Ngaya v Judicial Service Commission & 3 others (Cause 398 of 2014) [2020] KEELRC 1227 (KLR)
The bottom line
#A Kenyan court upheld a judiciary clerk's dismissal but ordered the employer to refund salary it wrongly clawed back for days he actually worked.
What this practically means
#Executive summary
#Key legal issues
#Whether the Judicial Service Commission could delegate its disciplinary powers
Section 69(2) and (3) of the repealed Constitution permitted delegation; the process initiated by the SPM and handled by the Registrar/Human Resource Management and Advisory Committee was within delegated authority
The court reproduced section 69 of the repealed Constitution showing the power to vest disciplinary control in the JSC and to delegate by written direction. It found that the preliminary investigation by the Head of Station and proceedings by the Human Resource Advisory Committee were covered by Regulation 16(2), which permits the Chief Justice exercising delegated authority to act in accordance with the Regulations or 'any other appropriate regulation' in force.
Whether the Claimant's employment was lawfully and fairly terminated
Termination substantively complied with the law; the only procedural deviation was failure to inform the claimant of the date the subcommittee would consider his case, which caused no prejudice
The charges were clearly set out in the show cause and interdiction letters and the claimant responded. An oral hearing was only required where the Commission invited the officer or a witness was called under Regulation 26(4) and (5); neither occurred, so no oral hearing was necessary and no prejudice was caused. The dismissal letter's failure to state grounds was not fatal given the claimant's own admissions in his response.
Whether section 69 of the repealed Constitution applied to the claimant, a clerical officer
Obiter: by the ejusdem generis rule, administrative staff like the claimant fall outside section 69(3) and are covered by 'other appropriate regulation' under Regulation 16(2)
The court applied ejusdem generis to the listed offices in section 69(3)(a)-(d), opining that subsection (e) covers only judicial staff such as members of quasi-judicial bodies, not administrative staff like clerical officers. It noted that parties did not address the matter in submissions, so it said no more.
Whether the claimant was entitled to refund of the Kshs.30,000 deducted from his salary
Yes - the recovery of salary earned before interdiction was illogical and unlawful, and the claimant was awarded Kshs.30,000 plus interest
The claimant was interdicted by letter of 21st December 2005 backdated to 11th January 2005. Since he was not on interdiction between January and December 2005 and earned the salary actually paid, recovering it was illogical. Moreover, the recovery was made from the half salary paid during interdiction itself. The backdating of interdiction was itself unlawful.
Legal principles established
#- An employer is not required to engage the criminal justice system before instituting disciplinary proceedings even where the misconduct also constitutes a criminal offence
- Fairness of a disciplinary hearing is not determined solely by its oral nature and may be satisfied through exchange of letters
- An employee cannot be placed on interdiction before the letter of interdiction is served, and salary cannot be recovered for days the employee worked
Court orders
#- 1.Judgment that the disciplinary proceedings against the claimant substantively complied with the requirements of the law and that there was justifiable reason for finding the claimant guilty of misconduct
- 2.Payment to the claimant of the sum of Kshs.30,000/= recovered from his salary
- 3.Interest on the Kshs.30,000/= at court rates from the date of filing suit
- 4.Each party to bear its own costs
- Jurisdiction invoked
- Transferred to the Employment and Labour Relations Court by direction of Onyancha J. on 12th March 2014
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngaya v Judicial Service Commission & 3 others (Cause 398 of 2014) [2020] KEELRC 1227 (KLR)", Case Analysis (2020). Not stated in judgment (transferred from High Court, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1227/eng@2020-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.