Solomon Stallone Akanga v Chief Justice and President of the Supreme Court of Kenya & Judicial Service Commission [2021] KEELRC 162 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the interdiction without a prior hearing violated Articles 41, 47 and 236 of the Constitution and Section 32 of the Judicial Service Act
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
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.
Whether the delay of about 26 months between interdiction and the disciplinary hearing infringed fair administrative action rights
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
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.
Whether the Petitioner was constructively dismissed
Not proved; the resignation letter expressed no anguish and was tendered three days after the disciplinary hearing closed
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.
Entitlement to withheld salary, airtime allowance, leave and general damages
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
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.
Legal principles established
#- 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
#- 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.Dismissal of the entire petition with no orders as to costs
- Jurisdiction invoked
- Constitution of Kenya, 2010 (petition alleging contravention of Articles 41, 47, 236, 50; enforcement provisions not expressly cited)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.