Oboge v Judicial Service Commission (Cause E145 of 2021) [2022] KEELRC 321 (KLR)
The bottom line
#Kenya's Employment Court ruled the Judiciary unfairly dismissed an ICT officer without a proper investigation, ordered his reinstatement with full back pay.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there is a legal requirement for inquiry or investigation by the Chief Justice
- 2.Whether the Petitioner's dismissal was fair or unfair/unlawful
- 3.Whether the nonattendance of Mr. Okeyo was fatal to the disciplinary proceedings
- 4.Whether the Petitioner is entitled to the reliefs sought
Key legal issues
#Inquiry under Rule 25(1) of the Third Schedule to the Judicial Service Act
The Chief Justice was not obligated to conduct an inquiry; the word 'may' is permissive, and seeking information from the Petitioner amounted to an inquiry.
The Court distinguished 'inquiry' in Rule 25(1) from 'investigation' in Rule 25(3), holding the former optional and the latter mandatory. Black's Law Dictionary definitions were adopted, and the Respondent's letter requiring the Petitioner to explain his role satisfied the permissive inquiry requirement. Authority on the permissive 'may' was applied.
Substantive justification for dismissal
The Respondent failed on a balance of probabilities to show a valid and fair reason for dismissal, since the core witness Mr. Okeyo neither recorded a statement nor testified.
The single charge of gross misconduct rested entirely on Mr. Okeyo's allegations. The two witnesses heard did not implicate the Petitioner. Reliance on the Okeyo affidavit filed before the PPARB was disingenuous, as it was not produced as an exhibit in the disciplinary hearing and was never tested by cross-examination.
Procedural fairness and want of investigation
The dismissal was procedurally unfair because no investigation was conducted as mandated by Rule 25(3), and the core witness was dispensed with without cogent reasons.
The Court held that a disciplinary hearing is not an investigation contemplated by Rule 25(3) or the HR Manual paragraph D.7.3. The PPARB had expressly directed an investigation, yet only a 56-minute hearing occurred. The adjournments to secure Mr. Okeyo showed his evidence was crucial, yet the Respondent failed to summon him and dispensed with his attendance without factual justification, breaching Article 47 and the Fair Administrative Actions Act.
Remedies: reinstatement versus compensation
Compensation was refused but reinstatement (or deployment in the alternative) was granted, being practicable and within the three-year limit.
Following Kenya Broadcasting Corporation v Geoffrey Wakio, compensation and reinstatement cannot be awarded simultaneously. Reinstatement was held practicable: the Petitioner had a clean record, wished to continue serving, had served about nine years, and the Judiciary needs human capital. Section 12(3)(vii) of the ELRC Act permitted the order within three years of dismissal.
Legal principles established
#- The word 'may' in Rule 25(1) of the Third Schedule to the Judicial Service Act makes an inquiry by the Chief Justice optional, while Rule 25(3) makes an investigation by the Commission mandatory if disciplinary proceedings continue; a disciplinary hearing is not an investigation.
- A termination must pass both the substantive justification and procedural fairness tests under Sections 41, 43, 45 and 47(5) of the Employment Act.
- Dismissal founded on allegations made by a complainant who never recorded a statement or testified, and whose affidavit was not tested by cross-examination, lacks a substratum.
- Reinstatement is a discretionary remedy, not an automatic right, and is subject to the three-year limit in Section 12(3)(vii) of the ELRC Act.
Court orders
#- 1.The proceedings and determination to dismiss the Petitioner on 27th March 2019 were in contravention of the provisions of Constitution of Kenya 2010, Fair Administrative Actions Act and the Employment Act and were therefore unlawful and are hereby set aside
- 2.The Respondent is ordered to reinstate the Petitioner to his employment with immediate effect to the Office of ICT Officer in the ICT Directorate without loss of back pay salary and or benefits
- 3.In the alternative, the Respondent shall deploy the Petitioner to a position equivalent to ICT Officer without loss of back pay salary and/or benefits
- 4.There shall be no order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(a) and 165(3) of the Constitution; Employment and Labour Relations Court Act
Relief refused
#Compensation for violation of fundamental rights and freedoms
Reliance on Kenya Broadcasting Corporation v Geoffrey Wakio that compensation and reinstatement cannot be granted simultaneously; other than delay, the Petitioner suffered no other prejudice
Costs
There shall be no order as to costs.
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.
the use of word 'may' by the provision suggests that the Chief Justice is not obligated to conduct an inquiry and seeking information from the Petitioner as was the case herein would amount to an inquiry, the Court so finds.
The Court is of the view that a disciplinary hearing is not an investigation as envisioned by Rule 25(3).
it is the finding of the Court that the Respondent has not on a balance of probabilities shown that it had a valid and fair reason to dismiss the Petitioner from employment on 27th March 2018.
The veracity of his allegations against the Petitioner were not tested by cross examination and remain as such, allegations.
(i) The proceedings and determination to dismiss the Petitioner on 27th March 2019 were in contravention of the provisions of Constitution of Kenya 2010, Fair Administrative Actions Act and the Employment Act and were therefore unlawful and are hereby set aside.
(ii) The Respondent is ordered to reinstate the Petitioner to his employment with immediate effect to the Office of ICT Officer in the ICT Directorate without loss of back pay salary and or benefits.
(iv) There shall be no order as to costs.
Issues in the judgment
#Internal inconsistency in the date of dismissal: the Court repeatedly refers to the dismissal as occurring on 27th March 2018 although the pleadings and final orders state 27th March 2019.
Conflicting dates of interdiction within the judgment: earlier passages state 12th April 2017, later passages state 12th February 2017.
Duplicate paragraph numbering: paragraph 144 appears twice with different content.
Typographical error citing 'Constitution of Kenya 2020' for Article 172(1)(c).
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Omundi v Judicial Service Commission & another (Cause E046 of 2023) [2025] KEELRC 1886 (KLR)[2025] KEELRC 1886 (KLR)27 Jun 2025
Cite this brief
#Cite this brief
Caselaw, "Oboge v Judicial Service Commission (Cause E145 of 2021) [2022] KEELRC 321 (KLR)", Case Analysis (2022). Petition dated 13th September 2021 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/321/eng@2022-03-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.