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ELRCPartially AllowedPetition dated 24th November 2022 (Nakuru)· [2023] KEELRC 2282 (KLR)

Cheruiyot v Judicial Service Commission & another (Petition 2 of 2021) [2023] KEELRC 2282 (KLR)

Employment and Labour Relations Court
28 September 2023
DNDavid Nderitu
6,865 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court reinstated a judiciary worker fired over a voided corruption case, ordering full back pay because his employer never ran its own fair investigation.

What this practically means

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Executive summary

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The Petitioner, a former Judiciary storekeeper/court assistant at Kericho Law Courts, was arrested in 2015 by EACC, charged with soliciting and receiving a Kshs 20,000 bribe, interdicted on half pay, convicted in 2017, and suspended. The High Court at Nakuru (Ngugi J) set aside the conviction and ordered retrial after finding the EACC investigations null and void because the commission was not properly constituted; the retrial was withdrawn under Section 87(a) of the Criminal Procedure Code. The Judicial Service Commission nonetheless convened a virtual disciplinary hearing on 25th August 2020 based on the same charges and summarily dismissed him by letter dated 4th January 2021, backdated to 4th September 2015. The court held that although presented as a constitutional petition, the matter was essentially a statutory employment claim since no specific constitutional breaches were pleaded or proved, applying the Anarita Karimi Njeru threshold. On the merits, the court found the dismissal lacked both substantive and procedural fairness: the respondents relied wholly on EACC evidence declared a nullity without conducting independent investigations, failed to disclose evidence, and did not avail minutes of the disciplinary hearing, JSC deliberations or the appeal. The backdating of the dismissal was read as malicious. The court declared the dismissal wrongful, unfair and unlawful, ordered immediate reinstatement without loss of benefits, and payment of all withheld salary and benefits from 4th September 2015 to reinstatement within 30 days. Damages were refused as duplicative of reinstatement, and costs were awarded to the Petitioner. All other prayers, including the constitutional declarations, were denied.

Key legal issues

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01

Whether the petition should be treated as a constitutional petition or an ordinary cause

Holding

The court applied constitutional avoidance in effect, treating the matter as an ordinary employment cause since no specific constitutional violations were pleaded or proved and remedies were available under statute.

Reasoning

The court noted that constitutional violations must be specifically pleaded and proved per Anarita Karimi Njeru and Mumo Matemu. The petition lacked specific proof of breach of Articles 27, 28, 41 and 50 and lacked a prayer for constitutional damages. As respondents fully participated without prejudice, the court addressed substance over form and determined the claim under the Employment Act and ELRC Act.

p. 8
02

Whether the dismissal was wrongful, unfair and unlawful in substance

Holding

The dismissal lacked a valid reason: the respondents relied solely on EACC investigations and a conviction declared null and void by the High Court, without conducting independent investigations.

Reasoning

The charges forming the basis of dismissal replicated criminal charges that had been set aside with the retrial withdrawn under Section 87(a) CPC. Since the EACC investigations were a nullity, the respondents were obliged to conduct independent investigations and avail evidence; they did not. Mere suspicion could not found a genuine belief in gross misconduct, so the substantive limb of fairness failed.

p. 10
03

Whether the disciplinary procedure was fair

Holding

Procedural fairness under Sections 41 and 45 of the Employment Act was denied: evidence was not disclosed, minutes and records of the hearing, the decision and the appeal were not availed.

Reasoning

The respondents failed to disclose the evidence they would rely on, called no witnesses at the disciplinary hearing, and did not avail the minutes of the committee, the recommendation letter, the JSC meeting minutes or the appeal records. The absence of these records made it impossible to verify that a fair hearing occurred, breaching Sections 41 and 45 of the Employment Act.

p. 11
04

Whether reinstatement and withheld salary should be granted

Holding

Reinstatement without loss of benefits and payment of all withheld salary from 4th September 2015 were granted; the backdated dismissal was found malicious.

Reasoning

Reinstatement was within the three-year window under Section 12(3)(vii) ELRC Act and posed no hardship to the 1st Respondent. The backdating of dismissal to the interdiction date was found capricious and intended to deprive the Petitioner of accrued benefits, justifying payment of the full salary arrears from interdiction to reinstatement.

p. 12

Legal principles established

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  • An employer must establish both substantive and procedural fairness for a dismissal to be lawful; where the employer relies on investigations declared a nullity, it must carry out independent investigations to found a valid reason.
  • Reinstatement is available under Section 12(3)(vii) of the ELRC Act where sought within three years of dismissal and is practicable.
  • Substance prevails over form; a claim dressed as a constitutional petition without proved constitutional violations may be determined under the applicable statutes.

Court orders

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  1. 1.A declaration that the dismissal of the Petitioner by the Respondents was wrongful, unfair, and unlawful for lack of both substantive and procedural fairness
  2. 2.An order directing the Respondents to immediately reinstate the Petitioner in the employment of the 1st Respondent without loss of benefits
  3. 3.An order directing the Respondents to pay the Petitioner all withheld salary arrears and other benefits accrued from 4th September 2015 to the effective date of reinstatement, which shall be within 30 days of the judgment
  4. 4.The Petitioner awarded the costs of the petition
  5. 5.All other prayers denied

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2, 19-27, 22, 23, 27, 28, 40, 41, 47, 48, 50, 171, 172
  • Employment ActSections 35, 36, 38, 40, 41, 43(2), 44, 45, 46, 47, 48, 49(1)(c)
  • Employment and Labour Relations Court ActSection 12(3)(vii)
  • Judicial Service ActParagraph 18 of the Third Schedule
  • Anti-Corruption and Economic Crimes ActSections 39(a), 48(1)
  • Criminal Procedure CodeSection 87(a)

Cases cited (9)

  • KKB v SCM & 5 others
    (2022) eKLR
  • Anarita Karimi Njeru v Republic (No 1)
    (1979) KLR 154
  • Mumo Matemu v Trusted Society of Human Rights Alliance
    (2014) eKLR
  • Mary Chemweno v Kenya Pipeline Company Limited
    (2014) eKLR
  • Walter Ogal Anaro v Teachers Service Commission
    (2013) eKLR
  • Janet Nyandiko v Kenya Commercial Bank Limited
    (2017) eKLR
  • Kenfreight (EA) Limited v Benson K. Nguti
    (2019) eKLR
  • Judicial Service Commission v Joseph Ritho Ndururi
    (2021) eKLR
  • Judith Achieng Nyagol v Judicial Service Commission & another
    (2021) eKLR
Jurisdiction invoked
Articles 22 and 23 of the Constitution read with the Employment and Labour Relations Court 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, "Cheruiyot v Judicial Service Commission & another (Petition 2 of 2021) [2023] KEELRC 2282 (KLR)", Case Analysis (2023). Petition dated 24th November 2022 (Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2282/eng@2023-09-28

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