Wycliffe Nyandigisi v Attorney General & 5 others [2020] KEELRC 1363 (KLR)
The bottom line
#Being cleared of criminal charges in Kenya does not stop your employer from disciplining you over the same facts, though you must still be paid for suspension time.
What this practically means
#Executive summary
#Key legal issues
#Double jeopardy / acquittal as a bar to disciplinary proceedings
The applicant's discharge under section 82 of the Criminal Procedure Code did not bar removal proceedings under the Service Standing Orders; no double jeopardy arose.
The applicant relied on Rosemelle Anyango Mutoka v Judicial Service Commission and Joshua Muindi Maingi v National Police Service Commission to argue that he could not face disciplinary proceedings on facts on which he had been discharged. The Respondents relied on Attorney General & Anr v Andrew Maina Githinji and Kibe v Attorney General, Court of Appeal decisions holding that acquittal does not render an employee immune to disciplinary action. The Court endorsed and applied the Githinji and Kibe position, noting the distinct objectives and standards of proof of criminal and disciplinary processes.
Prima facie case and threshold for conservatory orders
The applicant failed to demonstrate exceptional circumstances justifying judicial intervention in ongoing disciplinary/removal proceedings.
The Court reiterated that intervention in disciplinary proceedings is reserved for the most exceptional cases. The applicant did not challenge the Respondents' statutory authority to initiate removal proceedings nor the validity of the enabling provisions, and did not demonstrate any exceptional circumstances, so no prima facie case for conservatory orders was made out.
Accrued salaries and restoration of instruments of office during suspension
Since the suspension was lifted, the Respondents should process accrued salaries and restore the applicant's uniform and certificate of appointment.
The applicant had been suspended on 5 May 2018 and reinstated on 20 January 2020. The Respondents contended that accrued salaries were an administrative matter being addressed. The Court held that in fairness, once the suspension was withdrawn, the Respondents should process accrued salaries and restore the uniform and certificate of appointment.
Legal principles established
#- An acquittal or discharge in criminal proceedings does not automatically bar an employer from instituting disciplinary proceedings on the same facts, as the two processes have distinct objectives and standards of proof.
- Courts should intervene in disciplinary proceedings only in the most exceptional cases.
Court orders
#- 1.Refusal of conservatory orders interdicting the removal proceedings
- 2.Direction that the Respondents process and pay the applicant's remuneration from the time of suspension to the date the suspension was lifted
- 3.Observation that the Respondents should restore the applicant's uniform and certificate of appointment
- 4.Costs to abide the Petition
- Jurisdiction invoked
- Constitution of Kenya, Articles 47 and 50(2) invoked in the Petition; employment and labour relations jurisdiction of the ELRC
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wycliffe Nyandigisi v Attorney General & 5 others [2020] KEELRC 1363 (KLR)", Case Analysis (2020). Petition of 29 January 2020 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1363/eng@2020-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.