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ELRCPartially AllowedPetition dated 13th September 2021 (ELRC, Nairobi)

Oboge v Judicial Service Commission (Cause E145 of 2021) [2022] KEELRC 321 (KLR)

Employment and Labour Relations Court
24 March 2022
9,649 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~39 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled the Judiciary unfairly dismissed an ICT officer without a proper investigation, ordered his reinstatement with full back pay.

What this practically means

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Executive summary

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Fred Oboge, an ICT Officer employed by the Judiciary, petitioned the ELRC challenging his dismissal on 27th March 2019 following disciplinary proceedings over alleged conflict of interest in Tender No. JUD/028/2016-17. The allegations stemmed from a meeting with Eric Okeyo of Bedrock Security Services, a bidder, who made the claims in an affidavit before the Public Procurement Administrative Review Board. The Petitioner argued breach of natural justice, absence of investigation contrary to Rule 25 of the Third Schedule to the Judicial Service Act, unfair administrative action under Article 47 and the Fair Administrative Actions Act, and sought quashing, compensation and reinstatement. The Respondent maintained there was no mandatory pre-charge inquiry, that the process was fair, and that the dismissal was for a valid reason. The Court framed four issues and held that the word 'may' in Rule 25(1) makes an inquiry by the Chief Justice permissive, but that an investigation under Rule 25(3) was mandatory and was never conducted - a disciplinary hearing is not an investigation. Substantively, the dismissal lacked justification because Mr. Okeyo, the sole source of the allegations, neither recorded a statement nor testified, and his PPARB affidavit was untested by cross-examination. Procedurally, the process was unfair, compounded by an inordinately long interdiction. The Court set aside the dismissal, ordered reinstatement or equivalent deployment with back pay and benefits, refused compensation (compensation and reinstatement being incompatible), and made no order as to costs.

Questions the Court framed

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

  1. 1.Whether there is a legal requirement for inquiry or investigation by the Chief Justice
  2. 2.Whether the Petitioner's dismissal was fair or unfair/unlawful
  3. 3.Whether the nonattendance of Mr. Okeyo was fatal to the disciplinary proceedings
  4. 4.Whether the Petitioner is entitled to the reliefs sought

Key legal issues

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01

Inquiry under Rule 25(1) of the Third Schedule to the Judicial Service Act

Holding

The Chief Justice was not obligated to conduct an inquiry; the word 'may' is permissive, and seeking information from the Petitioner amounted to an inquiry.

Reasoning

The Court distinguished 'inquiry' in Rule 25(1) from 'investigation' in Rule 25(3), holding the former optional and the latter mandatory. Black's Law Dictionary definitions were adopted, and the Respondent's letter requiring the Petitioner to explain his role satisfied the permissive inquiry requirement. Authority on the permissive 'may' was applied.

p. 9
02

Substantive justification for dismissal

Holding

The Respondent failed on a balance of probabilities to show a valid and fair reason for dismissal, since the core witness Mr. Okeyo neither recorded a statement nor testified.

Reasoning

The single charge of gross misconduct rested entirely on Mr. Okeyo's allegations. The two witnesses heard did not implicate the Petitioner. Reliance on the Okeyo affidavit filed before the PPARB was disingenuous, as it was not produced as an exhibit in the disciplinary hearing and was never tested by cross-examination.

p. 12
03

Procedural fairness and want of investigation

Holding

The dismissal was procedurally unfair because no investigation was conducted as mandated by Rule 25(3), and the core witness was dispensed with without cogent reasons.

Reasoning

The Court held that a disciplinary hearing is not an investigation contemplated by Rule 25(3) or the HR Manual paragraph D.7.3. The PPARB had expressly directed an investigation, yet only a 56-minute hearing occurred. The adjournments to secure Mr. Okeyo showed his evidence was crucial, yet the Respondent failed to summon him and dispensed with his attendance without factual justification, breaching Article 47 and the Fair Administrative Actions Act.

p. 15
04

Remedies: reinstatement versus compensation

Holding

Compensation was refused but reinstatement (or deployment in the alternative) was granted, being practicable and within the three-year limit.

