Kibor v Independent Electoral and Boundaries Commission & another

4. The petitioner avers in his adavit that the respondent's actions are in gross violation of Article 236(b) of the Constitution, which protects public ocers from dismissal, removal, demotion, or disciplinary action without due process. The interdiction was eected without procedural fairness and contrary to the IEBC Human Resource Manual (HR Policy), which provides that an interdiction should not exceed 6 months. Yet the petitioner has been subject to such action for over 22 months without any communication or resolution. Such conduct is contrary to fair labour practices and fair administrative action as required under articles 41 and 47 of the Constitution. 5. The petitioner has cooperated with the respondent and responded to the notice to show cause dated 14 September 2023, attended the disciplinary hearing on 26 January 2024 and presented documentary evidence from Moi University verifying the authenticity of his degree. The respondent has not issued any ndings on the matter and has thus acted in bad faith. The respondent ought to have veried the authenticity of the degree from the interested party before the interdiction. 6. The eect has to be to place the petitioner under inhuman and degrading treatment, contrary to Articles 28, 41 and 47 of the Constitution. The petitioner has suered nancial hardship and socioeconomic suering since he has been on half pay for over 2 years. This has undermined his livelihood and ability to provide for the family. The respondents have kept the petitioner in perpetual uncertainty, unable to work, earn or plan his professional future. Such an act violates the constitutional values enshrined in articles 10 and 232 of the constitution. 7. The petitioner avers that unless the orders sought are issued and the respondent is directed to reinstate him to employment with full pay and benets, he will suer irreparable loss and damage. The interdiction is irrational and illegal since the interested party has since conrmed that it issued the questioned certicates. 8. The petitioner also led his Further Adavit, attached certied transcripts, and a degree from Moi University. 9. The petitioner also led a further adavit, averring that the respondent CEO had no power to interdict him. The interested party has since conrmed that the degree certicate is genuine, thereby resolving the issues that led to the interdiction. 10. The petitioner admitted that the EACC has since completed investigations and he has been charged in Milimani Anti-Corruption Case No. E007 of 2026, where the prosecution case is closed upon the evidence of Hassan Abdallah for the respondent and Peter Mulele, senior human resources and administration ocers of the respondent. The petitioner could thus not invoke internal disciplinary procedures upon being charged in court. 11. In reply, the respondent led the Reply Adavit of Hassan Abdalla, the acting director in the 12. Human Resources and Administration Department and averred that through a letter dated 22 June 2012, the respondent oered the petitioner employment as a constituency oce clerk with eect from 1 June 2012. He accepted the employment on 25 July 2012. 13. On 16 August 2023, the respondent identied 22 employees for promotion based on degree certicates obtained from Moi University. The petitioner was among the 22 employees. 14. The respondent, being mindful that the Public Service Commission (PSC) issued circulars PSC/ ADM/13 dated 19 October 2022 and PSC/ADM/13(42) dated 22 May 2023, which directed all public institutions to undertake an audit of academic and professional certicates for all employees, forwarded the degree certicates of the 22 employees to the interested party for authentication. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2059/eng@2026-07-16 2

