Atak v Judicial Service Commission (Employment and Labour Relations Cause 204 of 2015) [2025] KEELRC 245 (KLR)
The bottom line
#Kenya's Employment Court found the Judiciary unfairly dismissed its ICT Director without evidence at the disciplinary hearing, awarding him over Ksh. 8 million.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal was for a valid reason proved by the Respondent
The Respondent failed to prove valid reasons for the summary dismissal; no evidence was tabled at the disciplinary hearing and no evaluation of the charges against the Claimant's answers existed
Section 43(1) and (2) of the Employment Act places the burden on the employer to prove the reasons for termination. The special audit report forming the background to the charges was never availed to the Claimant, no complainant or witness presented the case against him, and no ICT expert report countered his technical explanations. There was no evaluation of the charges vis-à-vis the Claimant's responses, so the Respondent failed to discharge its statutory burden of proof.
Whether the Respondent followed a fair procedure in dismissing the Claimant
The procedure was flawed and unfair; the process violated sections 41, 43 and 45 of the Employment Act
The NTSC did not inform the Claimant of his right to be accompanied by a colleague or representative or to call witnesses. The audit reports relied on were not availed to him. The charges were technical in nature, yet no expert evidence was presented and no reasons were given for the adverse findings on each charge. The hearing was reduced to requiring the Claimant to repeat and prove his written explanations, defeating the essentials of procedural fairness under section 41.
Entitlement to reliefs
The Claimant was entitled to notice pay, withheld half salary during interdiction, six months' compensation, leave pay for 90 days and a certificate of service; reinstatement, re-engagement and the mortgage-interest refund were refused
Having found the dismissal unlawful and unfair, the court applied section 36 on notice pay, held the interdicted employee entitled to full withheld salary following the Grace Gathoni Murithi and Bryan Mandila Khaemba decisions, and awarded six months' compensation guided by Kenfreight v Nguti, considering the Claimant's 2½ years of service, loss of livelihood and the publicity accompanying the dismissal. Leave pay was granted as no evidence of payment was adduced by the Respondent.
Legal principles established
#- An employer bears the burden of proving, on a balance of probability, valid and fair reasons for summary dismissal and that a fair procedure was followed, irrespective of any other statute regulating the employment
- A disciplinary process at which no oral or documentary evidence is presented against the employee, and at which the employee is simply called upon to prove his innocence, fails the test of procedural fairness and cannot sustain a summary dismissal
- An employer is obliged under the rules of natural justice to voluntarily furnish the employee with documents, such as audit reports, that formed the basis of the charges, whether or not the employee specifically requests them
- An employee on interdiction or suspension is entitled to full salary for the period if the employer fails to conclude the disciplinary process expeditiously
Court orders
#- 1.Judgment entered for the Claimant against the Respondent of Ksh. 669,289.00 in lieu of one-month notice
- 2.Ksh 1,514,299.75 for withheld salary for the period 31st March 2014 to 17th December 2014
- 3.Compensation of the equivalent of six (6) months' gross salary for the unlawful and unfair dismissal in the sum of Kshs. 4,015,734
- 4.Provision of a certificate of service within 30 days of judgment
- 5.Payment in lieu of 90 days leave not taken in the sum of Ksh. 2,0007,866.70
- 6.Interest at court rates from date of judgment till payment in full
- 7.Costs of the suit
- Jurisdiction invoked
- Original employment jurisdiction under the Employment Act, 2007 (sections 36, 41, 43, 45, 47(5) and 49) read with the Judicial Service Act, 2011; reliefs sought under sections 49 and related provisions of the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Atak v Judicial Service Commission (Employment and Labour Relations Cause 204 of 2015) [2025] KEELRC 245 (KLR)", Case Analysis (2025). Not stated in judgment (Employment and Labour Relations Court cause filed 18th February 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/245/eng@2025-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.