Waka v Judicial Service Commission & 3 others (Petition E190 of 2021) [2023] KEELRC 1569 (KLR)
The bottom line
#A Kenyan court ruled a Judiciary accountant's dismissal followed the wrong process but refused compensation because the financial misconduct was proven.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Chief Registrar and Director of Human Resource to initiate disciplinary proceedings
Neither the 2nd nor 3rd Respondent had disciplinary power over the Petitioner; disciplinary power is delegated by the Judicial Service Act to the Chief Justice alone and cannot be sub-delegated
The Court found the disciplinary procedure in the Manual created a parallel, discordant process inconsistent with the 3rd Schedule. The Chief Registrar's Section 8 mandate over day-to-day administration does not extend to initiating disciplinary proceedings. No instrument of delegation in favour of the 2nd Respondent was produced; the letters to show cause cited the Manual and Employment Act rather than the Judicial Service Act.
Status and capacity of the Human Resource Management Advisory Committee (4th Respondent)
It is a Committee contemplated under the Judicial Service Act but cannot take cognizance of charges not originated by the Chief Justice; its recommendation of dismissal was in excess of its mandate, and it lacks capacity to be sued
Section 32 requires the Commission to constitute a Committee or Panel for discipline, governed by paragraph 25 of the 3rd Schedule. The record did not show the matter was placed before the 4th Respondent through that procedure. Being unincorporated, it cannot sue, be sued, contract or hold property; only the Commission is the proper corporate respondent.
Procedural fairness of the dismissal
Procedure was unfair and unlawful because the disciplinary process bypassed the Chief Justice and followed the Manual rather than the 3rd Schedule
The Respondents did not explain why the Chief Justice had no role, nor persuade the Court that the Manual conforms to the 3rd Schedule. Officers facing discipline are entitled to know from inception which procedures apply and who has disciplinary control over them.
Substantive justification for termination
The Commission established valid reason under Sections 43 and 47(5) of the Employment Act; the Petitioner was implicated in grave financial improprieties which he substantially admitted
Final Audit Reports for July 2015 to September 2018 implicated the Petitioner in alteration of receipts, under-banking, failure to surrender deposits, irregular refunds and involving relatives and staff in deposits. His responses were frivolous; he admitted irregularities but blamed others. As Accountant In-Charge, the Employer genuinely and validly believed grounds existed for termination.
Remedies
Although dismissal was procedurally unfair, no substantive relief was granted because the gravity of the misconduct and the economic harm to the Judiciary outweighed the procedural harm
The Court held that where procedure is flawed the tribunal must still weigh the gravity of the offence, admissions by the employee and loss sustained. The Petitioner admitted massive fraud occurred under his watch; his defence was that he was not solely responsible. The Court declined reinstatement and damages.
Legal principles established
#- Where a statute delegates a function, the delegation must be strictly complied with; a delegate cannot re-delegate disciplinary power (delegatus non potest delegate)
- A Human Resource policy manual cannot amend or repeal a statute
- A Committee or Panel under Section 32 of the Judicial Service Act and paragraph 25 of the 3rd Schedule can only take cognizance of disciplinary matters originated by the Chief Justice
- The Committee or Panel may not recommend punishment; punishment is determined by the Commission
Court orders
#- 1.The Petition against the 3rd and 4th Respondents is declined
- 2.Declared that dismissal of the Petitioner from Judicial Service was procedurally unfair and unlawful
- 3.Declared that the disciplinary procedure under the Judiciary Human Resource Policies and Procedures Manual is inconsistent with the disciplinary procedure applicable to Judicial Officers and Judicial Staff under the Judicial Service Act
- 4.No order on the costs
- Jurisdiction invoked
- Articles 22 and 258 of the Constitution (enforcement of Bill of Rights); Employment and Labour Relations Court jurisdiction over employment and fair labour practices
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waka v Judicial Service Commission & 3 others (Petition E190 of 2021) [2023] KEELRC 1569 (KLR)", Case Analysis (2023). Petition (number not stated on judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1569/eng@2023-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.