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15. Through a letter dated 11 September 2023, the interested party conrmed that the Bachelor of Business Management (Finance and Banking) Degree Certicate No. 315507 presented by the petitioner was a forgery. The interested party also conrmed that the petitioner’s original certicate with two names had not been signed. 16. Hence, through a letter dated 14 September 2023, the respondent issued the petitioner a notice to show cause, informing him that the degree certicate presented to the respondent was not authentic following an audit by the relevant institutions. The petitioner was directed to explain the circumstances under which he obtained his academic qualications, and, in a letter dated 16 September 2023, he admitted that the proper procedure for obtaining the degree certicate had not been followed. He also apologised for what had happened and purported to correct the issue by visiting the interested party to follow up on the right procedure. 17. In a letter dated 2 November 2023, the interested party wrote to the respondent, stating that the petitioner had graduated from the university but that his rightful certicate was being corrected after clearance. The interested party thus conrmed that the degree certicate submitted by the petitioner had not been issued. 18. The interested party also conrmed that, in a letter dated 21 September 2023, the petitioner applied to have an omitted name added to the degree certicate. The correction was to indicate George Kipyatch Kibor instead of George Kipyatich. The petitioner also wrote to the respondent a letter dated 24 January 2024, stating that he had applied for the addition of his name to his degree certicate. The interested party also wrote to the respondent in a letter dated 24 January 2024, stating that the petitioner's degree certicate with an added name was authentic. 19. Due to contradictory information from the interested party and to allow for investigations, the respondent escalated the matter to the Ethics and Anti-Corruption Commission (EACC) to full its lawful mandate. In an email dated 8 April 2024, the respondent wrote to the EACC to investigate the issue regarding the petitioner’s degree certicate, which had now been re-issued by the interested party, including the name and serial number. 20. Hassan avers that he is aware that the EACC is yet to nalise the investigations. Hence, the action taken against the petitioner is lawful and justied. The respondent’s managerial prerogative grants it the authority to control its employees and business operations in the best interests of the business. The interdiction is lawful and followed the due process in the HR policy. The allegations are without merit, and the application for interim reinstatement is not justied; it should be dismissed with costs. 21. In the application, the petitioner submitted that the respondent unlawfully suspended the petitioner over the alleged submission of forged academic certicates by the interested party. The interested party has since led a response, conrming that it issued an authentic degree certicate to the petitioner and that a copy is on le. This renders the respondent's allegations that the petitioner submitted a forged degree certicate to secure employment false. The orders seeking restatement with full pay and benets should be issued. 22. The petitioner submitted that the decisions taken by the respondent, while it was not properly constituted without a chairperson and commissioners, are invalid. The actions taken by the CEO without the commissioners' approval are illegal. Even in a case where the CEO had authority, the suspension should have been for 6 months only under clause 12 of the HR Policy. It has been over 2 years of suspension with no action taken. This goes contrary to the rules of natural justice in allowing a disciplinary process to run this long. The petitioner has been prejudiced and continues to suer loss and damage since he is on half pay. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2059/eng@2026-07-16 3

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23. The respondent's action cannot be excused on the ground that the matter is under investigation by the EACC, as such an investigation does not violate the petitioner's rights. When the petitioner led this petition, the EACC commenced criminal proceedings, meaning the respondent and the EACC are not acting in good faith. The respondent's inaction cannot be justied. 24. The respondent submitted that the petitioner is a public ocer and the law on integrity applies to his case. The petitioner has submitted that he has been suspended, whereas he is on interdiction. Under the HR policy, there is a dierence between an induction and supervision, which are governed under dierent clauses. 25. The petitioner has led the petition and the application herein to circumvent the disciplinary process. He has not allowed the exhaustion of internal dispute resolution mechanisms to be completed before invoking the judicial route. 26. The respondent admitted that indeed an interdiction should be for 6 months under clause 12 of the HR policy. However, the same rule allows that, in exceptional circumstances, such a period can be extended. In a complex case, the time limit is 24 months under the Ethics and Anti-Corruption Act. For minor oences, a 6-month period is sucient. However, the petitioner’s case of forgery of academic certicates is dened as a major oence under the Integrity Act. The respondent is thus allowed to involve other government agencies, such as the EACC, to facilitate the investigation. 27. The respondent submitted that it had written to the interested party to authenticate the degree certicate submitted by the petitioner to secure employment, and that no genuine certicate had been produced. On 11 September 2023, the interested party wrote to the respondent, stating that the petitioner's degree certicate was a forgery because it bore 2 names. On this basis, a notice to show cause was issued to the petitioner. 28. On 16 November 2023, the petitioner admitted that he did not follow the proper procedure for procuring the degree certicate. He apologised and sought to address the issue with the interested party. 29. On 2 September 2023, the interested party wrote to the respondent, conrming that the university had not issued the petitioner's degree certicate. However, a further communication indicated that the degree was being corrected. 30. There are contradictions in the various communications from the interested party. The respondent thus invited the EACC to conduct investigations. The matter thus fell under exceptional circumstances necessitating more time beyond the allowed 6 months to 24 months to complete the process. The interdiction is therefore lawful. 31. The petitioner has admitted that he has been charged with the oence of forgery of a certicate. This charge, in essence, changed the indictment by operation of the law to a suspension. Under section 62 of the EACC Act and clause 12 of the HR policy, read with the Public Service Commission Act, a suspension is permitted once EACC investigations result in the employee being charged in court. 32. The respondent submitted that the orders sought seeking reinstatement at the interlocutory stage cannot be issued. There exists no exceptional reason to allow such a relief. The court cannot step into the respondent's management control where ongoing criminal proceedings are arising from a forged certicate submitted to secure employment. Determination 33. At this stage, the petitioner is seeking an order of reinstatement to his position as assistant election ocer with the respondent, with full pay, benets, and privileges applicable before his interdiction. His https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2059/eng@2026-07-16 4

