Republic v Parliamentary Service Commission & Reuben Chesire Kimosop (Ex-parte Applicant)

2. The Application is premised on the Statement of Facts dated 26 th January 2026, and the Applicant’s Affidavit sworn on 27 th January 2026 and the grounds that: the Applicant worked as Principal Sergeant-at-Arms; prior to his suspension, he was issued with a show cause letter dated 20th February 2025, which he responded to allegation of gross misconduct on 26 th February 2025; that he was suspended in May 2025; and vide letter dated 22nd October 2025, he was invited to attend disciplinary hearing of 30 th October 2025; that the Respondent has failed to communicate the outcome of the disciplinary proceedings since, yet it had been more than 8 months since his suspension; that paragraph 15.5.2(g) of the Parliamentary Service Commission Human Resource Policies and Procedures Manual mandates that suspension cases be determined within three months, subject to extension, which extension has never been communicated to him; despite demand and reminders to communicate the outcome, the Respondent has failed to comply; that the delay is inordinate, unreasonable, unlawful and unfair, contrary to Article 47(1) of the Constitution and Section 4 of the Fair Administrative Actions Act; the prolonged suspension without pay is punitive labour practice causing him undue hardship, given his PWD status; unless the orders are granted, he will continue to suffer irreparable prejudice; and it is in the interest of justice that the application is allowed. 3. The Respondent opposed the Application vide its Replying Affidavit sworn by Jeremiah Nyegenye, the Clerk Senate and the Respondent’s Secretary who acknowledged that the Applicant was employed as Principal Sergeant-At-Arms in the Senate and that he was issued with a show cause letter dated 20 th February 2025. He 2 | Page

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deponed that the Applicant was accused of sexual harassment/assault against a student attaché at Senate, which occurred at the Applicant’s office at basement two of the Bunge Towers. He stated that the Applicant’s conduct exhibited in the letter constituted gross misconduct and in breach of the requirements outlined in paragraphs 14.4(2), 14.2(21), 14.4(26), 15.3.1(1, 26 and 29), of the Respondent’s Manual. 4. He stated that the Applicant’s response to the show cause letter admitted that he met the student over lunch and that he requested her to pass by his office which she did. That there was interaction between them in the office after which the student voluntarily hugged him before she left. He stated that the Applicant also stated that the student voluntarily gave him her number without coercion. While relying on the decision in Mary Chemweno Kiptui v Kenya Pipeline Company Limited [2014] KEELRC 905 (KLR), he stated that suspension is a right due to an employer where an employee is suspected of misconduct. He added that the Respondent was within its right in suspending the Applicant given the nature of the case to enable it commence disciplinary proceedings. 5. Relying on the case of Wanderi & 106 others vs Engineers Registration Board & 7 others; Egerton University & another (interested Parties) [2018] KESC 54 (KLR), he stated that the Supreme Court found that the legality or lawfulness of an act lies at the core of Article 47(1) of the Constitution. He contended that the Respondent as employer had the legal authority to extend the suspension, and that there was no obligation to inform the 3 | Page

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Applicant of the extension. He stated that while the hearing was conducted on 31st October 2025, the outcome was delayed by the death of the chairperson of the Staff Disciplinary Committee. That there was a further delay when the Vice Chairperson, who took over, was appointed as judge of Court of Appeal. He added that the changes delayed the presentation of the report of the Committee for adoption by the Respondent, before communicating the same to the Applicant. He deponed that the Applicant had not proved abuse of discretion by the Respondent, and thus, the Court could not interfere with the Respondent’s exercise of discretion. He deponed that the application had not met the threshold for issuance of writ of mandamus or consideration for judicial review. He urged the Court to dismiss the Application with costs to the Respondent. 6. The Respondent filed a on its Further Affidavit sworn by Eunice Gichangi, the Deputy Clerk on 10th July 2026 who deposed that the Applicant was accorded a fair hearing in line with the Respondent’s Manual. She stated that the Disciplinary Committee presented its report before the Board of Senior Management, which considered the matter and made recommendation to the Staff Welfare Committee in line with the Manual. That the Staff Welfare Committee considered the recommendation and thereafter made recommendations to the Respondent. She stated that the Respondent at its 332nd meeting held on 17th June 2026 resolved to dismiss the Applicant for gross misconduct pursuant to Section 15.3.1(29); in line with Regulations 28 and 34 of the Parliamentary Service Commission Regulations 2002. The affiant added that the Applicant had since been informed of the Respondent’s resolution to dismiss him. She deposed that the orders sought could be 4 | Page

