Chief Executive Officer - Teachers Service Commission & 2 others v Mulunda & 2 others

JUDGMENT 1. When the two appeals were called out for hearing on 9th December 2025, learned counsel Mr. Weru was in attendance for the appellants in Civil Appeal No. E109 of 2023, who are the respondents in Civil Appeal No. E168 of 2023, while learned counsel Ms. Guserwa represented the respondent in Civil Appeal No, E109 of 2023, who is the appellant in Civil Appeal No. E168 of 2023. Considering that Civil Appeal No. E168 of 2023 arose from a ruling that stayed the execution of the judgment which is the subject of the appeal in Civil Appeal No. E109 of 2023, counsel for the parties by consent, and correctly so, withdrew Civil Appeal No. E168 of 2023 with no order as to costs. This judgment is, therefore, in respect of Civil Appeal No. E109 of 2023 alone. 2. In Civil Appeal No, E109 of 2023, the appellants are before us dissatised with the judgment of the Employment and Labour Relations Court (Mbaru, J.), which reinstated the respondent into employment, after nding that he was unfairly terminated. The appellants are, through the memorandum of appeal dated 28th February 2023, raising six grounds which we reproduce verbatim, as hereunder: 3. “ i. The learned Judge erred in fact and in law by disregarding the weight of the evidence adduced against the respondent herein and making the nding that the respondent had been unfairly terminated. ii. The learned Judge erred in fact and in law by ordering that the respondent be reinstated back into employment, a remedy which was not tenable given the weight of evidence on record and circumstances of the case. iii. The learned Judge erred in fact and in law by failing to appreciate that prior to termination of his contract full opportunity had been given to the respondent to show cause why disciplinary action should not be taken against him but the respondent failed to take that opportunity. ii. The learned Judge erred in fact and in law by failing to consider the consequences of ordering the reinstatement of the respondent back into employment given the nature of the appellant’s constitutional and statutory responsibilities. iii. The learned Judge erred in fact and in law by failing to appreciate that the accusation against the Respondent leading to termination of his employment impacted on chapters 6 and 13 of the Constitution and the respondent was duty bound to prove his innocence. iv. The learned Judge erred in fact and in law by issuing a judgment ordering the immediate reinstatement of the respondent contrary to the provisions of the Government Proceedings Act Chapter 40 of the Laws of Kenya.” The background of the dispute as presented to the trial court by the respondent is that he was appointed as a Deputy Commission Secretary on 16th December 2019 by the 2nd appellant, the Teachers Service Commission (“Commission”). On 28th October 2021, while on ocial duty in Geneva in Switzerland, the 1st appellant, the Chief ExecutiveCommission Secretary, through WhatsApp, informed him that some school principals and bursars had accused him of intimidation https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1790/eng@2026-09-25 2

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and interference in procurement processes. He denied these allegations, and upon his return, he was issued with a notice to show cause dated 20th January 2022, to which he responded on 26th January 2022. He subsequently appeared before the Investigation Committee (“the Committee”) from 14th to 16th February 2022, before his employment was terminated by letter dated 20th June 2022. 4. In his petition before the trial court, the respondent challenged the termination of his employment, contending that the process violated his fundamental rights as guaranteed under Articles 41, 47 and 50 of the Constitution, which safeguard fair labour practices, fair administrative action and fair hearing. His petition was further anchored on alleged breaches of the Employment Act, 2007, the Fair Administrative Action Act, 2015 and the Human Resource Policies and Procedures Manual for Secretariat Sta (HR Manual) of the Commission. In support of the petition, he averred that the appellants’ actions were procedurally awed and substantively unfair. The respondent faulted the appellants for issuing a notice to show cause prior to a hearing by the Committee, contrary to the prescribed sequence in the HR Manual. 