Shikwe v Judicial Service Commission (Petition E011 of 2024) [2025] KEELRC 1748 (KLR)
The bottom line
#A Kenyan court ruled that an eight-year workplace disciplinary process was unconstitutionally slow, canceling a Kshs 2.37 million surcharge and awarding Kshs 500,000.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Petitioner's interdiction was justifiable
- 2.Whether the refusal to supply him with a copy of the audit report was justifiable
- 3.Whether the decision to suspend him was justifiable
- 4.Whether the decision to terminate his employment was logical and fair
- 5.Whether his constitutional rights were violated
- 6.Whether the orders sought should issue
Key legal issues
#Whether the 8-year delay in the disciplinary process infringed the Petitioner's rights
The delay violated Article 41 of the Constitution and fair administrative action under Article 47
The disciplinary process spanned about eight years from interdiction to termination. The Respondent's explanations — COVID-19 and the transition between Chief Justices — accounted for only a fraction of that period. The court found the delays evidenced laxity and violated fair administrative action, warranting Kshs. 500,000/- in compensation.
Whether the surcharge of Kshs. 2,373,961.85 was lawful
The surcharge was illegal, null and void and was vacated
The Respondent failed to avail the audit report linking the Petitioner specifically to the loss. The audit queries involved other officers, including the main culprit behind the recycling of vouchers and initial losses. Without the supporting audit report, the surcharge could not be sustained and was vacated ex debito justitiae.
Whether the termination was justified
Termination was for good cause but the process offended Article 47
The audits covering the Petitioner's tenure revealed financial malfeasance, including improper accounting, failure to maintain records and holding cash beyond stipulated amounts. The court found valid reason for the termination, but the drawn-out process infringed fair administrative action rights.
Whether Article 25 and Article 50(2) applied to the workplace disciplinary process
Article 25 does not apply to employees accused of misconduct; the disciplinary hearings did not violate the right to a fair hearing
The court held that Article 25 protections attach only to persons facing criminal charges. Extending them to every employee accused of gross misconduct would require quasi-criminal trials in the workplace, which would be absurd. The hearings of 24th June 2019 and 2nd March 2021 were accordingly found not to be illegal, null or void.
Legal principles established
#- Article 25 non-derogable rights of an accused person do not extend to employees facing workplace disciplinary action
- A surcharge founded on an audit report not availed to the affected employee cannot stand
- Employers must conclude disciplinary processes expeditiously; inordinate unexplained delay violates Article 47
Court orders
#- 1.A declaration that the Respondent infringed upon the rights of the Petitioner in terms of Article 47 of the Constitution in respect of the disciplinary process undertaken
- 2.The Respondent to pay the Petitioner Kshs. 500,000/- for infringing on his constitutional rights, with interest at court rates upon expiry of 30 days should the sum not be settled within 30 days of the judgment
- 3.Costs limited to the sum awarded in paragraph 41
- 4.The surcharge of Kshs. 2,373,961.85 declared illegal, null and void and vacated
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Constitutional petition under Articles 41, 47 and 50 of the Constitution (Employment and Labour Relations Court jurisdiction)
Relief refused
#Declarations that denial of access to audit reports and halting of salary violated Articles 50(2)(d) and 50(2)(k)
Article 25/50(2) protections for accused persons do not apply to workplace disciplinary proceedings; hearings did not violate fair hearing rights
General damages and exemplary damages
Court found Petitioner not entitled to either
Damages for unlawful termination / compensation for withheld salary and benefits
Termination was for good cause; court declined award for sums withheld during suspension
Costs
Costs limited to the sum awarded in paragraph 41 (the Kshs. 500,000/- award)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It only applies where criminal charges are preferred and no matter the wording of accusations levelled against an employee, Article 25 is never triggered in a work place dispute resulting in disciplinary action.
I would therefore find and hold the surcharge was illegal, null and void.
A declaration be and is hereby issued that the Respondent infringed upon the rights of the Petitioner in terms of Article 47 of the Constitution in respect of the disciplinary process undertaken.
A declaration be and is hereby issued that the Respondent must pay Kshs. 500,000/- to the Petitioner for infringing on his constitutional rights. Interest to run at court rates upon the expiry of 30 days from today should the Respondent not settle the sum awarded to the Petitioner within 30 days of this judgment.
There be an order for costs limited to the award in paragraph 41 above.
Issues in the judgment
#Judgment inconsistently dates the interdiction ('interdicted in 2016' versus earlier statements of interdiction effective 11th/29th April 2013)
Judgment inconsistently dates the disciplinary hearing ('3rd March 2021' in the petition versus '2nd March 2021' in the findings)
Typographical error: 'The Court has nor found basis' instead of 'not found basis'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shikwe v Judicial Service Commission (Petition E011 of 2024) [2025] KEELRC 1748 (KLR)", Case Analysis (2025). Petition dated 25th March 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1748/eng@2025-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.