Gitonga v Judicial Service Commission & 3 others (Petition E192 of 2021) [2023] KEELRC 2365 (KLR)
The bottom line
#Kenya's Employment Court upheld a Judiciary employee's dismissal over Kshs 720,000 in suspicious deposits, confirming employers can delegate disciplinary powers and need only prove misconduct on a balance of probabilities.
What this practically means
#Executive summary
#Key legal issues
#Delegation of disciplinary powers by the Judicial Service Commission
The JSC lawfully delegated disciplinary powers to the Human Resource Management Advisory Committee under sections 14 and 32 of the Judicial Service Act and the HR Manual; the 3rd and 4th respondents acted within their mandate
Section 14 permits delegation of functions necessary for day-to-day management to subcommittees or the secretariat, and section 32 requires a committee or panel for discipline. The court found nothing in the Constitution barring delegation, noting Commissioners transact business through committees. The HRMAC was therefore a properly constituted committee with disciplinary powers.
Discrimination and unequal treatment
Allegation of bias/discrimination against the petitioner unsustainable for want of evidence
The petitioner relied on comparisons with Lilian Wambui Waigwa and Rose Murima Wanjohi but did not avail the Audit Report or evidence of how the respondents dealt with those cases. Without essential particulars the respondents had nothing to disprove.
Substantive justification for termination
The 1st respondent had a valid and fair reason to terminate for gross misconduct (collusion to defraud Judiciary funds)
The petitioner admitted receipt of 15 deposits totalling Kshs 720,000 over nearly three years, retained portions, disbursed funds on instructions to mobile numbers, and later apologised for wrongdoing. No evidence supported the claim of innocent refunds, and collusion was inferable from her conduct.
Procedural fairness of the disciplinary process
The disciplinary process complied with article 47 of the Constitution, the Fair Administrative Action Act, the Judicial Service Act and the HR Manual
The petitioner received a notice to show cause, was granted extensions, was accorded 14 days' notice of hearing, participated in hearings (including virtual ones), could bring documents and witnesses, and had a right of appeal which she exercised. She never requested documents or cross-examination.
Legal principles established
#- The Judicial Service Commission may delegate its functions, including disciplinary functions, to subcommittees or the secretariat under section 14 of the Judicial Service Act
- For a termination to pass the fairness test there must be both substantive justification and procedural fairness
- In disciplinary proceedings the employer need not prove misconduct beyond reasonable doubt; a preponderance of probabilities suffices
Court orders
#- 1.The Petition is dismissed
- 2.No orders as to costs
- Jurisdiction invoked
- Article 23 of the Constitution of Kenya, 2010 (constitutional petition for enforcement of fundamental rights and freedoms)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gitonga v Judicial Service Commission & 3 others (Petition E192 of 2021) [2023] KEELRC 2365 (KLR)", Case Analysis (2023). Petition (filed December 1, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2365/eng@2023-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.