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granted as the Respondent has already concluded the proceedings and communicated the outcome. She urged the Court to dismiss the Application with costs to the Respondent. Submissions 7. The Applicant’s counsel submitted on: whether the Respondent’s delay in concluding the disciplinary outcome was unlawful, unreasonable and procedurally unfair; and whether the Applicant is entitled to the reliefs sought. 8. On the first issue, it was submitted that Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act imposed timelines and delay could amount to unfair administrative action, which the Applicant had demonstrated clear violation of his rights. Reliance was placed on the decision in Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others [2016] eKLR. Counsel termed as unreasonable, unlawful and procedurally unfair. Reliance was also placed on the case of Grace A. Omolo v Attorney General & 3 others [2012] eKLR. 9. On delay, it was submitted that the Respondent was not simply absolved of the duty to act expeditiously by the death of the Chairperson. Reliance was placed on the decision in Karani v Judicial Service Commission [2022] KESC 37 (KLR). On the claim by the Respondent to having unfettered discretion, it was submitted that the same must had be exercised within bounds of legality, reasonableness and fairness. Counsel submitted that the delay was an abuse of the discretion and lacking in procedural fairness transparency and deprived him of his right to fair process. 5 | Page

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Reliance was placed on the decision Dennis Moturi Anyoka v Kenya Revenue Authority & 2 others [2015] KEELRC 409 (KLR). The assertion that the Respondent was not required to notify the Applicant of extension of suspension was disparaged and termed as offending the principles of transparency, accountability and administrative fairness. 10. Reliance was further placed on Section 4(3) of the Far Administrative Act and Article 47(2of the Constitution in arguing that the Applicant was entitled to written reasons for the extension. It was submitted that learning of the extension through these pleadings undermined due process and raised serious concerns about the fairness and integrity of the exercise. Counsel added that without proper communication and justification of the alleged extension, the whole process was opaque and arbitrary. Reliance was placed on the decision in Republic v Royal Nairobi Golf Club ex parte Ooko Erick Obura & another [2021] KEHC 5332 (KLR). It was urged that the seriousness of the allegation did not diminish the need for procedural fairness. 11. On the second issue, reliance was placed on the Ugandan case of Pastoli v Kabale Local Government Council & others, (2008) 2 EA 300 and Section 11 of the Far Administrative Action Act. On the scope of Mandamus, reliance was placed on the Kenya National Examination Council v Republic; Gathenji & 9 Others (ex-parte) KECA 58 (KLR). It was argued that due to the prolonged process, the Applicant has suffered loss of income due to prolonged suspension without pay, emotional distress, reputational harm and disproportionate hardship as a PWD. It was argued that 6 | Page

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the Applicant was entitled to compensation of Kshs. 1,000,000/= as general damages. Reliance was placed in the decision in Francis Ochieng Oiro v Nairobi City County Government [2020] KEELRC 248 (KLR). The Court was invited to uphold the rule of law, protect statutory and constitutional rights and ensure accountability in administrative action. 12. The Respondent on the other hand submitted on whether the matter had been overtaken by events; whether the duration of suspension and the disciplinary process in the circumstances of this case amounts to a violation of Article 47(1) of the Constitution and the contractual terms in the Public Service Commission Policy Manual whether the ex-parte Applicant was entitled to the writ of mandamus sought and; whether the ex-parte Applicant was entitled to the damages sought. 13. On the first issue, it was submitted that the matter had been overtaken by events as the Respondent had concluded the process and communicated the outcome to the Applicant. 14. On the second issue, reliance was placed on the decision in Kenya Ports Authority & another v Joseph Makau Munyao & 4 others [2019] KECA 498 (KLR) in urging that an employer was bound follow the guidelines set in its HR Manual, which should be made available to employees. Further reliance was placed on the decision in Kenya Plantation & Agricultural Workers Union vs Finlays Horticulture Kenya Ltd [2015] eKLR. 7 | Page