5. The respondent also faulted the appellants for failing to convene a proper disciplinary hearing; for the impropriety of the composition of the Committee, which comprised members junior to him; and, for the denial of basic procedural rights, such as prior disclosure of evidence, the right to legal or personal representation and the opportunity to cross-examine witnesses. The respondent argued that these omissions contributed to the infraction and denial of his right to fair administrative action, and the legitimate expectation created by the Commission’s internal regulations, as well as the rules of natural justice. The respondent sought several reliefs from the court, including declarations that his constitutional rights were infringed and that his termination was unlawful and unfair. He also sought an order of reinstatement to his former position and an award of aggravated and general damages for the constitutional violations, together with the costs of the suit. 6. The petition was opposed through an adavit sworn by Dr. Nancy Njeri Macharia, the Commission’s Secretary and Chief Executive Ocer, on behalf of the two appellants. It was her deposition that she had been sued erroneously because she acted as an agent of the Commission, and she prayed that she be struck o the proceedings since no substantive relief was sought against her. On the merits of the petition, Dr. Macharia averred that the respondent was an employee of the Commission until 20th June 2022, when he was lawfully terminated. According to her, the respondent’s conduct came under scrutiny, citing instances of negligent performance requiring reminders and a prior incident in October 2021, for which he was cautioned. The deponent also averred that, in the letter dated 20th January 2022 asking the respondent to show cause why his employment should not be terminated, he was charged with misconduct that constituted breaches of constitutional provisions and the Commission’s HR Manual. Specically, he was charged with abuse of oce with a view to unduly inuencing, intimidating and coercing school principals and stang ocers to eect irregular sta transfers, as well as coercing principals to award tenders to specic companies, namely Letreteh Company Limited and Skullab Enterprises, in violation of procurement laws. Dr. Macharia deposed that the respondent dismissed the charges as “a witch-hunt” and was subsequently invited to appear before the Committee of the Commission’s Board from 14th to 16th February 2022, which he did. 7. Dr. Macharia defended the composition of the Committee, whose membership was made up of three commissioners, asserting that the respondent was subordinate to them, and that the other ocers present served only as secretaries and not as decision- makers. She maintained that the respondent was aorded full opportunity to participate in the hearing but opted not to do so. She averred that the Committee found the respondent guilty of glaring malpractices in breach of both Chapter 6 of the Constitution and the Commission’s HR Manual, which nding informed his termination. Dr. Macharia additionally deposed that the entire process was procedurally and substantively fair, https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1790/eng@2026-09-25 3

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compliant with the Constitution, labour statutes, and rules of natural justice. She denied any ulterior motive or "witch-hunt”, attributing the termination solely to the established malpractices. She, therefore, prayed for the dismissal of the petition. 8. The matter was heard by way of written submissions, after which the trial court found that the respondent’s dismissal was unfair and ordered his reinstatement. 9. Relying on submissions dated 8th December 2025, learned counsel Mr. Weru for the appellants faulted the trial court for nding the respondent’s termination unfair. According to counsel, the learned Judge disregarded overwhelming evidence of substantive and procedural compliance with sections 41, 43, and 45 of the Employment Act. Counsel restated the evidence, emphasizing that the respondent received a notice to show cause, submitted a cursory response, and participated fully in a threeday disciplinary hearing where he cross-examined witnesses and made representations. Relying on Kenya Revenue Authority vs. Murgani [2010] KECA 508 (KLR), counsel submitted that fairness is determined by substance, not form, and that the court mischaracterized the disciplinary proceedings as merely investigative despite clear evidence of a fair hearing. 10. In regard to the order reinstating the respondent, counsel for the appellants argued that the trial court failed to properly apply section 49(4) of the Employment Act, ignoring the gravity of the allegations, the breakdown of trust, and the impracticability of restoring a xed-term contract. Citing Kenya Airways Limited vs. Aviation & Allied Workers Union Kenya & 3 Others [2014] KECA 404 (KLR), counsel submitted that reinstatement is not a routine remedy and requires evidence of practicability, which was absent. It was further argued that the order contravenes the Government Proceedings Act by compelling specic performance against a public body without regard to the constitutional imperatives in chapters 6 and 13 of the Constitution. Counsel urged us to set aside the judgment and substitute it with an order dismissing the respondent’s petition with costs. 