Njuki v Independent Electoral and Boundaries Commission (Constitutional Petition E021 of 2023) [2023] KEELRC 2026 (KLR)
The bottom line
#A Kenyan court threw out an IEBC employee's dismissal because the disciplinary process took too long and lacked quorum, ordering his full reinstatement with back pay.
What this practically means
#Executive summary
#Key legal issues
#Whether failure to exhaust internal appeal mechanisms defeats the petition
No - the issue was already resolved in the petitioner's favour in the ruling of 10.03.2023 and would not be revisited
The Court held the exhaustion issue settled by its own earlier ruling and declined to revisit it. The respondent argued the petitioner should first pursue the internal appeal under sections 12.14 and 12.15 of the HR manual, but the petitioner's position that the mechanism was inapplicable because the commissioners' term had expired had already prevailed in the interlocutory ruling.
Whether the dismissal followed a lawful, reasonable and fair procedure
No - the procedure was unfair: there was inordinate 18-month delay contrary to the manual's six-month rule, breach of quorum requirements, and implied waiver of the disciplinary process
Section 12.1.4 of the manual required disciplinary cases to be concluded within six months; the petitioner was summoned after 18 months with no exceptional circumstances urged. The respondent also failed to produce minutes and discovery documents, so on a balance of probability the decisions of 03.01.2023 and 06.01.2023 were ultra vires for want of quorum. The respondent's silence, re-designation, transfer and certificate of appreciation amounted to implied abandonment of the disciplinary process.
Whether the petitioner was discriminated against on grounds of age and ethnicity
No - the allegation was not established for want of particulars and sufficient evidence
The petitioner alleged that seven officials implicated in illegal voter migration and from North Eastern region were reinstated while he was dismissed. The Court found it was not shown that the reinstated officers shared the same ethnicity as the commissioners, or a different ethnicity from the petitioner. The facts remained at large and the Court declined to delve further for want of due particulars.
Whether dismissal was a proportionate sanction
No - the dismissal was excessive and unjustified given the petitioner's unrebutted explanation, remorsefulness and the respondent's implied waiver
The respondent failed to show that the failure to declare conflict of interest adversely affected it, since the taxes were eventually remitted and no loss was urged. Weighing proportionality, the unrebutted explanation of oversight and work pressure, the clean record of service and the implied waiver, the dismissal was excessive and unjustified.
Whether reinstatement was practicable under section 49(4) of the Employment Act
Yes - no established bar to reinstatement; the employment relationship had not broken down and the position had not been filled
The respondent argued the relationship had broken down, but the Court found that untrue: the parties continued harmoniously after the show-cause letter, with the petitioner re-designated, transferred and complimented for outstanding performance. It was not said the position had been filled, and the petitioner had a clean record.
Legal principles established
#- A disciplinary process not concluded within the employer's prescribed timeframe, followed by conduct inconsistent with continued pursuit of discipline, may amount to implied abandonment or waiver of the disciplinary process
- Article 50(1) fair hearing protections extend to civil, criminal and quasi-criminal disputes including employment disciplinary processes, requiring expansive construction
Court orders
#- 1.Declaration that the respondent can only formally communicate a decision of the Commission when it is lawfully constituted and any purported decision communicated during the absence of the Commissioners is unconstitutional null and void
- 2.Declaration that the purported disciplinary process the petitioner underwent was unlawful, unconstitutional, null and void and violated his right to fair labour practices
- 3.Declaration that the 18-month delay in commencing the disciplinary hearing after the show-cause letter was unconstitutional and rendered the hearing of 03.01.2023 and all subsequent actions unconstitutional, null and void
- 4.Judicial review order of certiorari quashing the decision captured in the dismissal letter dated 19.01.2023
- 5.Judicial review order of mandamus compelling the respondent to reinstate the petitioner to gainful employment in the same position as at dismissal date without break in service and with full back payment of all due remuneration and benefits payable by 01.10.2023, failing interest at court rates; petitioner to report to the CEO for deployment not later than 01.09.2023
- 6.Conservatory order restraining the respondent from taking disciplinary action against the petitioner or interfering with his employment on account of the matters leading to the impugned dismissal, including retaliation, reprisal or victimization for filing the petition
- 7.Respondent to pay the petitioner's costs of the petition
- Jurisdiction invoked
- Constitutional petition under the Bill of Rights (Articles 19, 20, 25, 41, 47, 50) and Employment Act - first-instance petition; Article 50(1) fair hearing invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njuki v Independent Electoral and Boundaries Commission (Constitutional Petition E021 of 2023) [2023] KEELRC 2026 (KLR)", Case Analysis (2023). Petition dated 03.02.2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2026/eng@2023-08-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.