Sikulu v Public Service Commission & 12 others; Okwiri & another (Interested Parties) (Cause E729 of 2022) [2025] KEELRC 2522 (KLR)
The bottom line
#Kenya's Employment Court ruled a public officer's reprimand unfair because his employer never proved his involvement, and awarded him Kshs 350,000 in withheld salary.
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 Claimant was subjected to unfair labour practices and discriminated against by the Respondents
- 2.Whether the disciplinary action taken against the Claimant was unfair and unlawful
- 3.Whether the Claimant is entitled to the reliefs sought
Key legal issues
#Unfair labour practices and discrimination in promotion
Claim failed; the Claimant earned three promotions between 2016 and the hearing and led no evidence of being treated less favourably than similarly situated officers
The Claimant did not dispute that he was promoted twice (2016 and 2019) and again during the proceedings. His earlier petition and appeal on the same promotion grievance were dismissed, the Court of Appeal finding the respondents acted without malice and within their mandate under Regulation E.27. No prima facie case of differential treatment of similarly situated comparators was established, so the burden never shifted to the employer.
Substantive fairness of the disciplinary action
No substantive justification for the severe reprimand; the investigation report did not show the Claimant's role or culpability in the fraudulent promotions
The exhibited investigation report did not indicate the Claimant's role or level of culpability. Being a potential beneficiary of the fraudulent promotions was not proof of guilt, as demonstrated by the 13th Respondent, also a listed beneficiary, who was exempted. In-depth investigations ought to have preceded the conclusion of gross misconduct.
Procedural fairness of the disciplinary process
Process was flawed and procedurally unfair; the Claimant was denied the primary evidence and an oral hearing
The Claimant was never supplied with the impugned promotion letter, which was the primary evidence against him, preventing him from mounting a defence. He was also not invited to a disciplinary hearing before the severe reprimand, and the Committee minutes did not show his presence. With dismissal contemplated, Section 41 of the Employment Act required an oral hearing.
Entitlement to withheld salary
Claimant entitled to Kshs 350,000 withheld during interdiction, following from the finding of unfair disciplinary action
Having found the disciplinary action substantively and procedurally unfair, the Court held that the salary withheld during the period of interdiction must be paid. However, general, exemplary and punitive damages were refused because the claims of unfair labour practices and discrimination failed.
Legal principles established
#- Potential benefit from a fraudulent transaction does not automatically establish culpability; the employer must investigate actual culpability before imposing discipline
- Where dismissal is contemplated, Section 41 of the Employment Act requires an oral hearing; where an employee's entire career is at stake, an oral hearing is necessary
- The employee alleging discrimination must first establish a prima facie case before the burden shifts to the employer under Section 5(7) of the Employment Act
Court orders
#- 1.A declaration that the disciplinary action against the Claimant by way of severe reprimand was substantively and procedurally unfair
- 2.The Claimant is entitled to the sum of Kshs 350,000/= being his salary withheld during the period of interdiction
- 3.Each party bears their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (claim for unfair labour practices under the Employment Act)
Relief refused
#Declaration of infringement of fair labour practices / damages for unfair labour practices and discrimination
Claimant failed to establish a prima facie case of discrimination and his promotion-stagnation claim failed, given three promotions since 2016 and prior dismissal of his 2013 petition and appeal
Orders to expunge interdiction documents and to promote the Claimant to a level commensurate with his qualifications
Not granted; only the declaration and withheld salary were awarded
Exemplary and punitive damages
Not awarded; damages claim disallowed
Costs
Each party bears their own costs, since the employment relationship is still subsisting
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 the disciplinary action against the Claimant by way of severe reprimand was substantively and procedurally unfair.
The Claimant is entitled to the sum of Kshs 350,000/= being his salary withheld during the period of interdiction.
As the employment relationship is still subsisting, the Court will be inclined to order that each party bears their own costs.
the fact that the Claimant was a potential beneficiary of the fraudulent promotions does not automatically translate to culpability on his part.
Section 41 provides the minimum standards of a fair procedure that an employer ought to comply with
the employee alleging discrimination is first required to establish a prima facie case for discrimination in order for the burden to shift.
Issues in the judgment
#Internal inconsistency in the dates of the Claimant's second promotion: RW1 testified promotion on 11th February 2016, while the judgment elsewhere records 11th November 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sikulu v Public Service Commission & 12 others; Okwiri & another (Interested Parties) (Cause E729 of 2022) [2025] KEELRC 2522 (KLR)", Case Analysis (2025). ELRC Claim (Nairobi) – judgment of 19th September 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2522/eng@2025-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.