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ELRCPartially AllowedELRC Cause No. E642 of 2026· [2026] KEELRC 2563 (KLR)

Victor Owino Kojo v Commission on Administrative Justice

Employment and Labour Relations Court of Kenya
24 September 2026
7,196 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to stop an employee's disciplinary hearing but ordered the employer to share all evidence against him at least ten days beforehand.

What this practically means

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Executive summary

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The Claimant, a Senior Legal Officer with the Commission on Administrative Justice, sought interim orders restraining the Respondent from implementing two show cause letters and a suspension letter, and from proceeding with disciplinary action arising from allegations that he engaged in private legal practice while in full-time employment. He also challenged the handling of his non-practice allowance entitlement as discriminatory. The Respondent conceded that the first show cause letter (10th November 2025) was issued without instructions by an officer without authority, and that it had terminated the process founded on it, but issued a fresh show cause letter (12th June 2026) through its acting Secretary and suspended the Claimant. The court held that the Respondent was entitled to withdraw the defective letter and commence afresh, which did not render the new process illegitimate. Applying established case law on non-interference with managerial prerogative, the court declined to grant an injunction, finding the Claimant had not shown the process was irredeemably flawed or that internal appeal and review mechanisms were inadequate. It held that a precautionary suspension does not imply culpability and that half pay on suspension was permitted by section 71(2) & (3) of the Public Service Commission Act, the Conflict of Interest Act being subject to other written laws. Section 89 of the Employment Act was held inapplicable to internal disciplinary processes. However, invoking section 4(3) of the Fair Administrative Action Act, the court directed the Respondent to supply all materials it proposes to rely on at least ten days before the disciplinary hearing. Costs of the application were ordered to abide the outcome of the suit.

Key legal issues

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01

Interference with internal disciplinary processes

Holding

The court declined to stop the disciplinary process; the Respondent was entitled to withdraw the defective first show cause letter and commence afresh with a proper one

Reasoning

Case law establishes that courts intervene rarely and only in clear cases where a disciplinary process is irredeemably flawed. The Respondent conceded the first show cause letter was issued without instructions and terminated that process, then issued a fresh, proper show cause letter through its acting Secretary. Restarting the process cured the deficiency rather than rendering it illegitimate. The Claimant retains internal appeal and review mechanisms under clauses 4.49 and 4.50 of the Manual.

p. 22
02

Disclosure of materials before disciplinary hearing

Holding

The court directed the Respondent to supply all materials it proposes to rely on at least ten days before the disciplinary hearing

Reasoning

Acknowledging the Claimant's rights to fair hearing and fair administrative action, the court held that the appropriate interlocutory intervention is not to stop the process but to require disclosure. The order is anchored on section 4(3) of the Fair Administrative Action Act, which obligates a decision-maker to give the affected person information, materials and evidence to be relied upon.

p. 23
03

Lawfulness of suspension and alleged predetermination

Holding

The suspension was lawful under clause 4.47.4 of the Manual; the reference to preliminary findings of culpability did not amount to predetermination

Reasoning

Relying on Mutwol v Moi University quoting Lewis v Heffer and the South African Gradwell decision, the court held that a precautionary suspension on pay is a holding operation to which natural justice need not apply and procedural fairness may be attenuated. The suspension letter's statement that preliminary results pointed to culpability merely communicates that the Claimant has a case to answer, which he may deconstruct at the hearing.

p. 24
04

Full pay on suspension - Conflict of Interest Act vs Public Service Commission Act

Holding

Section 43 of the Conflict of Interest Act is subject to other written laws, including section 71(2) & (3) of the Public Service Commission Act permitting half pay on suspension

Reasoning

Section 43(1) of the Conflict of Interest Act is expressly subject to the Constitution and any written law. Section 71(2) & (3) of the Public Service Commission Act directs that a suspended public officer receives half basic salary and full house allowance. Clause 4.47.4(iii) of the Manual, applicable to the Claimant, likewise provides for half basic pay. The court also noted the Claimant did not raise this grievance in the application or supporting affidavits.

p. 26
05

Six-month timeline for disciplinary cases

Holding

The Respondent complied with clause 4.44 of the Manual, which permits delay if the Commission Secretary reports the reasons to the Commission

