Temu v Judicial Service Commission & another (Employment and Labour Relations Cause E032 of 2022) [2023] KEELRC 3361 (KLR)
The bottom line
#Kenya's Employment Court reinstated a Judiciary employee, ruling his dismissal unfair because the disciplinary charge didn't match the dismissal reason.
What this practically means
#Executive summary
#Key legal issues
#Whether there were valid reasons to dismiss the claimant
No valid reasons were established because the accusation in the disciplinary proceedings related to Kshs 21,500 while the dismissal letter cited fraud of Kshs 270,000.
The court traced the chronology: the claimant was charged with and suspended over Kshs 21,500, and the invitation to the disciplinary hearing referred to the 24th October 2019 suspension letter concerning Kshs 21,500. Yet the dismissal letter found him culpable of colluding to defraud the Judiciary of Kshs 270,000. The court held the charge must correspond to the final finding of culpability, and the discrepancy rendered the validity of the reasons inconclusive.
Whether the claimant was subjected to a fair disciplinary process
The process was unfair: the JSC dismissed the claimant without hearing him after the committee's report, and failed to supply documentary evidence relied upon despite request.
The claimant was heard by the Human Resource Management Advisory Committee, but the JSC, which made the final dismissal decision, never summoned him or afforded him a chance to be heard on the report. He also requested minutes and documents relied upon for his appeal and none were supplied, contrary to section 23(1) of the Third Schedule of the Judicial Service Act, section 41 of the Employment Act and Article 50 of the Constitution.
Whether the claimant is entitled to the remedies sought
Reinstatement with back pay from the date of dismissal (4/1/2021) without loss of salary benefits, taking that date as the effective dismissal date, was granted.
The court noted the claimant had served the Judiciary for 22 years and, given the unfairness and the difficulty of finding alternative employment at his age, reinstatement with back pay was the only adequate remedy. The court rejected the retrospective backdating of the dismissal to the suspension date, fixing the dismissal date as 4 January 2021.
Legal principles established
#- The charge in disciplinary proceedings must correspond to the final finding of culpability; a discrepancy between the accusation in the show-cause/suspension letters and the ground in the dismissal letter invalidates the reason for dismissal.
- A decision-making authority (here the JSC) that receives a disciplinary committee's report recommending dismissal must hear the employee before dismissing him; dismissing without a hearing violates fair hearing under section 41 of the Employment Act and section 23(1) of the Third Schedule of the Judicial Service Act.
- Backdating a dismissal letter to a date earlier than the actual decision date is prejudicial and impermissibly retrospective.
Court orders
#- 1.Declaration that the claimant's dismissal was unfair and unjustified
- 2.Reinstatement of the claimant with effect from the date of judgment with back pay with effect from the date of dismissal (4/1/2021) without loss of salary benefits
- 3.Respondents to pay costs of the case
- Jurisdiction invoked
- Employment and Labour Relations Court Act, section 12(3)(vii); Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Temu v Judicial Service Commission & another (Employment and Labour Relations Cause E032 of 2022) [2023] KEELRC 3361 (KLR)", Case Analysis (2023). Memorandum of claim dated 15th August, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3361/eng@2023-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.