Reasoning

Following Kenya Broadcasting Corporation v Geoffrey Wakio, compensation and reinstatement cannot be awarded simultaneously. Reinstatement was held practicable: the Petitioner had a clean record, wished to continue serving, had served about nine years, and the Judiciary needs human capital. Section 12(3)(vii) of the ELRC Act permitted the order within three years of dismissal.

p. 18

Legal principles established

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  • The word 'may' in Rule 25(1) of the Third Schedule to the Judicial Service Act makes an inquiry by the Chief Justice optional, while Rule 25(3) makes an investigation by the Commission mandatory if disciplinary proceedings continue; a disciplinary hearing is not an investigation.
  • A termination must pass both the substantive justification and procedural fairness tests under Sections 41, 43, 45 and 47(5) of the Employment Act.
  • Dismissal founded on allegations made by a complainant who never recorded a statement or testified, and whose affidavit was not tested by cross-examination, lacks a substratum.
  • Reinstatement is a discretionary remedy, not an automatic right, and is subject to the three-year limit in Section 12(3)(vii) of the ELRC Act.

Court orders

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  1. 1.The proceedings and determination to dismiss the Petitioner on 27th March 2019 were in contravention of the provisions of Constitution of Kenya 2010, Fair Administrative Actions Act and the Employment Act and were therefore unlawful and are hereby set aside
  2. 2.The Respondent is ordered to reinstate the Petitioner to his employment with immediate effect to the Office of ICT Officer in the ICT Directorate without loss of back pay salary and or benefits
  3. 3.In the alternative, the Respondent shall deploy the Petitioner to a position equivalent to ICT Officer without loss of back pay salary and/or benefits
  4. 4.There shall be no order as to costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(a) and 165(3) of the Constitution; Employment and Labour Relations Court Act

Relief refused

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Compensation for violation of fundamental rights and freedoms

Reliance on Kenya Broadcasting Corporation v Geoffrey Wakio that compensation and reinstatement cannot be granted simultaneously; other than delay, the Petitioner suffered no other prejudice

p. 17

Costs

There shall be no order as to 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.

the use of word 'may' by the provision suggests that the Chief Justice is not obligated to conduct an inquiry and seeking information from the Petitioner as was the case herein would amount to an inquiry, the Court so finds.
p. 9Permissive nature of inquiry under Rule 25(1), Third Schedule, Judicial Service Act
The Court is of the view that a disciplinary hearing is not an investigation as envisioned by Rule 25(3).
p. 13Distinction between disciplinary hearing and statutory investigation
it is the finding of the Court that the Respondent has not on a balance of probabilities shown that it had a valid and fair reason to dismiss the Petitioner from employment on 27th March 2018.
p. 12Failure of substantive justification
The veracity of his allegations against the Petitioner were not tested by cross examination and remain as such, allegations.
p. 15Uncorroborated and untested allegations of the absent complainant
(i) The proceedings and determination to dismiss the Petitioner on 27th March 2019 were in contravention of the provisions of Constitution of Kenya 2010, Fair Administrative Actions Act and the Employment Act and were therefore unlawful and are hereby set aside.
p. 18Final orders - dismissal set aside
(ii) The Respondent is ordered to reinstate the Petitioner to his employment with immediate effect to the Office of ICT Officer in the ICT Directorate without loss of back pay salary and or benefits.
p. 18Final orders - reinstatement with back pay
(iv) There shall be no order as to costs.
p. 18Final orders - costs

Issues in the judgment

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minor

Internal inconsistency in the date of dismissal: the Court repeatedly refers to the dismissal as occurring on 27th March 2018 although the pleadings and final orders state 27th March 2019.

minor

Conflicting dates of interdiction within the judgment: earlier passages state 12th April 2017, later passages state 12th February 2017.

minor

Duplicate paragraph numbering: paragraph 144 appears twice with different content.

minor

Typographical error citing 'Constitution of Kenya 2020' for Article 172(1)(c).

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, "Oboge v Judicial Service Commission (Cause E145 of 2021) [2022] KEELRC 321 (KLR)", Case Analysis (2022). Petition dated 13th September 2021 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/321/eng@2022-03-24

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