Sikulu v Public Service Commission & 12 others; Okwiri & another (Interested Parties) (Cause E729 of 2022) [2025] KEELRC 2522 (KLR)

The Claimant did not dispute that he was promoted twice (2016 and 2019) and again during the proceedings. His earlier petition and appeal on the same promotion grievance were dismissed, the Court of Appeal finding the respondents acted without malice and within their mandate under Regulation E.27. No prima facie case of differential treatment of similarly situated comparators was established, so the burden never shifted to the employer.

The exhibited investigation report did not indicate the Claimant's role or level of culpability. Being a potential beneficiary of the fraudulent promotions was not proof of guilt, as demonstrated by the 13th Respondent, also a listed beneficiary, who was exempted. In-depth investigations ought to have preceded the conclusion of gross misconduct.

The Claimant was never supplied with the impugned promotion letter, which was the primary evidence against him, preventing him from mounting a defence. He was also not invited to a disciplinary hearing before the severe reprimand, and the Committee minutes did not show his presence. With dismissal contemplated, Section 41 of the Employment Act required an oral hearing.

Having found the disciplinary action substantively and procedurally unfair, the Court held that the salary withheld during the period of interdiction must be paid. However, general, exemplary and punitive damages were refused because the claims of unfair labour practices and discrimination failed.