Muraya & 4 others v Judicial Service Commission (Employment and Labour Relations Cause E003 of 2022) [2023] KEELRC 2849 (KLR)
The bottom line
#The Employment Court ruled five Judiciary accountants unfairly fired over a malware fraud, ordering their reinstatement without loss of benefits.
What this practically means
#Executive summary
#Key legal issues
#Limitation - whether the 2nd Claimant's claim was time barred under section 90 of the Employment Act
The claim was not time barred; the cause of action accrued on 22nd December 2021 when the contract was terminated, not on the 2013 interdiction, and the suit filed on 7th January 2022 was within three years.
The action challenged the decision of 22nd December 2021 terminating the Claimants' contracts. Although the 2nd Claimant was interdicted in November 2013, interdiction is not termination. The suit was instituted on 7th January 2022, hardly one month after termination, hence within the three-year window prescribed by section 90 of the Employment Act.
Substantive fairness - whether the Respondent had valid grounds to terminate for negligence of duty
Termination was substantively unfair; the Respondent had no evidence supporting negligence, since its own forensic reports, the criminal trial judgment and its Disciplinary Committee showed the credentials were harvested by a malware.
At the time of issuing show-cause notices the Respondent possessed the criminal court's finding that the credentials were fraudulently extracted by malware, two forensic audit reports reaching the same conclusion, and a Disciplinary Committee report absolving the Claimants. No evidence on a balance of probabilities demonstrated recklessness or failure to secure credentials; the fraud was a cyber-crime attributable to system insecurity, not employee negligence.
Procedural fairness - failure to furnish preliminary reports and disregard of Disciplinary Committee recommendations
The process was procedurally flawed: the Respondent was obliged to supply the materials relied upon, and its departure from the Disciplinary Committee's exculpatory recommendations without according the Claimants representations breached fair administrative action.
Section 4(2)(g) of the Fair Administrative Action Act and regulation 23(1) of the Third Schedule to the Judicial Service Act entitled the Claimants to the documentary evidence relied upon. Together with section 41 of the Employment Act, these provisions protect employees. Discarding the Committee's recommendations adversely and without representations was irregular.
Delay - whether the nearly eight-year disciplinary process violated the right to expeditious administrative action
The delay of close to eight years in processing a distinct charge of negligence was, prima facie, a violation of the right to expeditious, efficient and procedurally fair administrative action under Article 47 and the Fair Administrative Action Act.
The Respondent had kept the internal process in abeyance pending the criminal trial on conspiracy, yet later asserted the charges were distinct; regulation 18(2) could not justify suspending a distinct disciplinary charge. The post-acquittal explanations (appointment of the Chief Justice, Covid-19) could not account for the delay during the pendency of the criminal case.
Remedy - whether reinstatement was appropriate
Reinstatement was granted; the Claimants were innocent, the Respondent was a large organization capable of reintegrating them, and they were still within the three-year timeframe.
Section 49 of the Employment Act requires consideration of the employee's wishes and practicability. The Judiciary is a large organization where friction would be minimal; the Claimants bore no complicity; the positions could not be deemed filled during interdiction, which was only a temporary bar. The order was made within the three-year statutory timeframe.
Legal principles established
#- An employer must have reasonable and genuine grounds to believe an employee is guilty of an infraction before terminating employment under section 43(2) of the Employment Act.
- Negligence requires evidence that the employee foresaw a risk of harm but recklessly failed to avoid it.
- An employee need not exhaust internal administrative appeals before challenging a termination decision in court, unless internal regulations provide otherwise.
- An employee facing disciplinary proceedings is entitled to be furnished with the information, materials and evidence to be relied upon before the disciplinary hearing.
- A radical departure from a Disciplinary Committee's recommendations with adverse consequences on employment requires an opportunity to make representations under the Fair Administrative Action Act.
- Interdiction is not termination of a contract of service but only a temporary bar, and time for purposes of limitation and reinstatement runs from termination.
Court orders
#- 1.A declaration that the Respondent's decision to terminate the Claimants' contracts of service was unlawful
- 2.Reinstatement of the Claimants to their previous positions without loss of benefits
- 3.Costs of the case awarded to those Claimants who were represented by counsel
- 4.Claimants not represented by counsel directed to recover the actual disbursements incurred in prosecuting the action
- Jurisdiction invoked
- Employment and labour relations jurisdiction under Article 162(2) of the Constitution; challenge to termination of employment under the Employment Act and Fair Administrative Action Act (as invoked in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muraya & 4 others v Judicial Service Commission (Employment and Labour Relations Cause E003 of 2022) [2023] KEELRC 2849 (KLR)", Case Analysis (2023). ELRC Cause (Nairobi) - not stated in full in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2849/eng@2023-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.