Rotich v Judicial Service Commission (Cause E772 of 2022) [2025] KEELRC 2166 (KLR)
The bottom line
#Kenya's Employment Court ruled the Judicial Service Commission unfairly dismissed a court assistant, awarding him six months' salary but denying reinstatement.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the disciplinary process
The procedure adopted was not fair: the section 25(1) Third Schedule inquiry was not carried out and the claimant's request to cross-examine Ms. Halima Noor was not allowed
Although notice was given and a hearing conducted, the Human Resource Management Advisory Committee's recommendation to absolve the claimant was overturned without the inquiry contemplated by section 25(1) of the Third Schedule of the Judicial Service Act. The claimant also requested cross-examination of Ms. Halima Noor but that opportunity was not allowed. These procedural defects resulted in a miscarriage of fairness, rendering the dismissal procedurally unfair.
Validity of the reason for dismissal
The respondent had no valid reason to dismiss because the deficiency in operational requirements for process servers lay with the respondent, not the claimant
The disciplinary committee itself found that process servers in the Judiciary/Kadhi's Court being paid by lawyers or clients was prevailing practice. The court held the respondent maintained deficient operational requirements regarding the claimant's role, and the claimant ought not to be punished for that deficiency, which required policy intervention. Hence no valid reason for dismissal existed under section 45 of the Employment Act, and the termination was unfair.
Entitlement to compensation under section 49 of the Employment Act
Six months' gross salary less PAYE awarded, taking account of the claimant's contribution to the dismissal by retaining Kshs.2,000 in unexplained circumstances
The court weighed the section 49 factors, noting the claimant contributed to his termination by retaining Kshs.2,000.00 in unexplained circumstances, with contradictory evidence about whether the full Kshs.15,000 was refunded. In the circumstances, six months' compensation less PAYE was considered to balance justice for the parties, and payment was ordered by 01.11.2025 failing interest at court rates.
Reinstatement as a remedy
Declined as time-barred under section 12(3)(viii) of the Employment and Labour Relations Court Act
Reinstatement must be ordered within three years of dismissal. The dismissal was effective 07.07.2021 and communicated on 22.12.2021, and three years lapsed on 22.12.2024. Even measuring from the appeal decision of 07.06.2022, the period would lapse on or about 07.06.2025. The remedy therefore appears time barred and the court did not consider the section 49 appropriateness factors.
Legal principles established
#- It is an unfair labour practice for an employer to fail to act on reported deficiencies in its operational policies and systems, and to visit adverse consequences on an employee for losses attributable to such deficiencies; where such practices ground a termination, the termination is unfair
- Failure to carry out the inquiry contemplated under section 25(1) of the Third Schedule of the Judicial Service Act renders the disciplinary procedure unfair
- Reinstatement is available only within three years of dismissal under section 12(3)(viii) of the Employment and Labour Relations Court Act
Court orders
#- 1.Declaration that the termination was unlawful, wrongful and unfair
- 2.Respondent to pay the claimant 6 months' gross salaries at the rate of the last gross monthly salary, less PAYE, to be paid by 01.11.2025 failing interest at court rates from the date of judgment till full payment
- 3.Declaration that the respondent to issue a standing policy where licenced court process servers may be involved in serving court processes at the instance of litigants
- 4.Each party to bear own costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the Employment and Labour Relations Court Act (s.12)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rotich v Judicial Service Commission (Cause E772 of 2022) [2025] KEELRC 2166 (KLR)", Case Analysis (2025). Memorandum of claim dated 27.08.2022 (ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2166/eng@2025-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.