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15. On suspension, reliance was placed on decision in Mary Chemweno Kiptui v Kenya Pipeline Company Limited [2014] KEELRC 905 (KLR). Counsel added that suspension was not a disciplinary action, rather a neutral action but enable an employer to conduct internal investigation. To buttress the submission, reliance was placed on the decision in Joseph Ndung’u v Mastermind Tobacco (K) Ltd [2014] KEELRC 1125 (KLR) and Paragraph 15.5.2(g) of its Manual in submitting that the Respondent acted within its right to suspend the Applicant. It was argued that the lack of notice of extension did not by itself crystallize into a constitutional violation. In arguing that the employer had discretion reliance was placed on the decision in Republic v Kenya Revenue Authority; Proto Energy Kenya (Ex-parte) [2022] KEHC 5 (KLR). Counsel submitted that the Respondent did not abuse discretion as it has provided reasons for the delay. 16. On the third issue, it was submitted that the writ of mandamus was not guaranteed as was discretionary. Reliance was placed on the Proto Energy Kenya case (Supra.) 17. On the fourth issue, counsel submitted that the law required a party to state the exact amount of damages sought. Reliance was placed on decision in CMM (Suing as the Next Friend of and on behalf of CWM) & 6 others v Standard Group & 4 others [2023] KESC 68 (KLR). Counsel added that the Applicant had not demonstrated that the process was discriminatory or specifically targeted his disability. The Court was urged to dismiss the claim with costs. 8 | Page

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Analysis 18. The issues that arise for determination are: whether the extended suspension without notice was legal and within the Respondent’s discretion; and whether the Applicant is entitled to the reliefs sought. 19. On the first issue, the Respondent’s contention is that it was within its discretion to extend the period of suspension and with no obligation to notify the Applicant of the same. the Applicant rebutted the same citing his constitutional right to fair administrative process and noting that he followed up on the outcome in vain. 20. Clause 15.5.2 (g) of the Respondent’s Manual provides for suspension as follows: “(g) Suspension cases must be determined within three months. The Parliamentary Service Commission may extend the period depending on the circumstances of the case.” Emphasis supplied. 21. The provision provides the period within which cases of suspension ought to be resolved. The period is not a provision for investigation, rather the duration within which all activities must be finalised and a determination made. Even though there is a provision for extension, the limitation period is couched on mandatory terms. Clearly, the Respondent ought to have completed the investigations and concluded the case before August 2025. The Respondent attributed the delay to be death of the Chairman of the 9 | Page

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committee and appointment of the Vice-Chairman to position of Judge of Appeal. The supporting evidence shows that the Chairman, Dr. Philip Brightone Buchere passed away on 24th November 2025, whereas Dr. Johnson Okoth Okello was appointed as judge of the Court of Appeal on 22nd January 2026. There was no explanation for the delay between August and October 2025, or the reason for the extension, save for the claim that sexual assault is a serious farm of misconduct. There was also no explanation for the delay between November and 22nd January 2026, when Dr. Okello was appointed a Judge. 22. The Respondent communicated the decision to dismiss the Applicant vide its letter dated 29th June 2026, over a year since he was suspended. 23. It is trite that any administrative action must be governed by Section 4 of the Fair Administrative Action Act, which provides that: “1. Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair. 2. Every person has the right to be given written reasons for administrative action that is taken against him. 3. Where administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision- 10 | P a g e

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a. Prior and adequate notice of the nature and the reasons for the proposed administrative action; b. An opportunity to be heard and to make representations in that regard; …” 24. The essence of suspension was highlighted Teresia N. Peter v Kitui Teachers Savings & Credit Co-Operative Society Ltd [2014] KEELRC 852 (KLR) as follows: “25. Suspension does not imply that any misconduct has taken place but is a neutral act where an employee is asked to stay away from work to enable the employer to conduct investigations into allegations made against the employee. 26. An employee on suspension remains innocent until proved otherwise. In addition, such an employee has a legitimate expectation that they will be given an opportunity to respond to any adverse findings arising out of investigations conducted by the employer. Suspension by its nature creates a fair amount of suspense for both the employee and the employer and should not therefore be unduly prolonged.” 25. In Gregory Otieno Owouth v Mumias Sugar Co. Limited [2016] KEELRC 1421 (KLR) compliance with pre-set the court insisted on strict timelines, and described prolonged suspension as a punishment as follows: “I do not agree with Mr. Achiando's position. The Respondent cannot put an employee on indefinite 11 | P a g e

