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ELRCPartially AllowedEmployment and Labour Relations Claim, memorandum of claim filed 29th November 2023 (number not stated in judgment)

Onyango v Speaker County Assembly of Migori & 3 others (Cause E088 of 2023) [2025] KEELRC 403 (KLR)

Employment and Labour Relations Court
17 February 2025
8,722 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~35 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant, formerly Clerk of the Migori County Assembly, challenged his interdiction and the revocation of his appointment on 14th December 2023 through a disciplinary process founded on charges mirroring Kisumu Anti-Corruption Case No. E002 of 2020. He sought a declaration that the process was unprocedural, illegal and a violation of Article 47 of the Constitution, and suspension of the revocation resolution pending the criminal case. The respondents maintained that Section 23 of the County Assembly Services Act was complied with, that pending criminal proceedings were no bar to discipline, and that the claimant, as Accounting Officer, bore responsibility for losses of Kshs.10,149,037.00 paid to two companies. The court found the revocation substantively justifiable on a balance of probability, applying the range of reasonable responses test, and confirmed that criminal proceedings do not bar concurrent internal discipline. However, the process was procedurally flawed because the respondents declined to supply the claimant with copies of the documents underlying the charges, offering only a brief 'access and peruse' session of about one and a half hours, which was insufficient for preparing a defence. Allegations of discrimination and breach of the sub judice rule failed as unpleaded afterthoughts lacking particulars. Reinstatement was declined as impracticable given the claimant's short service, pending criminal case and contribution to his own predicament. Judgment was entered for the claimant against the 2nd and 4th respondents with a declaration of unfair revocation, compensation equivalent of two months' gross salary and costs of the suit.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether revocation of the claimant's appointment as Clerk of Migori County Assembly was justifiable and fair
  2. 2.Whether the claimant is entitled to the reliefs sought
  3. 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

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01

Substantive justification for revocation of the Clerk's appointment

Holding

The respondents demonstrated on a preponderance of probabilities that they had substantial justification to revoke the claimant's employment

Reasoning

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.

p. 14
02

Procedural fairness - supply of documents

Holding

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

Reasoning

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.

p. 12
03

Whether pendency of the criminal case barred disciplinary proceedings

Holding

No; internal disciplinary processes and criminal proceedings are distinct and the employer was not obligated to await the criminal outcome

Reasoning

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.

p. 16
04

Alleged discrimination against the claimant compared to other accused employees

Holding

Rejected; the claimant neither pleaded discrimination nor provided particulars, so the burden could not shift to the respondents

Reasoning

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.

p. 9
05

Whether the County Assembly violated the sub judice rule by discussing a matter pending in court

Holding

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

Reasoning

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.

p. 10
06

Appropriate remedy

Holding

Reinstatement declined as impracticable; compensation equivalent of two months' gross salary awarded

Reasoning

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.

p. 18

Legal principles established

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  • 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

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  1. 1.Declaration that revocation of appointment of the claimant as Clerk Migori County Assembly was unfair
  2. 2.Equivalent of 2 months gross salary
  3. 3.Costs of this suit to the claimant against the 2nd and 4th respondents

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 under the Employment Act and Employment and Labour Relations Court Act (specific provision not stated in judgment)

Relief refused

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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

p. 17

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

p. 10

Costs

Costs of this suit awarded to the claimant against the 2nd and 4th respondents

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.

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.
p. 18Final orders/disposition
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
p. 14Substantive justification for termination
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
p. 12Procedural fairness - supply of documents
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
p. 16Criminal proceedings not a bar to disciplinary process
the court is not persuaded that reinstatement would be practicable in this instance
p. 17Reinstatement refused
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.
p. 15Right to documents underlying charges

Issues in the judgment

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minor

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

minor

The claimant's dates of suspension are stated inconsistently (12th January 2021, 27th July 2019, 27th August 2019, 27th August 2020)

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, "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.