Reasoning

Clause 4.44 requires disciplinary cases to be finalized within six months but acknowledges this may not always be possible, requiring the Commission Secretary to report reasons for delay to the Commission, which may enlarge time. The Acting Secretary explained that upon discovering the first show cause letter was issued without instructions, he brought the matter to the Commission before issuing the second letter, thus following the prescribed procedure.

p. 28
06

Retroactivity of the Conflict of Interest Act and limitation under section 89 of the Employment Act

Holding

The conflict of interest accusations rest also on the Claimant's contract, and section 89 of the Employment Act does not apply to internal disciplinary processes

Reasoning

The court found from the preliminary material that the conflict of interest allegations are founded not only on the Conflict of Interest Act but also on the Claimant's contract, which addresses conflict of interest. On limitation, section 89 of the Employment Act governs court proceedings only and has no application to internal administrative disciplinary processes by an employer.

p. 29

Legal principles established

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  • A court should not readily interfere with an employer's managerial prerogative in disciplinary control, and intervention should only put the process back on course, not scuttle it
  • An administrative (holding-operation) suspension does not imply culpability and the employee need not be heard before it is imposed
  • Section 89 of the Employment Act limits court proceedings only and does not apply to internal administrative disciplinary processes
  • A corporate representative need only state in the affidavit that they are authorized to swear it; resolutions need not be exhibited unless challenged with preliminary material

Court orders

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  1. 1.The application for interim injunction is dismissed
  2. 2.The Respondent is directed to supply the Claimant with any and all materials it proposes to rely on during the proposed disciplinary action, at least ten (10) days before the date proposed for hearing of the disciplinary case
  3. 3.Costs of the application shall abide the outcome of the suit

Authorities

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Legislation

  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 50(2)
  • Fair Administrative Action Actsection 4; section 4(3)
  • Employment Actsection 41; section 89
  • Conflict of Interest Actsection 43; section 43(1)
  • Public Service Commission Actsection 71(2) & (3)
  • Commission on Administrative Justice Human Resource Policies and Procedures Manualclauses 4.42, 4.44, 4.45, 4.47.4, 4.49, 4.50
  • ELRC Procedure RulesRule 28(3)

Cases cited (9)

  • Spire Bank Limited v Land Registrar & 2 others
    [2019] KECA 530 (KLR)

    A corporate representative need only state authorization to swear an affidavit; resolutions need not be exhibited unless challenged with preliminary material

  • Mworia v Water Resources Management Authority & 2 others
    [2015] KEELRC 1124 (KLR)

    Court will not interfere with employer's internal human resource functions except on cogent evidence of violation of law, agreement or internal rules

  • Aviation and Allied Workers Union v Kenya Airways Limited
    [2012] eKLR

    Court intervenes in disciplinary processes rarely and only in clear cases of unfairness or breach of natural justice

  • Wycliffe Gisebe Nyakina v Council of the Institute of Human Resource Management & 3 others
    [2018] KEELRC 1289 (KLR)

    Court will not normally interfere with internal disciplinary processes unless manifestly flawed; interference limited to putting the process on course

  • Alfred Nyungu Kemungui vs Bomas of Kenya
    (2013) eKLR

    Industrial Court should be cautious not to take over managerial prerogatives; interim orders limiting management rights should be avoided

  • Ian Changamu v Co-operative University of Kenya
    [2022] KEELRC 220 (KLR)

    Injunctive relief against disciplinary processes only where the process is manifestly flawed; merits of accusations left for the disciplinary hearing

  • Mutwol v Moi University
    [2022] KECA 537 (KLR)

    Approved Lewis v Heffer on suspension pending enquiries as good administration to which natural justice need not apply

  • Lewis v Heffer and others
    [1978] 3 All ER 354 (CA)

    Suspension on full pay pending enquiries is by way of good administration; rules of natural justice do not apply at that stage

  • Member of the Executive Council for Education, North West Provincial Government v Gradwell
    (2012) 33 ILJ 2033 (LAC)

    Procedural fairness for holding-operation suspensions may legitimately be attenuated for three principal reasons

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act over employment and labour relations disputes

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, "Victor Owino Kojo v Commission on Administrative Justice", Case Analysis (2026). ELRC Cause No. E642 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2563/eng@2026-09-24

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