Judicial Service Commission v Mbiti (Civil Appeal E307 of 2024) [2026] KECA 1605 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed the clerk's sacking was unfair, but refused to return him to his job, cutting compensation to twelve months' salary.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the appellant established valid and fair reasons for terminating the respondent’s employment within the meaning of sections 43 and 45 of the Employment Act; and
- 2.whether the remedies granted by the ELRC were available in law.
Key legal issues
#Whether the appellant established valid and fair reasons for the respondent's dismissal under sections 43 and 45 of the Employment Act
The dismissal lacked substantive justification and was unfair; mere suspicion or absence of a written handover record does not prove misconduct.
Sections 43, 45 and 47(5) place the burden of proving valid and fair reasons on the employer on a balance of probabilities. The respondent openly received the cash bail and issued official receipts; the station's practice required handover to the accountant in charge; the appellant's own witness testified that the accountant admitted receiving the money and undertook to refund it. No satisfactory explanation emerged why the respondent alone should bear responsibility. Mere suspicion cannot substitute proof.
Whether the ELRC had jurisdiction to order reinstatement more than three years after dismissal
It did not; section 12(3)(vii) of the ELRC Act is a mandatory jurisdictional limitation, and the reinstatement order was set aside.
Reinstatement under section 12(3)(vii) is couched in mandatory terms and constitutes a jurisdictional limitation on the court's remedial powers. By the date of judgment (12 February 2024) more than three years had elapsed from either the dismissal letter of 4 January 2021 or its effective date of 25 September 2019. Jurisdiction flows from statute and cannot be conferred by sympathy or judicial discretion, so the order could not stand.
Whether the award of salary arrears for one year and nine months was sustainable in law
It was not; the statutory remedy is compensation capped at twelve months' gross salary under section 49(1)(c), and the arrears award was substituted with such compensation.
Section 49(1)(c) empowers the court to award compensation not exceeding twelve months' gross salary having regard to the section 49(4) factors. The statutory remedy is compensation for unfair termination, not payment of salary for periods when no services were rendered, unless otherwise specifically provided by law. An arrears award of one year and nine months finds no support in section 49(1) and could not be sustained; a twelve-month compensation award was substituted considering length of service and the appellant's failure to justify the dismissal.
Procedural fairness of the disciplinary process
Not open for determination; the ELRC found procedural fairness was met and the respondent filed no cross-appeal, so those findings were binding.
The learned Judge expressly found that the disciplinary process complied with the Employment Act, the Fair Administrative Action Act and Article 47. Those findings were not challenged by cross-appeal, and in the absence of one they remain undisturbed and binding for purposes of the appeal. Procedural fairness therefore did not fall for determination and the appeal turned only on substantive justification and remedies.
Legal principles established
#- Section 12(3)(vii) of the Employment and Labour Relations Court Act is a jurisdictional limitation: once three years have elapsed from dismissal, the ELRC is divested of jurisdiction to order reinstatement, however unfair the termination.
- The employer bears the legal burden of proving valid and fair reasons for termination under sections 43, 45 and 47(5) of the Employment Act on a balance of probabilities; mere suspicion, administrative lapses or absence of documentation do not discharge that burden.
- Reinstatement is an exceptional, discretionary remedy, not an automatic consequence of a finding of unfair termination.
- Compensation for unfair termination must be anchored strictly within the statutory framework of section 49 of the Employment Act, capped at twelve months' gross salary.
- A respondent who does not cross-appeal cannot impeach or vary adverse findings of the trial court; unchallenged findings remain binding on appeal.
Court orders
#- 1.The order of reinstatement issued by the ELRC is set aside.
- 2.The award of salary arrears from 25th September 2019 to 28th June 2021 is set aside.
- 3.Substituted therefor is an award of compensation equivalent to twelve (12) months' gross salary pursuant to section 49(1)(c) of the Employment Act.
- 4.Save for the foregoing variation on remedies, the judgment of the Employment and Labour Relations Court is affirmed.
- 5.Each party shall bear its own costs both before the Employment and Labour Relations Court and in this appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court
- ELRC Cause No. E834 of 2021
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules, 2022 (Rule 31(1)) against the judgment of the Employment and Labour Relations Court
Relief refused
#Reinstatement of the respondent to his former position
The statutory three-year window under section 12(3)(vii) of the ELRC Act had expired, extinguishing the court's jurisdiction to order reinstatement
Payment of salary arrears for one year and nine months
The award has no statutory foundation; the remedy under section 49(1) is compensation, not salary for periods when no services were rendered
Costs
Each party shall bear its own costs both before the Employment and Labour Relations Court and in this appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the result, the appeal succeeds only to the limited extent that the orders of reinstatement and payment of salary arrears are set aside. They are substituted with an award of compensation equivalent to twelve (12) months' gross salary pursuant to section 49(1)(c) of the Employment Act.
Save for the foregoing variation on remedies, the judgment of the Employment and Labour Relations Court is hereby afirmed.
As each party has succeeded in part, and bearing in mind the nature of the issues raised in the appeal, we consider it appropriate that each party shall bear its own costs both before the Employment and Labour Relations Court and in this appeal.
Mere suspicion, however strong, cannot substitute proof of a valid reason for termination.
An employer is required to prove not merely suspicion or procedural irregularity, but the factual basis of the misconduct relied upon.
Jurisdiction flows from statute and cannot be enlarged by judicial discretion.
Once the statutory period prescribed by section 12(3)(vii) had expired, the Court's jurisdiction to order reinstatement was extinguished.
It is a strong thing for an appellate court to difier from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses.
Issues in the judgment
#The Kenfreight v Nguti decision is cited twice with different citations and attributed courts - [2019] eKLR (Supreme Court) and [2016] eKLR (Court of Appeal) - without clarification whether these are separate decisions.
The judgment is dated 31st July 2026 but the Notice of Appeal is dated 12th February 2024 and the Memorandum of Appeal 25th April 2024; no neutral citation number appears in the judgment as provided.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Judicial Service Commission v Mbiti (Civil Appeal E307 of 2024) [2026] KECA 1605 (KLR)", Case Analysis (2026). Court of Appeal, Nairobi. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1605/eng@2026-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.