Onyango v Speaker County Assembly of Migori & 3 others (Cause E088 of 2023) [2025] KEELRC 403 (KLR)
The bottom line
#A Kenyan court ruled Migori County Assembly unfairly revoked its Clerk's appointment, but awarded only two months' salary instead of reinstatement.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether revocation of the claimant's appointment as Clerk of Migori County Assembly was justifiable and fair
- 2.Whether the claimant is entitled to the reliefs sought
- 3.Preliminary issues raised by the claimant's counsel: alleged discrimination and whether the County Assembly discussed a matter pending in court
Key legal issues
#Substantive justification for revocation of the Clerk's appointment
The respondents demonstrated on a preponderance of probabilities that they had substantial justification to revoke the claimant's employment
The claimant was the Accounting and Authorised Officer responsible for all financial and procurement matters. Payments to Pamawe Construction and Travel Times Ltd resulted in a loss of Kshs.10,149,037.00. The standard of proof is on a balance of probability, not beyond reasonable doubt, and the range of reasonable responses test applies to the employer's decision.
Procedural fairness - supply of documents
The process was procedurally flawed because the respondents did not supply the claimant with copies of the documents on which the charges were based; the 'access and peruse' alternative of about 1½ hours was insufficient
Although Section 23 of the County Assembly Services Act is comprehensive, it is silent on the Clerk's right to documents. That right is an essential ingredient of fair hearing under fair administrative action principles. Authorities (Ol Pejeta, Regent Management, Postal Corporation) confirm that denying copies of documents integral to preparing a defence makes the termination procedurally unfair.
Whether pendency of the criminal case barred disciplinary proceedings
No; internal disciplinary processes and criminal proceedings are distinct and the employer was not obligated to await the criminal outcome
Relying on Regent Management, Judicial Service Commission v Shollei, R. v. Wigglesworth and Geoffrey Kiragu Njogu, the court held that disciplinary proceedings are anchored on the employment contract with a balance of probability standard, while criminal proceedings require proof beyond reasonable doubt; the same act may give rise to both consequences.
Alleged discrimination against the claimant compared to other accused employees
Rejected; the claimant neither pleaded discrimination nor provided particulars, so the burden could not shift to the respondents
Parties are bound by their pleadings. Both Article 27 of the Constitution and Section 5(3) of the Employment Act prohibit discrimination, but the alleged victim must lay the factual basis before the burden shifts. RWI confirmed other employees were also subjected to disciplinary process, one being dismissed.
Whether the County Assembly violated the sub judice rule by discussing a matter pending in court
Rejected as an unpleaded afterthought; the court was not persuaded the Assembly discussed the court case, it merely received the Adhoc Select Committee's report
The issue was not pleaded despite an opportunity to amend the claim. Further, courts will not question every procedural infraction in parliamentary or County Assembly proceedings absent demonstrated breach meriting intervention, citing Speaker of the Senate and the Namwamba case.
Appropriate remedy
Reinstatement declined as impracticable; compensation equivalent of two months' gross salary awarded
Section 49(4) factors: the claimant served only about 2 years, wished to remain employed, has a pending criminal case and substantially contributed to his revocation. Specific performance is not available in contracts of personal service absent special circumstances. Compensation under Section 49(1)(c) follows per Kenfreight (EA) Ltd v Benson R. Nguti.
Legal principles established
#- For a termination to pass the fairness test there must be both substantive justification and procedural fairness
- Pendency of criminal proceedings is not a bar to internal disciplinary processes on the same facts, as they are distinct processes with different standards of proof
- An employee facing disciplinary charges is entitled to the documents supporting the charges; denial of them renders the process unfair
Court orders
#- 1.Declaration that revocation of appointment of the claimant as Clerk Migori County Assembly was unfair
- 2.Equivalent of 2 months gross salary
- 3.Costs of this suit to the claimant against the 2nd and 4th respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and Employment and Labour Relations Court Act (specific provision not stated in judgment)
Relief refused
#Order suspending the 4th respondent's resolution dated 14th December 2023 revoking the claimant's appointment (reinstatement)
Reinstatement not practicable; claimant served only about 2 years, left office in 2019, has a pending criminal case and substantially contributed to his revocation; no special circumstances to overcome the bar on specific performance of contracts of personal service
Declaration of discrimination and nullification of County Assembly proceedings for violating the sub judice rule
Neither issue was pleaded or supported by particulars; no relief sought on the sub judice issue
Costs
Costs of this suit awarded to the claimant against the 2nd and 4th respondents
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.
a. Declaration that revocation of appointment of the claimant as Clerk Migori County Assembly was unfair. b. Equivalent of 2 months gross salary. c. Costs of this suit.
the respondents have demonstrated on a preponderance of probabilities that they had a substantial justification to revoke the claimant's employment as Clerk of the Migori County Assembly
the process is faulted on the ground of fairness in that the respondents did not supply the claimant with copies of documents on the basis of which the charges were drawn
Clearly, the respondents were not obligated to await the outcome of the criminal case as inter alia its purposes is to remedy a social wrong while internal disciplinary process are intended to remedy wrongs against the employer
the court is not persuaded that reinstatement would be practicable in this instance
Even in criminal trials, which are more serious in nature, an accused is entitled to the statements that support the charges laid against him. That is the essence of fairness even outside a judicial setting.
Issues in the judgment
#The judgment gives inconsistent dates for the Gazette Notice publishing the revocation, referring to it as published in December 2023 but also as 14th December 2024 and 19th December 2024
The claimant's dates of suspension are stated inconsistently (12th January 2021, 27th July 2019, 27th August 2019, 27th August 2020)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Onyango v Speaker County Assembly of Migori & 3 others (Cause E088 of 2023) [2025] KEELRC 403 (KLR)", Case Analysis (2025). Employment and Labour Relations Claim, memorandum of claim filed 29th November 2023 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/403/eng@2025-02-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.