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ELRCPartially AllowedMemorandum of claim dated 27.08.2022 (ELRC)

Rotich v Judicial Service Commission (Cause E772 of 2022) [2025] KEELRC 2166 (KLR)

Employment and Labour Relations Court
23 July 2025
3,423 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant, employed by the respondent (Judicial Service Commission) as a Clerical Officer on 17.06.2016 and deployed to the Kadhi's Court, Nairobi, was interdicted and subsequently summarily dismissed by letter dated 22.12.2021 for soliciting and receiving a bribe of Kshs.15,000 from a litigant, Ms. Halima Mwima Noor, in a succession cause. He claimed the dismissal was procedurally and substantively unfair, sought a declaration, reinstatement, compensation, unpaid dues, general damages for defamation, costs and interest. The respondent maintained the claimant admitted receiving the money in a private arrangement as a licensed process server, contrary to clause 8 of his contract, and that due process was followed. The court found the parties were in a contract of service and that the dismissal was for the alleged bribe. It held the dismissal procedurally unfair because the inquiry under section 25(1) of the Third Schedule of the Judicial Service Act was not carried out and the claimant was denied an opportunity to cross-examine Ms. Noor. On substance, the disciplinary committee itself had found that payment to process servers by lawyers or clients was prevailing practice, so the respondent maintained deficient operational requirements and had no valid reason to dismiss. Reinstatement was declined as time-barred; compensation for loss of employment, unpaid dues and defamation claims were also declined. The court awarded six months' gross salary less PAYE, issued a policy declaration regarding licensed process servers, and ordered each party to bear own 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 parties were in a contract of service
  2. 2.Whether the respondent dismissed the claimant and the reason for the dismissal
  3. 3.Whether the disciplinary procedure and the reason leading to the dismissal were unfair
  4. 4.What reliefs, if any, the claimant is entitled to

Key legal issues

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01

Procedural fairness of the disciplinary process

Holding

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

Reasoning

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.

p. 5
02

Validity of the reason for dismissal

Holding

The respondent had no valid reason to dismiss because the deficiency in operational requirements for process servers lay with the respondent, not the claimant

Reasoning

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.

p. 5
03

Entitlement to compensation under section 49 of the Employment Act

Holding

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

Reasoning

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.

p. 6
04

Reinstatement as a remedy

Holding

Declined as time-barred under section 12(3)(viii) of the Employment and Labour Relations Court Act

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.Declaration that the termination was unlawful, wrongful and unfair
  2. 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. 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. 4.Each party to bear own costs of the suit

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, 2007 and the Employment and Labour Relations Court Act (s.12)

Relief refused

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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

p. 6

Compensation for loss of employment

No reason attributable to the respondent barring the claimant from gainful engagement after dismissal was established

p. 6

Payment of unpaid salaries, allowances and benefits

Claim was in the nature of special damages requiring particularization and strict proof, which was not done

p. 6

General damages for defamation

Basis not established at all and no submissions made; deemed abandoned

p. 7

Costs

Each party to bear own costs of the suit.

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.

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.
p. 5Procedural fairness - disciplinary inquiry
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.
p. 6Validity of reason for dismissal
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.
p. 6Reinstatement - limitation
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.
p. 7Final orders - compensation
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.
p. 7Final orders - policy declaration
Each party to bear own costs of the suit.
p. 7Final orders - costs

Issues in the judgment

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minor

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

minor

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

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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, "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.