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ELRCDismissedPetition (filed December 1, 2021)

Gitonga v Judicial Service Commission & 3 others (Petition E192 of 2021) [2023] KEELRC 2365 (KLR)

Employment and Labour Relations Court of Kenya
28 September 2023
9,254 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~37 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld a Judiciary employee's dismissal over Kshs 720,000 in suspicious deposits, confirming employers can delegate disciplinary powers and need only prove misconduct on a balance of probabilities.

What this practically means

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Executive summary

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The petitioner, a judicial staff member employed by the Judiciary since 2010 and last serving as Office Administrator at Mavoko Law Courts, challenged her dismissal following the receipt of Kshs 720,000 through her KCB account between 2015 and 2018 from one Jacob Waka, an Accountant at Maua Law Courts. The money was traced to the Maua Law Courts Deposit Account following an internal audit. She was suspended in October 2019, subjected to disciplinary proceedings before the Human Resource Management Advisory Committee, required to refund the sum, and dismissed with effect from a date approved by the Judicial Service Commission on December 10, 2020. Her internal appeal was dismissed on June 28, 2021. She petitioned the Employment and Labour Relations Court seeking declarations that the disciplinary process was unconstitutional, that the JSC could not delegate disciplinary powers to the 3rd and 4th respondents, orders of judicial review quashing the dismissal, reinstatement with back pay, compensation and aggravated damages. The respondents maintained that the process complied with the Constitution, the Judicial Service Act, the Fair Administrative Action Act and the Judiciary HR Manual, and that the petitioner had colluded with Waka to defraud the Judiciary. The court found no discrimination, held that the JSC may lawfully delegate disciplinary functions under sections 14 and 32 of the Judicial Service Act, that the HRMAC acted within its mandate, that there was a valid and fair reason for termination on a preponderance of probabilities, and that the procedure was fair. The petition was dismissed with no orders as to 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 respondents were biased or treated the petitioner in a discriminatory manner or unfairly
  2. 2.Whether termination of the petitioner's employment was in conformity with the provisions of the Constitution of Kenya, 2010, Fair Administrative Action Act, Judicial Service Act and the Judiciary Human Resource Policies and Procedures Manual
  3. 3.Whether the Judicial Service Commission could delegate disciplinary powers to the 3rd and 4th respondents
  4. 4.Whether the petitioner is entitled to the reliefs sought

Key legal issues

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01

Delegation of disciplinary powers by the Judicial Service Commission

Holding

The JSC lawfully delegated disciplinary powers to the Human Resource Management Advisory Committee under sections 14 and 32 of the Judicial Service Act and the HR Manual; the 3rd and 4th respondents acted within their mandate

Reasoning

Section 14 permits delegation of functions necessary for day-to-day management to subcommittees or the secretariat, and section 32 requires a committee or panel for discipline. The court found nothing in the Constitution barring delegation, noting Commissioners transact business through committees. The HRMAC was therefore a properly constituted committee with disciplinary powers.

p. 16
02

Discrimination and unequal treatment

Holding

Allegation of bias/discrimination against the petitioner unsustainable for want of evidence

Reasoning

The petitioner relied on comparisons with Lilian Wambui Waigwa and Rose Murima Wanjohi but did not avail the Audit Report or evidence of how the respondents dealt with those cases. Without essential particulars the respondents had nothing to disprove.

p. 14
03

Substantive justification for termination

Holding

The 1st respondent had a valid and fair reason to terminate for gross misconduct (collusion to defraud Judiciary funds)

Reasoning

The petitioner admitted receipt of 15 deposits totalling Kshs 720,000 over nearly three years, retained portions, disbursed funds on instructions to mobile numbers, and later apologised for wrongdoing. No evidence supported the claim of innocent refunds, and collusion was inferable from her conduct.

p. 20
04

Procedural fairness of the disciplinary process

Holding

The disciplinary process complied with article 47 of the Constitution, the Fair Administrative Action Act, the Judicial Service Act and the HR Manual

Reasoning

The petitioner received a notice to show cause, was granted extensions, was accorded 14 days' notice of hearing, participated in hearings (including virtual ones), could bring documents and witnesses, and had a right of appeal which she exercised. She never requested documents or cross-examination.

Legal principles established

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  • The Judicial Service Commission may delegate its functions, including disciplinary functions, to subcommittees or the secretariat under section 14 of the Judicial Service Act
  • For a termination to pass the fairness test there must be both substantive justification and procedural fairness
  • In disciplinary proceedings the employer need not prove misconduct beyond reasonable doubt; a preponderance of probabilities suffices

Court orders

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  1. 1.The Petition is dismissed
  2. 2.No orders as to costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 23 of the Constitution of Kenya, 2010 (constitutional petition for enforcement of fundamental rights and freedoms)

Relief refused

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Declarations of unconstitutionality, quashing orders, reinstatement, withheld salaries, compensation and damages

Termination was substantively justifiable and procedurally fair; reliefs do not arise

p. 23

Costs of suit and interest

Petition dismissed with no orders as to costs

p. 23

Costs

No orders as to 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.

In the upshot, the Petition herein is unsustainable and it is accordingly dismissed with no orders as to costs.
p. 23Final orders - dismissal of the petition
In the circumstances, it is the finding of the court that the 1st respondent has demonstrated that it had a valid and fair reason to terminate the petitioner's employment and did so in accordance with a fair procedure.
p. 23Substantive justification and procedural fairness
Having found that termination of the petitioner's employment by the 1st respondent was substantively justifiable and procedurally fair, the issue as to whether the petitioner is entitled to the reliefs sought does not arise for determination.
p. 23Reliefs refused
the court is satisfied that the respondentshave demonstrated that the 1st respondent's Human Resource Management Advisory Committee (HRMAC) is a committee constituted by the 1st respondent with disciplinary powers and acted within its mandate.
p. 16Delegation and jurisdiction of the disciplinary committee
the respondents are not duty bound to prove collusion beyond reasonable doubt, the standard in criminal cases, a preponderance of probabilities is suficient in this case.
p. 19Standard of proof in disciplinary proceedings

Issues in the judgment

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minor

Internal inconsistency in the dates of the dismissal letter and termination: at one point the letter is described as dated January 4, 2019 and dismissal effective October 24, 2019, elsewhere dated January 4, 2021

minor

Contradiction on whether the petitioner was suspended on October 24, 2019 or dismissed on that date

minor

Contradictory statement on the duration of employment - 'from 2010 to the date of termination in 2021' whereas dismissal letter dated January 2021/2020

minor

Inconsistent dating of the petitioner's statement to the DCI - summoned December 3, 2019 but 'recorded a statement on March 26, 2019'

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, "Gitonga v Judicial Service Commission & 3 others (Petition E192 of 2021) [2023] KEELRC 2365 (KLR)", Case Analysis (2023). Petition (filed December 1, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2365/eng@2023-09-28

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