Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in judgment (Employment and Labour Relations Court cause filed 18th February 2015)· [2025] KEELRC 245 (KLR)

Atak v Judicial Service Commission (Employment and Labour Relations Cause 204 of 2015) [2025] KEELRC 245 (KLR)

Employment and Labour Relations Court of Kenya
30 January 2025
12,666 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~51 min to read original · ~4 min brief

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

#
The Claimant, formerly Director of Information Communication and Technology at the Judiciary, was summarily dismissed by the Judicial Service Commission with effect from 17th December 2014 after disciplinary proceedings arising from four charges: failure to ensure security of Judiciary ICT systems, neglect of duty regarding Dew CIS Solutions Ltd, incompetence over the 'Faini chap chap' project, and failure to ensure value for money in procurements. He sought declarations that the dismissal was wrongful and unlawful, withheld half salary, terminal dues, 12 months' compensation, notice pay, leave pay, a certificate of service and, in the alternative, reinstatement or re-engagement. The court framed three issues: valid reasons, fair procedure and entitlement to reliefs. It held that under sections 43, 45 and 47(5) of the Employment Act the employer bore the burden of proof, and found that no oral or documentary evidence was presented at the disciplinary hearing, the special audit report underpinning the charges was never availed to the Claimant, no ICT expert testified, the hearing notice did not disclose rights to representation or witnesses, and no reasons were given for the adverse findings. The dismissal was therefore unlawful and unfair. The court awarded notice pay of Ksh. 669,289, withheld salary of Ksh. 1,514,299.75, six months' compensation of Ksh. 4,015,734, leave pay for 90 days, a certificate of service within 30 days, interest and costs. The mortgage-interest refund claim was refused as unpleaded, and reinstatement and re-engagement were dismissed as untenable due to passage of time.

Key legal issues

#
01

Whether the summary dismissal was for a valid reason proved by the Respondent

Holding

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

Reasoning

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.

p. 18
02

Whether the Respondent followed a fair procedure in dismissing the Claimant

Holding

The procedure was flawed and unfair; the process violated sections 41, 43 and 45 of the Employment Act

Reasoning

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.

p. 20
03

Entitlement to reliefs

Holding

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

Reasoning

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.

p. 22

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. 1.Judgment entered for the Claimant against the Respondent of Ksh. 669,289.00 in lieu of one-month notice
  2. 2.Ksh 1,514,299.75 for withheld salary for the period 31st March 2014 to 17th December 2014
  3. 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. 4.Provision of a certificate of service within 30 days of judgment
  5. 5.Payment in lieu of 90 days leave not taken in the sum of Ksh. 2,0007,866.70
  6. 6.Interest at court rates from date of judgment till payment in full
  7. 7.Costs of the suit

Authorities

#

Legislation

  • Employment Act, 2007Section 43(1) and (2)
  • Employment Act, 2007Section 45(1) and (2)
  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 36
  • Employment Act, 2007Section 49(1) as read with 49(4)
  • Judicial Service Act, 2011Section 54(4) Part IV Third Schedule; paragraphs 15 and 25 of the Third Schedule
  • Constitution of Kenya, 2010Chapter 12
  • Public Procurement and Disposal Act, 2005Referenced in the charges (value for money)
  • Public Finance ManagementReferenced in the charges
  • Criminal Procedure CodeSection 87(a)
  • Judiciary Human Resource Policy and Procedure ManualInternal disciplinary code

Cases cited (9)

  • Pius Machafu Isindu versus Lavington Security Guard Limited
    [2017] eKLR
  • Rebecca Ann Maina and 2 others versus Jomo Kenyatta University of Agriculture and Technology
    [2014] eKLR
  • David Gichana Omanga versus Mombasa Maize Millers Ltd
    E145 of 2021
  • Judith Nyagol and Judicial Service Commission and Another
    Petition E015 of 2024 (2024) KESC 69 (KLR) 22 November 2024
  • Grace Gathoni Murithi versus Kenya Literature Bureau
    (2012) eKLR
  • Bryan Mandila Khaemba versus the Supreme Court of Kenya and Judicial Service Commission
    (2019) eKLR
  • Linda Were versus Sanlam Life Insurance Limited and 2 others
    (Cause 248 of 2020) (2024) KEIC 3 (KLR)
  • Nancy Akinyi Kunga versus Credit Bank Ltd
    Cause E555 of 2023 KEELRC 2814 (KLR) (9 November 2023)
  • Kenfreight EA Ltd versus Benson K Nguti
    (Petition 37 of 2018) (2019) KESC 79 (KLR)
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.