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Court of AppealDismissedCourt of Appeal Civil Appeal (Nairobi)

Judicial Service Commission v Muraya & 4 others (Civil Appeal E002 of 2024) [2024] KECA 1599 (KLR)

Court of Appeal of Kenya
8 November 2024
7,064 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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The Court of Appeal upheld reinstatement of five Judiciary accountants dismissed over a theft their employer's own forensic reports showed they did not cause.

What this practically means

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Executive summary

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This was a first appeal by the Judicial Service Commission against a decision of Manani, J. of the Employment and Labour Relations Court declaring the dismissal of five Judiciary accounts staff unlawful and ordering their reinstatement. The respondents were interdicted in 2013 following the theft of Kshs.80,013,302 from the Judiciary, acquitted in criminal proceedings in January 2020, issued with show-cause letters in August 2021, and dismissed in December 2021 notwithstanding a Disciplinary Committee report recommending their absolution on grounds that a malware, not employee negligence, had harvested their passwords. The Court of Appeal framed two issues: whether the termination was fair, valid and procedural, and the appropriate reliefs. The Court held that the DCI and Vivium forensic reports attributed the loss to a malware implanted before the incident, that the fraudulent transfers occurred when the respondents were off-duty, and that no culpability could be attached to their conduct. The Court distinguished this Court's decision in Judicial Service Commission v Aggrey Oure Onyango and held there was no justification to depart from the Disciplinary Committee's recommendation, so the termination was wrongful, unlawful and unfair. On remedies, reinstatement remained within the three-year period under section 49 of the Employment Act, the respondents could be reintegrated into the large Judiciary organization, and no evidence showed their positions were unavailable. The appeal was dismissed, the respondents were to be restored to their prior positions with all benefits accrued during interdiction, and each party was ordered to bear its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the termination of the respondents was fair, valid and procedural
  2. 2.The appropriate reliefs to be granted

Key legal issues

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01

Whether the appellant had a valid reason to terminate the respondents' employment on grounds of negligence

Holding

No. The forensic reports (DCI and Vivium Consulting) showed the loss was caused by a malware harvesting passwords, not by any omission or commission by the respondents; the Disciplinary Committee had recommended their absolution and there was no justification to depart from it.

Reasoning

Both forensic reports agreed the passwords were harvested through malware implanted since March 2013; changing passwords could not prevent the hack. The fraudulent transfers occurred on a Friday night and Saturday when the respondents were not at work. The Disciplinary Committee absolved the respondents of negligence. Applying the reasonable man test on a balance of probability, none of the actions or inactions leading to the loss could be attached to the respondents' conduct, so the termination lacked a valid reason and was wrongful, unlawful and unfair.

p. 12
02

Whether disciplinary proceedings on a charge of negligence could be brought after acquittal on a charge of conspiracy to steal

Holding

Yes, in principle under Paragraph 18(3) of the Third Schedule to the Judicial Service Act, but the JSC's decision in Onyango is distinguishable because here the forensic reports laid no blame on the respondents, unlike the employee in Onyango who could not account for funds he received.

Reasoning

The Court accepted that an acquitted officer may be disciplined on a substantially different charge. However, distinguishing Judicial Service Commission v Aggrey Oure Onyango, the Court found that here the forensic reports exonerated the respondents entirely, whereas in Onyango the employee could not account for monies received, justifying a strained employer-employee relationship. The dismissal on the negligence charge was therefore not sustainable on the evidence.

p. 11
03

Whether reinstatement was an appropriate remedy

Holding

Yes. The dismissal occurred in 2021 and the respondents remained within the three-year period for reinstatement; the Judiciary is a large organization capable of reintegrating them, and no evidence showed their former positions were unavailable.

Reasoning

Under section 49 of the Employment Act, the factors in subsection (4)(a)-(m) favour reinstatement. The trial had concluded within the required three-year period. The Judiciary has stations countrywide and the respondents, being accountants, could be easily reintegrated. No evidence was placed before the trial court that the positions were no longer available, so the remedy was not onerous on the employer and the trial judge's order disclosed no error of principle.

p. 12

Legal principles established

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  • Termination of employment requires both a valid and justifiable reason and adherence to fair procedure, and the burden of justifying the grounds for termination rests on the employer.
  • An employee must be given an opportunity to be heard before termination, and this right is inalienable regardless of apparent guilt.
  • Under Paragraph 18 of the Third Schedule to the Judicial Service Act, an officer acquitted of a criminal charge cannot be dismissed or punished on that charge, but may face disciplinary proceedings on a substantially different charge.
  • An appellate court will only interfere with a trial judge's discretion on remedies where the award was based on wrong principles.

Court orders

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  1. 1.Appeal dismissed
  2. 2.The respondents shall be placed in the same position as they were prior to their dismissal and shall be entitled to all the benefits accrued during the period of their interdiction
  3. 3.Each party bears its own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
On appeal from
Employment and Labour Relations Court
ELRC Cause No. E003 of 2022
Jurisdiction invoked
First appeal to the Court of Appeal under rule 31(1) of the Court of Appeal Rules, 2022

Relief refused

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Setting aside the decision of Manani, J. and allowing the appeal

The appeal lacked merit; the trial court's findings on unfair termination and reinstatement were sound

p. 12

Costs of the appeal awarded to the appellant

The Court ordered each party to bear its own costs

p. 12

Costs

Each party bears its own costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The sum total of our findings is that this appeal lacks merit and the same is hereby dismissed.
p. 12Final orders - dismissal of appeal
our further order is that the respondents shall be placed in the same position as they were prior to their dismissal and shall be entitled to all the benefits accrued during the period of their interdiction. We order that each party bears its own costs.
p. 12Final orders - reinstatement to prior position and costs
Applying the reasonable man test and considering all the factors on record, the appellant did not, on a balance of probability, have a valid reason to terminate the respondents' employment.
p. 12Validity of reasons for termination
We then arrive at the inescapable conclusion that the respondents' termination was indeed wrongful, unlawful and unfair in the circumstances.
p. 12Characterisation of the dismissal
Notable too is the fact that Judiciary is a large organization with stations spread at every corner of the country. The respondents being accountants can be easily re-integrated into the Judiciary system to serve in the various stations.
p. 12Reinstatement as remedy

Issues in the judgment

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minor

The judgment internally gives conflicting dates for the Disciplinary Committee report: paragraph 6 states it was dated 19th November 2011, while paragraph 47 states 19th November 2021.

minor

The judgment states the dismissal letters were dated 22nd December 2021 in paragraph 7 but refers to letters dated December 21, 2021 in paragraph 50.

minor

The judgment gives conflicting dates for the DCI report: paragraph 44 refers to June 28, 2015, while paragraph 45 refers to a report dated 28th June 2014.

minor

The amount of loss is inconsistently stated as Kshs.80,103,302 in the dismissal letter quoted in paragraph 7 versus Kshs.80,013,302 elsewhere in the judgment.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Judicial Service Commission v Muraya & 4 others (Civil Appeal E002 of 2024) [2024] KECA 1599 (KLR)", Case Analysis (2024). Court of Appeal Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1599/eng@2024-11-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.