Victor Owino Kojo v Commission on Administrative Justice
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the replying affidavit sworn for the Respondent without exhibited proof of authorization is incompetent and should be struck out
- 2.Whether the court should intervene in the Respondent's disciplinary process against the Claimant by way of injunction
- 3.Whether the suspension of the Claimant was lawful and whether it implied predetermination of his case
- 4.Whether the Claimant is entitled to full pay while on suspension under the Conflict of Interest Act
- 5.Whether the disciplinary process has breached the six-month timeline in clause 4.44 of the Respondent's Manual
- 6.Whether the Conflict of Interest Act applies retroactively and whether section 89 of the Employment Act bars the internal disciplinary process
Key legal issues
#Interference with internal disciplinary processes
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
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.
Disclosure of materials before disciplinary hearing
The court directed the Respondent to supply all materials it proposes to rely on at least ten days before the disciplinary hearing
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.
Lawfulness of suspension and alleged predetermination
The suspension was lawful under clause 4.47.4 of the Manual; the reference to preliminary findings of culpability did not amount to predetermination
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.
Full pay on suspension - Conflict of Interest Act vs Public Service Commission Act
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
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.
Six-month timeline for disciplinary cases
The Respondent complied with clause 4.44 of the Manual, which permits delay if the Commission Secretary reports the reasons to the Commission
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.
Retroactivity of the Conflict of Interest Act and limitation under section 89 of the Employment Act
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
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.
Legal principles established
#- 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
#- 1.The application for interim injunction is dismissed
- 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.Costs of the application shall abide the outcome 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 and Labour Relations Court Act over employment and labour relations disputes
Relief refused
#Temporary injunction restraining the Respondent from implementing the show cause letters and taking disciplinary action
Claimant failed to establish a prima facie case that the process is irredeemably flawed; internal appeal and review mechanisms exist
Stay of the decision to suspend the Claimant and reinstatement to his position with full salary and benefits
Failed the first condition for grant of an interim injunction; suspension was a lawful holding-operation suspension
Order striking out the replying affidavit and deeming the application unopposed
A representative need only state authorization; actual resolutions need not be exhibited absent preliminary material showing no authority exists
Costs
Costs of the application shall abide the outcome 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.
The role of the court should be limited to putting the process back on the right trajectory in order for it to proceed to its logical conclusion.
the court is not persuaded that an order of injunction should issue at this preliminary stage to stall the process.
The material should be supplied to the Claimant at least ten (10) days before the date proposed for hearing of the disciplinary case.
Costs of the application shall abide the outcome of the suit.
It has no application to internal administrative disciplinary processes by an employer.
an administrative suspension does not imply culpability of the affected employee.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.