Rotich v Judicial Service Commission (Cause E772 of 2022) [2025] KEELRC 2166 (KLR)
The bottom line
#Kenya's Employment Court ruled the Judicial Service Commission unfairly dismissed a court assistant, awarding him six months' salary but denying 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 the parties were in a contract of service
- 2.Whether the respondent dismissed the claimant and the reason for the dismissal
- 3.Whether the disciplinary procedure and the reason leading to the dismissal were unfair
- 4.What reliefs, if any, the claimant is entitled to
Key legal issues
#Procedural fairness of the disciplinary process
The procedure adopted was not fair: the section 25(1) Third Schedule inquiry was not carried out and the claimant's request to cross-examine Ms. Halima Noor was not allowed
Although notice was given and a hearing conducted, the Human Resource Management Advisory Committee's recommendation to absolve the claimant was overturned without the inquiry contemplated by section 25(1) of the Third Schedule of the Judicial Service Act. The claimant also requested cross-examination of Ms. Halima Noor but that opportunity was not allowed. These procedural defects resulted in a miscarriage of fairness, rendering the dismissal procedurally unfair.
Validity of the reason for dismissal
The respondent had no valid reason to dismiss because the deficiency in operational requirements for process servers lay with the respondent, not the claimant
The disciplinary committee itself found that process servers in the Judiciary/Kadhi's Court being paid by lawyers or clients was prevailing practice. The court held the respondent maintained deficient operational requirements regarding the claimant's role, and the claimant ought not to be punished for that deficiency, which required policy intervention. Hence no valid reason for dismissal existed under section 45 of the Employment Act, and the termination was unfair.
Entitlement to compensation under section 49 of the Employment Act
Six months' gross salary less PAYE awarded, taking account of the claimant's contribution to the dismissal by retaining Kshs.2,000 in unexplained circumstances
The court weighed the section 49 factors, noting the claimant contributed to his termination by retaining Kshs.2,000.00 in unexplained circumstances, with contradictory evidence about whether the full Kshs.15,000 was refunded. In the circumstances, six months' compensation less PAYE was considered to balance justice for the parties, and payment was ordered by 01.11.2025 failing interest at court rates.
Reinstatement as a remedy
Declined as time-barred under section 12(3)(viii) of the Employment and Labour Relations Court Act
Reinstatement must be ordered within three years of dismissal. The dismissal was effective 07.07.2021 and communicated on 22.12.2021, and three years lapsed on 22.12.2024. Even measuring from the appeal decision of 07.06.2022, the period would lapse on or about 07.06.2025. The remedy therefore appears time barred and the court did not consider the section 49 appropriateness factors.
Legal principles established
#- It is an unfair labour practice for an employer to fail to act on reported deficiencies in its operational policies and systems, and to visit adverse consequences on an employee for losses attributable to such deficiencies; where such practices ground a termination, the termination is unfair
- Failure to carry out the inquiry contemplated under section 25(1) of the Third Schedule of the Judicial Service Act renders the disciplinary procedure unfair
- Reinstatement is available only within three years of dismissal under section 12(3)(viii) of the Employment and Labour Relations Court Act
Court orders
#- 1.Declaration that the termination was unlawful, wrongful and unfair
- 2.Respondent to pay the claimant 6 months' gross salaries at the rate of the last gross monthly salary, less PAYE, to be paid by 01.11.2025 failing interest at court rates from the date of judgment till full payment
- 3.Declaration that the respondent to issue a standing policy where licenced court process servers may be involved in serving court processes at the instance of litigants
- 4.Each party to bear own costs of the suit
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, 2007 and the Employment and Labour Relations Court Act (s.12)
Relief refused
#Reinstatement into service without loss of any benefit
The three-year limitation period for reinstatement under section 12 of the Employment and Labour Relations Court Act had lapsed
Compensation for loss of employment
No reason attributable to the respondent barring the claimant from gainful engagement after dismissal was established
Payment of unpaid salaries, allowances and benefits
Claim was in the nature of special damages requiring particularization and strict proof, which was not done
General damages for defamation
Basis not established at all and no submissions made; deemed abandoned
Costs
Each party to bear own costs of the suit.
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.
an inquiry per section 25 (1) of the 3rd schedule of the Judicial Service Act was not carried out with the efiect that the procedural defect resulted in miscarriage of fairness.
it cannot be said that the respondent had a valid reason to dismiss as at termination or dismissal date. The claimant's case is upheld that the termination was unfair.
The claimant is not entitled to reinstatement into service without loss of any benefit because the three years of limitation efiective the date of dismissal attached to relief of reinstatement per section 12 of the Employment and Labour Relations Court Act have since lapsed.
The respondent to pay the claimant 6 months' gross salaries at the rate of the last gross – monthly salary and less PAYE as computed and included in the final decree between the parties and to pay by 01.11.2025 failing interest to run thereon at court rates from the date of this judgment till full payment.
The declaration the respondent to issue a standing policy where licenced court process servers may be involved in serving court processes at the instance of litigants.
Each party to bear own costs of the suit.
Issues in the judgment
#The memorandum of claim date is stated inconsistently in the judgment - opening paragraphs record it as dated 27.08.2022 while the respondent's amended response is said to seek dismissal of a memorandum of claim dated 27.10.2022
Contradictory evidence on refund of the Kshs.15,000 noted by the court - claimant said he retained Kshs.2,000 while CW3 testified the whole amount was refunded
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rotich v Judicial Service Commission (Cause E772 of 2022) [2025] KEELRC 2166 (KLR)", Case Analysis (2025). Memorandum of claim dated 27.08.2022 (ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2166/eng@2025-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.