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ELRCPartially AllowedPetition dated 9th April 2024 (number not stated in judgment)

Kyalo & 6 others v Kenya Railways Corporation & 8 others (Petition E049 of 2024) [2025] KEELRC 828 (KLR)

Employment and Labour Relations Court of Kenya
11 March 2025
HWHellen Wasilwa
12,655 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~51 min to read original · ~4 min brief

The bottom line

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Kenya Railways employees fired over forged certificates lost most claims but won the right to their pension and terminal dues.

What this practically means

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Executive summary

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Seven former employees of Kenya Railways Corporation petitioned the court under Articles 3(1), 10, 25, 27, 28, 43, 47 and 50 of the Constitution, alleging that their summary dismissals on grounds of forged academic certificates were unfair and unconstitutional, and that the withholding of their terminal dues, pension and NSSF benefits violated their rights. They sought declarations of rights violations, an injunction against adverse action including prosecution and salary recovery, payment of employment benefits, costs and interest. The Respondents countered that the Petitioners' certificates were confirmed forged by the certifying institutions (KNEC, the Kenya School of Law and the Kenya Institute of Management), that fair disciplinary processes were followed, and that the 4th Respondent's advisory directing that no benefits be processed for persons employed on fraudulent qualifications was within its statutory mandate. The court found that the Petitioners had forged their academic certificates to gain employment, that they were afforded proper disciplinary processes, and that the dismissals were valid and lawful under section 45(2) of the Employment Act. The claims of rights violations arising from the dismissal therefore failed. However, the court held that even on lawful summary dismissal, section 18(4) of the Employment Act requires payment of all dues to the date of dismissal, and that pension is an accrued right under section 5 of the Pension Act which cannot be withheld despite misconduct. Following Felister Waithegeni Mugweru v National Police Service Commission, the court declared the withholding of terminal dues unconstitutional and void, set that decision aside, and directed payment of the Petitioners' dues per their terminal letters, with no order of 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 Petitioners' academic certificates were forged
  2. 2.Whether the Petitioners' dismissal followed a fair disciplinary process and was procedurally and substantively fair under section 45(2) of the Employment Act
  3. 3.Whether the Respondents violated the Petitioners' rights under Articles 25, 27, 28, 43, 47 and 50 of the Constitution
  4. 4.Whether the withholding of the Petitioners' terminal dues, pension and NSSF benefits pursuant to the 4th Respondent's advisory was constitutional

Key legal issues

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01

Whether the Petitioners' academic certificates were forged

Holding

The court found the forgery proved on the evidence from the certifying institutions

Reasoning

Verification reports from KNEC, the Kenya School of Law and the Kenya Institute of Management confirmed the certificates were not authentic, and the Petitioners offered only bare denials without evidence of enrolment or fee payment. The court accepted the institutions' findings as establishing that the certificates were forged and used to gain employment.

p. 21
02

Whether the disciplinary process and termination were fair

Holding

The termination was procedurally and substantively fair under section 45(2) of the Employment Act

Reasoning

The Petitioners were issued show-cause letters, given seven days to respond, some responded or resigned or requested early retirement, and all attended disciplinary hearings. They could not justify the authenticity of their documents. The court therefore held that valid reasons existed and due process was followed, so the dismissals were proper.

p. 21
03

Whether withholding terminal dues and pension benefits was constitutional

Holding

The withholding was unconstitutional and void, and the Petitioners were entitled to their dues

Reasoning

Relying on section 18(4) of the Employment Act and section 5 of the Pension Act, and applying Felister Waithegeni Mugweru v National Police Service Commission, the court held that dismissal for lawful cause does not disqualify an employee from accrued pension and benefits since services were rendered. The 4th Respondent's advisory could not lawfully defeat these accrued rights.

p. 22

Legal principles established

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  • Even where an employee is summarily dismissed for lawful cause, all moneys, allowances and benefits due up to the date of dismissal remain payable under section 18(4) of the Employment Act
  • Pension is an accrued right which cannot be denied or withheld on account of an employee's misconduct, because services were rendered; every officer has an absolute right to pension and gratuity

Court orders

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  1. 1.A declaration that the decision to withhold the Petitioners' terminal dues/pension/NSSF is unconstitutional, null and void, and that decision is set aside
  2. 2.A direction that the Petitioners be paid their dues as per their terminal letters
  3. 3.No order of costs

The bench

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

HW
majority

Wrote the judgment

Jurisdiction invoked
Articles 22, 23(1) read with Article 165 of the Constitution of Kenya, 2010 (enforcement of the Bill of Rights)

Relief refused

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Declarations that the dismissal itself violated Articles 27, 43, 47 and 50

The court found the forgery proved and the disciplinary process proper

p. 21

An order restraining the Respondents from taking adverse action (including prosecution and recovery of salaries)

No evidence of intention to recover assets or act unlawfully; disciplinary sanctions were within the employer's discretion

Costs of the petition

Court declined to award costs despite the Petitioners' success on the terminal dues claim

p. 22

Costs

No order of costs - each party to bear their 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.

From the evidence adduced herein, the petitioners were found to have forged their academic certificates which certificates they presented to the 1st respondent to gain employment.
p. 21proof of forgery
The process was above board with the finding that there were valid reason to warrant termination and due process being followed as per section 45(2) of the employment act.
p. 21fairness of dismissal
Where an employee is summarily dismissed for lawful cause, the employee shall, on dismissal be paid all moneys, allowances and benefits due to him up to the date of his dismissal
p. 22section 18(4) Employment Act
Indeed pension is an accrued right which cannot be denied or withheld given that despite the mistakes of the employee, services were rendered.
p. 22accrued pension rights
I find this unconstitutional null and void and I set that decision aside and direct that the petitioners be paid their dues as per their terminal letters. There will be no order of costs.
p. 22final orders

Issues in the judgment

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minor

The judgment refers to a '3rd and 9th Respondents' in the Grounds of Opposition and submissions, but the coram section only identifies Respondents 1 to 8 and never names the 9th Respondent

minor

The Petitioners' position is inconsistently stated on resignation: the Petitioners claim the 1st Petitioner and 4th Petitioner resigned before any disciplinary action, while the 1st Respondent says the 1st and 7th Petitioners resigned after receiving suspension letters

minor

The suspension letter date for the 2nd Petitioner is given as '31st June 2023', a date that does not exist

minor

The case name of the Lavington Security Guards authority is inconsistently spelled within the judgment ('Pius Machafer Isundu' in the Petitioners' submissions versus 'Pius Machafu Isindu' in the 1st Respondent's submissions)

minor

The PSC directive date is given as 19th October 2022 in most passages but as 19th October 2023 in the 4th Respondent's submissions heading

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kyalo & 6 others v Kenya Railways Corporation & 8 others (Petition E049 of 2024) [2025] KEELRC 828 (KLR)", Case Analysis (2025). Petition dated 9th April 2024 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/828/eng@2025-03-11

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