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ELRCDismissedPetition No E097 of 2020· [2021] KEELRC 162 (KLR)

Solomon Stallone Akanga v Chief Justice and President of the Supreme Court of Kenya & Judicial Service Commission [2021] KEELRC 162 (KLR)

Employment and Labour Relations Court
10 December 2021
6,094 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court upheld a judiciary employee's interdiction and dismissed all his claims, ruling that resigning before a disciplinary decision forfeits withheld salary.

What this practically means

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Executive summary

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The Petitioner, a Regional Principal Human Resource and Administration Officer in the Judiciary stationed at Kisii Law Courts, was interdicted on 13th February 2015 by the Chief Justice following complaints of absenteeism and misconduct confirmed by his supervisor. Charges were framed and he responded in March 2015; the Judicial Service Commission constituted a Committee whose hearing spanned 2017 to 2019, and the Petitioner resigned by one month's notice on 29th July 2019, three days after the Committee closed proceedings. He petitioned the Employment and Labour Relations Court seeking declarations that the interdiction and disciplinary process violated Articles 41, 47 and 236 of the Constitution, Section 32 of the Judicial Service Act and the Fair Administrative Action Act, a declaration of constructive dismissal, and payment of withheld half salary (Kshs.8,474,525.75), unpaid half salary (Kshs.654,307.75), airtime allowance, leave dues and general damages. The court framed four issues and held that the interdiction complied with paragraph 16 and 25 of the Third Schedule to the Judicial Service Act and the HR Manual, and that an officer need not be heard before interdiction so long as some inquiry precedes it. The roughly 26-month delay in commencing the hearing was deprecated and the JSC urged to delimit interdiction periods, but no timelines exist in law and the Petitioner neither complained at the time nor proved anguish. Constructive dismissal was not proved, the resignation letter expressing thanks rather than grievance. All monetary claims failed: salary restoration is conditional on proceedings ending without punishment; the airtime allowance attaches to working employees; leave claims lacked proof; and damages require a proved violation. The petition was dismissed with no orders as to costs.

Key legal issues

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01

Whether the interdiction without a prior hearing violated Articles 41, 47 and 236 of the Constitution and Section 32 of the Judicial Service Act

Holding

Interdiction was lawful; the Chief Justice need only make such inquiry as he thinks fit before interdicting, and the Petitioner was later given charges to respond to before disciplinary proceedings commenced

Reasoning

The Chief Justice received complaints, confirmed the absence from duty through the immediate supervisor, and interdicted under paragraph 16 of the Third Schedule and Section D.7.5.1 of the HR Manual. Charges were framed and the Petitioner responded on 9th March 2015 before the matter was escalated to the Commission. The court held this satisfied paragraph 25 of the Third Schedule and Articles 41, 47 and 236 and the Fair Administrative Action Act.

p. 6
02

Whether the delay of about 26 months between interdiction and the disciplinary hearing infringed fair administrative action rights

Holding

Delay was noted and deprecated, but no timelines exist in the JSA or HR Manual, and the Petitioner neither prompted the Respondents nor proved anguish; no infringement was established

Reasoning

The court acknowledged the 26-month lapse and the Respondents' explanation (retirement of the Chief Justice, recruitment of a new CJ, capped sittings, vacancies). Neither statute nor manual prescribes timelines. The court recommended the JSC delimit the interdiction period, but found the Petitioner did not complain at the time, adjournments were largely at his behest, and the pleaded suffering was not proved.

p. 7
03

Whether the Petitioner was constructively dismissed

Holding

Not proved; the resignation letter expressed no anguish and was tendered three days after the disciplinary hearing closed

Reasoning

Applying the constructive dismissal test from Western Excavating v Sharp and David Potter, the employee bears the burden of showing intolerable conditions. The Petitioner's resignation letter thanked the Judiciary, gave ordinary one month notice, and followed the closure of disciplinary proceedings after repeated adjournments sought by him.

p. 9
04

Entitlement to withheld salary, airtime allowance, leave and general damages

Holding

All monetary and damages claims failed: salary restoration conditional on non-punishment was not triggered; airtime allowance is for working employees; leave claims unproven; damages unavailable absent proved violation

Reasoning

Paragraph 16(3) of the Third Schedule restores withheld salary only where proceedings end without dismissal or punishment; the Petitioner resigned before the Commission's determination. The airtime allowance facilitates work, which he was not doing. Leave claims lacked evidential basis, and general damages depend on proved violation of rights.

p. 9

Legal principles established

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  • An employee need not be given an opportunity to defend himself before interdiction; it suffices that the Chief Justice makes such inquiry as he thinks fit before interdicting, provided proceedings leading to dismissal are contemplated
  • Indefinite suspension or interdiction amounts to a violation of Articles 25, 28 and 50 of the Constitution; the period between interdiction and commencement of a disciplinary hearing should be delimited
  • Constructive dismissal must be pleaded and proved by the employee showing intolerable working conditions justified in resignation
  • Withheld salary during interdiction is restored only where the officer is neither dismissed nor otherwise punished upon conclusion of proceedings

Court orders

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  1. 1.A declaration that the Petitioner's employment contract terminated on 29th August 2019 upon the lapse of his one month resignation notice from 29th July 2019
  2. 2.Dismissal of the entire petition with no orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 41, 47, 50, 159(2)(d), 166, 171, 172, 236, 48
  • Judicial Service ActSection 3, Section 32, Third Schedule paragraphs 16, 18, 21, 25
  • Fair Administrative Action ActGeneral (No. 5 of 2015)
  • Judiciary Human Resource Policies and Procedures ManualSection D.7.5.1, clause K.3
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (8)

  • Eustace Muriithi Njeru v Energy Regulatory Authority
    [2020] eKLR
  • Josephine Washifutswa Nambiro v Energy & Petroleum Regulatory Authority
    [2020] eKLR
  • Kenya Magistrates and Judges Association v Judicial Service Commission and others
    [2020] eKLR
  • Lear Shighadi Sinoya v Avtech Systems Limited
    [2017] eKLR
  • Osman Eggae Egaal v John Philip Tilley & Others
    Petition No. 90 of 2012
  • David Potter v New Brunswick Legal Aid Services Commission
    2015 SCC 10
  • Western Excavating ECC Ltd v Sharp
    (1978) 2 WLR 344
  • Herbert Wafula Waswa v Kenya Wildlife Services
    [2020] eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 (petition alleging contravention of Articles 41, 47, 236, 50; enforcement provisions not expressly cited)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Solomon Stallone Akanga v Chief Justice and President of the Supreme Court of Kenya & Judicial Service Commission [2021] KEELRC 162 (KLR)", Case Analysis (2021). Petition No E097 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/162/eng@2021-12-10

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