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suspension against the provisions of its very own regulations. If the Respondent was not ready to conclude the process within the prescribed period of 21 days it should have carried out its investigations and finalised them before sending the Claimant on suspension. Although it is not formal punishment, an employee on suspension is saddled uncertainty of not knowing his fate. with the His self esteem is punctured and his right to work is interfered with. Any disciplinary action must take the shortest time possible, otherwise it turns into a punishment.” 26. For the foregoing, reasons, the court finds that there was inordinate delay, the Applicant suffered prejudice and the respondent’s explanation was insufficient. The Respondent ought to have communicated to the Applicant, more so, since the Applicant clearly exhibited concerns over the delays. However, the Respondent ignored the same. 27. The scope of unfair labour practice was highlighted by the Supreme Court in Kenya Ports Authority v Munyao & 4 others (Petition E008 of 2023) [2023] KESC 112 (KLR) (Civ) (28 December 2023) (Judgment) where it held as follows: 55.From the encompasses above all definition conduct prior unfair labour to, the in practice course of employment, during and after termination of employment. The provisions of article 41 therefore encompass the full spectrum of labour practices. The provisions of article 41 are borne from the realization that employment and/or right 12 | P a g e

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to work is a human right. The right is also linked to other rights in the bill of rights more so the protection of life and the dignity of a person. The right is therefore a principle with legal obligations. 28. In finding that the Respondent’s actions were against fair labour practice, the court is persuaded by the holding in Donald C. Avude v Kenya Forest Service [2015] KEELRC 1472 (KLR) thus: “… In all these cases suspension should be for a determinate period where such suspension is without pay. Otherwise it would constitute inhuman treatment especially in the case of the respondent's Manual where the employee is required to be at the place of work without a salary and for an indeterminate period.” 29. On the second issue, the rationale for success in Judicial review was laid out by the Court in Pastoli v Kabale District Local Government Council & others (2008) 2 EA 300, as follows: “In order to succeed in an application for Judicial Review, the Applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety. Illegality, is when the decision-making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires or contrary to the 13 | P a g e

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provision of a law or its principles are instances of illegality. Irrationality, is when there is such gross unreasonableness in the decision taken or act done that no reasonable authority, addressing itself to the facts and the law before it would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards. Procedural impropriety, is when there is failure to act fairly on the part of the decision making authority in the process of taking a decision. The unfairness may be in non- observance of the Rules of Natural Justice to act or to act with procedural fairness towards one to be affected by the decision – it may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislature instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehidswi…Vs… Secretary of State for the Housing Department (1990) AC 876.” 30. Having found that the Respondent acted unprocedurally and unfairly, the court is satisfied that the Applicant is entitled to compensation in accordance with section 11 (1)(j) & 2(2)(d) of the Fair Administrative Action Act which provides: 11. Orders in proceedings for judicial review. (1) In proceedings for judicial review under section 8 (1), the court may grant any order that is just and equitable, including an order- 14 | P a g e

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(j) for the award of costs or other pecuniary compensation in appropriate cases. (2) In proceedings for judicial review relating to failure to take an administrative action, the court may grant any order that is just and equitable, including an order(d) as to costs and other monetary compensation. 31. There being a decision made by the Respondent, it is clear that the prayer for mandamus has been overtaken by events. The applicant is awarded Kshs.200,000.00 in damages with costs at ½ scale. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 21ST SEPTEMBER, 2026. DR. JACOB GAKERI JUDGE ORDER In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15 th March 2020 and subsequent directions of 21 st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which 15 | P a g e

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requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. DR. JACOB GAKERI JUDGE 16 | P a g e

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