Gatheru & another v County Government of Tharaka Nithi & 5 others (Cause E059 of 2021) [2024] KEELRC 595 (KLR)
The bottom line
#Two Kenyan county employees won millions in withheld salary after being cleared in court, but their employer can still discipline them for the same allegations.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to half salary and allowances during interdiction
Claimants entitled to half basic salary, full house allowance and medical allowance/insurance for the entire interdiction period and to the withheld half salary after acquittal
The interdiction letters expressly provided for half salary. The PSC by letter dated 14th July 2021 allowed the appeal and directed payment of withheld half salary from 26th September 2017. Section D.31 of the County Public Service Human Resource Manual supports the entitlement. Once acquitted, the withheld half pay became payable since the employer had stopped the employees from working.
Whether acquittal bars internal disciplinary process (double jeopardy)
No – acquittal does not insulate an employee from internal disciplinary process; claimants obliged to submit to it
Criminal and disciplinary processes are distinct with different standards of proof. Article 50(2)(o) protects only against repeat criminal prosecution. Internal discipline is barred only where punishment was already final or an unconditional pardon given. The claimants cited no law or contractual provision insulating them from internal process after acquittal.
Reinstatement after acquittal
Claimants entitled to reinstatement to their positions with full salary effective 1st October 2021, or deployment to equivalent positions if filled
The claimants requested reinstatement after acquittal but were ignored. Under Regulation D.31(1)(g) the respondents were obliged to lift the interdiction but did not. No evidence showed the positions were substantively filled during the interdiction, so reinstatement was granted.
The respondents' counterclaim for Kshs.11,584,402/11,854,402
Counterclaim fails – not proved on a balance of probability
The only support was a payroll extract from the Staff Audit Report of September 2017, which was not an investigation report and merely recommended investigations. No Board member testified and no evidence showed the recommended investigations were done, nor that the 24 persons were ghost workers or that the claimants added them to the payroll.
Legal principles established
#- The rule against double jeopardy under Article 50(2)(o) of the Constitution applies only to criminal proceedings, not to internal disciplinary proceedings, which are distinct processes with different standards of proof
- Double jeopardy applies to disciplinary proceedings only where a final punishment has been meted or an unconditional pardon given for the same infraction
- An employer is not bound by the outcome of criminal proceedings against an employee and may institute internal disciplinary process independently
- An employee interdicted on half pay who is not dismissed or convicted is entitled to the withheld half salary upon acquittal, because the employer stopped the employee from working
Court orders
#- 1.Declaration that the claimants are entitled to immediate payment of gross salary for the period they were on interdiction until now
- 2.Respondents directed to reinstate the claimants to their respective positions or deploy them to equivalent positions within the County Public Service
- 3.1st claimant awarded gross salary from 26th September 2017 up to December 2021 being Kshs.6,735,404.00
- 4.2nd claimant awarded Kshs.860,000.00 for the same period
- 5.Each claimant further awarded gross salary plus increments from 1st October 2021 when they were acquitted, subject to any sum awarded under (c) and (d)
- 6.Award of damages subject to statutory deductions based on tax rates applicable from 2017 to date
- 7.Claimants awarded costs of the suit plus interest at court rates from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes between county employees and their employer (fair labour practices and Article 236 of the Constitution invoked in submissions)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gatheru & another v County Government of Tharaka Nithi & 5 others (Cause E059 of 2021) [2024] KEELRC 595 (KLR)", Case Analysis (2024). ELRC Cause (Nyeri) – judgment delivered 8th March 2024 (claim by 1st and 2nd claimants; related ELRC Cause E022 of 2021 referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/595/eng@2024-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.