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grounds are that he was interdicted in November 2023, and since then, despite producing a genuine degree certicate, the respondent has not concluded the disciplinary process. 34. The petitioner has also challenged the respondent's decision to interfere with him while the IEBC was not yet fully constituted. 35. The respondents in reply assert that, under the HR Policy, an interdiction may be issued, and that where the matter falls under exceptional circumstances due to the nature of the charge, a further period of up to 24 months is allowed. Once the employee is charged following EACC investigations, the respondent is allowed a suspension. 36. What is apparent to the court is that the petitioner is an employee of the respondent. He was issued a letter of interdiction, as permitted under the HR policy, to facilitate investigations. 37. In his Further Adavit, the petitioner admitted that he was charged in Milimani Anti-Corruption Case No. E007 of 2026, which is ongoing, and the prosecution has since closed its case upon the call of two witnesses from the respondent. 38. Indeed, as submitted by the respondent, the employer is permitted an interdiction to facilitate 39. investigations under the internal HR policy. In this case, the petitioner admitted that his degree certicate, submitted when seeking employment with the respondent, listed 2 names. Upon the audit directed by the PSC, the respondent placed the degree certicate with the interested party, and the petitioner apologised for not having undertaken the correct procedure in obtaining this certicate. 40. On admission, it was thus necessary for the respondent to initiate the investigations, and while such were pending, an interdiction was allowed under the HR policy for 6 months. 41. Further, the respondent, being a constitutional commission, and its employees, being public ocers, are regulated by the circulars issued by the PSC. In this regard, in accordance with directions issued to all government agencies, including constitutional commissions such as the respondent, the audit revealed that the petitioner's degree certicate was not authentic. Further investigations were thus necessary, escalating the interaction from a normal one to an exceptional one under the HR policy. 42. Indeed, once the respondent led a complaint with the EACC, the character of the investigations changed. The EACC, upon conducting its own investigations, decided to prefer a charge against the petitioner under Milimani Anti-Corruption Case No. E007 of 2026. The matter is ongoing. 43. Section 62 (1) of the Anti-corruption and Economic Crime Act, No. 3 of 2003, which provides; A public ocer who is charged with corruption or economic crimes shall be suspended at half pay with eect from the date of charge. 44. In Hassan Magiya Kiage v Attorney General & another [2016] KEELRC 1792 (KLR), the court, in addressing a similar matter, held that the employer may interdict the employee once the EACC has undertaken investigations and preferred criminal charges against the subject employee. 45. The court in Chere & 4 others v Lake Basin Development Authority [2022] KEELRC 3782 (KLR) held that the interdiction can only be lifted upon the conclusion of the EACC criminal proceedings. The interdiction is lawful. 46. Being lawful and following the charges under Milimani Anti-Corruption Case No. E007 of 2026, the respondent operated under its lawful mandate to commence investigations and thus interdict the https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2059/eng@2026-07-16 5

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petitioner. The question of the constitution of the IEBC, the respondent at the time the notice of interdiction was issued, can only be gone into during the hearing. 47. However, good cause dictates that an employee should not be placed under such uncertainty over unreasonable periods. The interdiction on half pay has been in eect since November 2023. It is only fair that the matter be addressed to a conclusion within a reasonable period. 48. Further, nothing stops the petitioner from prosecuting his petition, the fact of Milimani AntiCorruption Case No. E007 of 2026 notwithstanding. The attendant procedures therefrom and the orders sought herein are distinct and dierent. 49. Accordingly, the orders sought in the interim shall not issue. Application dated 14 October 2025 is declined. Costs shall be subject to the outcome of the petition. DELIVERED IN OPEN COURT THIS 16TH DAY OF JULY 2026 M. MBARŨ JUDGE In the presence of: Court Assistant: Kemboi ……………………………………………… and …………………………………..……… https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2059/eng@2026-07-16 6

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