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ELRCDismissedNot stated in the judgment text provided· [2023] KEELRC 797 (KLR)

Washika v Judicial Service Commission (Cause 1080 of 2018) [2023] KEELRC 797 (KLR)

Employment and Labour Relations Court
28 March 2023
5,203 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan magistrate dismissed for misconduct lost her case because refunding the money was treated as admitting the charges.

What this practically means

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Executive summary

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The claimant, a judicial officer appointed in 2009 and promoted to Senior Resident Magistrate, was acting Principal Magistrate at Lodwar Law Courts when an internal audit revealed irregular daily subsistence allowances totalling Kshs.745,280, including DSA paid for attending meetings of the Judicial Staff Superannuation Scheme and the Kenya Magistrates and Judges Association, entities outside the Judiciary, and overlapping DSA payments. By letters dated 15th August 2016 she was charged with gross misconduct and interdicted, and given 21 days to respond. Her only response, by letter dated 2nd September 2016, was to refund the full sum with a banker's cheque, which she did following directions from the Chief Registrar of the Judiciary and the auditor. She was heard orally before the JSC Human Resource Management Committee on 24th January 2017 and summarily dismissed on 22nd February 2017. She sued seeking declarations of unfair and unlawful termination, reinstatement with promotion, 12 months' compensation, general damages and costs, contending breach of Article 47, the Fair Administrative Action Act and Section 41 of the Employment Act, and bias from appearing before the same panel at her promotion interview. The respondent maintained the dismissal was justified gross misconduct. The court held that the claimant, having been notified of the charges and given an opportunity to respond, squandered that opportunity by only refunding the monies, which amounted to admission; refund did not cure the gross misconduct. The claim was dismissed with each party bearing own costs.

Key legal issues

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01

Fair hearing in disciplinary proceedings under Section 41 of the Employment Act

Holding

The claimant was notified of the charges, given 21 days to respond, invited to an oral hearing and heard; her only response was to refund the monies, which amounted to an admission, so no procedural unfairness arose

Reasoning

The court traced the show-cause letter of 15th August 2016 with its 21-day response window, the interdiction letter, the claimant's reply of 2nd September 2016 attaching a refund, and the oral hearing before the JSC Committee on 24th January 2017 where she confirmed awareness of the charges and apologised. The refund plus apology constituted admission of the charges; the employer's obligation under Section 41 was satisfied and the claimant's failure to contest the allegations meant she squandered the internal mechanism.

p. 9
02

Whether the promotion interview and disciplinary hearing before the same panel amounted to bias or double jeopardy

Holding

The court did not find malice or bias; the claimant's admission and refund could not justify a claim that the respondent acted with malice

Reasoning

The claimant argued she appeared before the same Commissioners (Hon. Justice Muchelule and Hon. Justice Warsame) at the promotion interview and the disciplinary hearing, indicating pre-judgment. The respondent maintained the two processes were independent. The court held that given the claimant's admission and refund, the disciplinary hearing was merely to seek clarifications, and no malice was established.

p. 8
03

Whether gross misconduct justified summary dismissal notwithstanding refund of the monies

Holding

Refund of irregularly paid monies did not cure the gross misconduct; summary dismissal was a lawful sanction

Reasoning

The claimant admitted receiving DSA for attending JSSS and KMJA meetings, entities outside the Judiciary, contrary to a CRJ memo, and receiving overlapping DSA payments totalling large sums. She refunded Kshs.745,280 and apologised, accepting that public money was misused under her watch. The court held the admission and refund confirmed the charges rather than negating them, so the sanction of summary dismissal under Section 45(2) of the Employment Act and Article 172(1)(c) of the Constitution and the Judicial Service Act could not be faulted.

p. 9

Legal principles established

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  • An employee issued with notice of charges and given time to respond must give her explanation or defence; failing to do so, she cannot later claim unfair termination on grounds she was not heard
  • Section 41 of the Employment Act imposes mutual duties: the employer must notify and outline the charges, and the employee must make representations before a sanction issues

Court orders

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  1. 1.The claim is found without merit and is dismissed
  2. 2.Each party shall bear own costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; Employment and Labour Relations Court Act); claims framed on Article 47 of the Constitution and the Fair Administrative Action Act

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, "Washika v Judicial Service Commission (Cause 1080 of 2018) [2023] KEELRC 797 (KLR)", Case Analysis (2023). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/797/eng@2023-03-28

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