and 47(5) of the Employment Act and that the employer had a genuine, reasonable belief in the grounds of gross misconduct, especially given the petitioner's responsibility as head of station during the audit period. The petition was dismissed as without merit, but the court ordered payment of salary due for the suspension period where not already received, with each party bearing its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the suspension of the petitioner was lawful
  2. 2.Whether there is violation of the constitution and the law
  3. 3.Whether the remedies sought should issue

Key legal issues

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01

Lawfulness of suspension before disciplinary hearing

Holding

Suspension was lawful under the Judicial Service Act, Third Schedule, but the withholding of salary during administrative suspension was unlawful

Reasoning

The Chief Justice is empowered under paragraphs 17(2), (3) and (4) of the Third Schedule of the Judicial Service Act to suspend an officer against whom dismissal proceedings have been taken. The petitioner was informed of the reasons for suspension. However, withholding salary during an administrative suspension while employment subsists is punitive and lacks justification, so the withheld pay is recoverable.

p. 8
02

Fairness of the disciplinary process and termination

Holding

The disciplinary process complied with the Employment Act and the Judicial Service Act; termination was for a genuine, valid reason

Reasoning

The petitioner was notified of allegations, allowed to respond in writing, attended a hearing before the JSC Human Resources Committee with representation, and was given reasons for dismissal. On the merits, as head of station he bore responsibility for altered revenue receipts, the irregular single-sourcing of catering services and the improper use of Kshs.12,000 in court fines.

p. 10
03

Whether reinstatement and constitutional damages should issue

Holding

Reinstatement refused as termination was justified; salary for the suspension period ordered paid

Reasoning

Since termination was lawful and for good cause, reinstatement would not be just. The only relief flowing from the findings is payment of salary and benefits for the suspension period, 31st May 2018 to 19th December 2019, unless already paid.

p. 12

Legal principles established

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  • Payment of wages during an administrative suspension while employment subsists has no justification in the constitution or written law
  • Termination is lawful where the employer genuinely believed the reasons for termination existed

Court orders

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  1. 1.Petition dismissed
  2. 2.Salary due for the period of suspension leading to termination of employment is payable where such has not been received
  3. 3.Each party to bear own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

MM
majority

Wrote the judgment

Jurisdiction invoked
Original constitutional petition under Article 23(1) of the Constitution of Kenya, 2010 read with Articles 47, 236 and 258 and the Employment Act, 2007

Relief refused

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Declarations of violation of Articles 25(c), 28, 41, 43, 47, 48, 50 and 236(b)

Due process was followed and violations not proved

p. 10

Certiorari quashing the suspension and dismissal letters

Termination was lawful and for justifiable cause

p. 12

Prohibition, permanent injunction and mandamus (reinstatement)

Reinstatement not justifiable where termination was lawful and justified

p. 12

General damages for breach of constitutional rights

No violations established

p. 7

Costs

Each party shall bear own costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, the petition is found without merit and is hereby dismissed; save the salary due for the period of suspension and leading to termination of employment is payable where such has not been received; each party shall bear own costs.
p. 12Final orders
While employment subsists there is no justifiable cause or specifc legal provision under the Employment Act 2007 allowing forfeiture of a salary.
p. 9Withholding salary during administrative suspension
In this case, the respondents/employer has demonstrated they genuinely believed that there were reasonable grounds and suficient grounds to suspect that the petitioner had committed gross misconduct during his employment as head of station, Makueni Law Courts.
p. 11Justifiable cause for termination

Issues in the judgment

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minor

Internal inconsistency on the dismissal letter date

minor

Contrast between allegations framing and findings on which dismissal was grounded

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Nyawiri v Judicial Service Commission & another (Petition 58 of 2020) [2020] KEELRC 13 (KLR)", Case Analysis (2020). Petition (Nairobi), decided 16th December 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/13/eng@2020-12-16

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