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ELRCDismissedNot stated in the judgment text provided

Washika v Judicial Service Commission (Cause 1080 of 2018) [2023] KEELRC 797 (KLR)

Employment and Labour Relations Court
28 March 2023
5,203 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan magistrate dismissed for misconduct lost her case because refunding the money was treated as admitting the charges.

What this practically means

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Executive summary

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The claimant, a judicial officer appointed in 2009 and promoted to Senior Resident Magistrate, was acting Principal Magistrate at Lodwar Law Courts when an internal audit revealed irregular daily subsistence allowances totalling Kshs.745,280, including DSA paid for attending meetings of the Judicial Staff Superannuation Scheme and the Kenya Magistrates and Judges Association, entities outside the Judiciary, and overlapping DSA payments. By letters dated 15th August 2016 she was charged with gross misconduct and interdicted, and given 21 days to respond. Her only response, by letter dated 2nd September 2016, was to refund the full sum with a banker's cheque, which she did following directions from the Chief Registrar of the Judiciary and the auditor. She was heard orally before the JSC Human Resource Management Committee on 24th January 2017 and summarily dismissed on 22nd February 2017. She sued seeking declarations of unfair and unlawful termination, reinstatement with promotion, 12 months' compensation, general damages and costs, contending breach of Article 47, the Fair Administrative Action Act and Section 41 of the Employment Act, and bias from appearing before the same panel at her promotion interview. The respondent maintained the dismissal was justified gross misconduct. The court held that the claimant, having been notified of the charges and given an opportunity to respond, squandered that opportunity by only refunding the monies, which amounted to admission; refund did not cure the gross misconduct. The claim was dismissed with each party bearing 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 disciplinary process conducted by the respondent accorded the claimant a fair hearing and fair administrative action
  2. 2.Whether the summary dismissal of the claimant was for a valid and justified reason
  3. 3.Whether the claimant was denied the opportunity to respond to the charges and examine evidence and witnesses
  4. 4.Whether the respondent acted with malice in dismissing the claimant after she had refunded the monies
  5. 5.Whether reinstatement and compensation are available on the facts

Key legal issues

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01

Fair hearing in disciplinary proceedings under Section 41 of the Employment Act

Holding

The claimant was notified of the charges, given 21 days to respond, invited to an oral hearing and heard; her only response was to refund the monies, which amounted to an admission, so no procedural unfairness arose

Reasoning

The court traced the show-cause letter of 15th August 2016 with its 21-day response window, the interdiction letter, the claimant's reply of 2nd September 2016 attaching a refund, and the oral hearing before the JSC Committee on 24th January 2017 where she confirmed awareness of the charges and apologised. The refund plus apology constituted admission of the charges; the employer's obligation under Section 41 was satisfied and the claimant's failure to contest the allegations meant she squandered the internal mechanism.

p. 9
02

Whether the promotion interview and disciplinary hearing before the same panel amounted to bias or double jeopardy

Holding

The court did not find malice or bias; the claimant's admission and refund could not justify a claim that the respondent acted with malice

Reasoning

The claimant argued she appeared before the same Commissioners (Hon. Justice Muchelule and Hon. Justice Warsame) at the promotion interview and the disciplinary hearing, indicating pre-judgment. The respondent maintained the two processes were independent. The court held that given the claimant's admission and refund, the disciplinary hearing was merely to seek clarifications, and no malice was established.

p. 8
03

Whether gross misconduct justified summary dismissal notwithstanding refund of the monies

Holding

Refund of irregularly paid monies did not cure the gross misconduct; summary dismissal was a lawful sanction

Reasoning

The claimant admitted receiving DSA for attending JSSS and KMJA meetings, entities outside the Judiciary, contrary to a CRJ memo, and receiving overlapping DSA payments totalling large sums. She refunded Kshs.745,280 and apologised, accepting that public money was misused under her watch. The court held the admission and refund confirmed the charges rather than negating them, so the sanction of summary dismissal under Section 45(2) of the Employment Act and Article 172(1)(c) of the Constitution and the Judicial Service Act could not be faulted.

p. 9

Legal principles established

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  • An employee issued with notice of charges and given time to respond must give her explanation or defence; failing to do so, she cannot later claim unfair termination on grounds she was not heard
  • Section 41 of the Employment Act imposes mutual duties: the employer must notify and outline the charges, and the employee must make representations before a sanction issues

Court orders

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  1. 1.The claim is found without merit and is dismissed
  2. 2.Each party shall bear own costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; Employment and Labour Relations Court Act); claims framed on Article 47 of the Constitution and the Fair Administrative Action Act

Relief refused

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Declaration that the respondent unfairly and unlawfully terminated the claimant's employment

The claimant failed to respond to the charges within the 21 days given, offering only a refund, which amounted to admission of gross misconduct

p. 9

Order of reinstatement with promotion to Principal Magistrate

Reinstatement cannot issue on the findings that the disciplinary process and sanction were proper

p. 10

12 months' compensation for wrongful termination

Compensation not available where termination was justified

p. 10

General damages for contravention of fundamental rights and freedoms

Claim dismissed as the process adopted by the respondent was not faulted

p. 10

Costs

Each party shall bear 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.

Accordingly, the claim herein is found without merit and is hereby dismissed. Each party shall bear own costs.
p. 10Final orders - dismissal of the claim
The court cannot fault the process adopted by the respondent. There being no responses to the allegations made against the claimant, the sanction issued can equally not be faulted.
p. 9Fairness of the disciplinary process and sanction
The order of reinstatement on the findings above cannot issue. Compensation is not available in the circumstances of this case.
p. 10Reinstatement and compensation refused
an employee who squanders the opportunity to respond and give responses and defence wastes the opportunity and cannot salvage it by filing suit to urge what ought to have been addressed at the shop fioor.
p. 9Duty of the employee to respond to disciplinary charges

Issues in the judgment

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minor

Internal inconsistency in dates: the interdiction/charge letters are dated 15th August, 2016 but paragraph 19 refers to 'letter dated 15th August, 2015'; also the disciplinary hearing letter is undated but states the hearing 'will be on 24th January, 2016' while the hearing was on 24th January, 2017

minor

Internal inconsistency in refund figures and receipt date: paragraph 24 refers to 'receipt No.9331201 dated 31st September, 2016' (an impossible date) while paragraph 34 refers to the same receipt as 'dated 31st August, 2016'

minor

Paragraph 42 of the Determination is blank/numbered with no content

minor

Discrepancy in the audit report date relied on by the claimant: 'the auditor's report dated 2nd December, 20115'

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, "Washika v Judicial Service Commission (Cause 1080 of 2018) [2023] KEELRC 797 (KLR)", Case Analysis (2023). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/797/eng@2023-03-28

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