11. In opposition to the appeal, learned counsel Ms. Guserwa for the respondent relied on the written submissions dated 6th September 2023. Responding to grounds 1, 3 and 5 of the appeal, counsel submitted that the learned Judge exhaustively analysed the evidence and found that there was nothing linking the respondent to the alleged undue inuence, coercion, or intimidation of principals or stang ocers in the procurement of goods and services, and transfer of teachers. According to counsel, the investigation report revealed that the 1st appellant approved the impugned transfers, negating the allegation that the respondent sanctioned them. Counsel maintained that the termination was substantively and procedurally unfair, thus contravening section 45(2)(c) of the Employment Act, the HR Manual, section 4(6) of the Fair Administrative Action Act and Article 41 of the Constitution. 12. Regarding grounds 2, 4, and 6 of the appeal, counsel submitted that the remedy of reinstatement was lawfully granted pursuant to sections 49(3) and 50 of the Employment Act, and section 12 of the Employment and Labour Relations Court Act. According to counsel, the learned Judge exercised her discretion judiciously and within statutory parameters, and the objection based on the Government Proceedings Act was unfounded because the Employment Act confers specic jurisdiction to grant reinstatement within three years of dismissal. Counsel submitted that the order of reinstatement was practicable due to the senior position held by the respondent prior to his dismissal. In order to buttress the arguments, counsel referred to Kenya Airways Ltd vs. Aviation & Allied Workers Union Kenya & 3 Others (supra), to urge that reinstatement is discretionary, guided by section 49(4) of the Employment Act and the exceptional circumstances test and that the trial court properly balanced the interests of the employee and employer. Adverting to Muya vs. Tribunal Appointed to Investigate the Conduct of Justice Martin Mati Muya, Judge of the High Court of Kenya [2022] KESC 16 (KLR), where the Supreme Court ordered reinstatement upon nding the allegations unsubstantiated, counsel argued that reinstatement is an appropriate remedy where the charges are invalid. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1790/eng@2026-09-25 4

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13. We have carefully considered the record of appeal, the respective submissions by counsel, and the authorities cited. This being a rst appeal, we are guided by the principle that we must re- evaluate the evidence afresh and draw our own conclusions, while bearing in mind that we did not see or hear the witnesses testify (see Selle vs. Associated Motor Boat Co. Ltd [1968] EA 123). From the grounds of appeal and submissions, the main issue that crystallize for our determination is whether the trial Judge was correct in nding that the respondent's termination was procedurally and substantively unfair, and if so, whether the remedy of reinstatement was appropriate in the circumstances of the case. 14. Grounds 1, 3, and 5 of the appeal challenge the trial court's nding that the respondent's termination was unfair. The appellants contend that the respondent was accorded a fair hearing in compliance with sections 41, 43 and 45 of the Employment Act. Section 45(2) of the Employment Act provides that a termination is unfair if the employer fails to prove: “ (a) that the reason for the termination is valid; b. that the reason for the termination is a fair reason – c. 15. i. related to the employees conduct, capacity or compatibility; or ii. based on the operational requirements of the employer; and that the employment was terminated in accordance with fair procedure.” Section 41 of the Act, on the other hand, establishes the minimum procedural standard to be adopted before termination. It requires the employer to explain to the employee, in a language the employee understands, the reasons for termination, and thereafter grant the employee, and another employee or a shop oor union representative of his choice, an opportunity to respond to the allegations. Thus, in Isindu vs. Lavington Security Guards Limited [2017] KECA 225 (KLR), this Court deciphered the obligations of an employer as follows: “ The employer must prove the reasons for termination dismissal (section 43); prove the reasons are valid and fair (section 45); prove that the grounds are justied (section 47 (5), amongst other provisions. A mandatory and elaborate process is then set up under section 41 requiring notication and hearing before termination. The Act also provides for most of the procedures to be followed thus obviating reliance on theEvidence Act and the Civil Procedure ActRules. Finally the remedies for breach set out under section 49 are also fairly onerous and generous to the employee.” 16. This Court has consistently emphasized the centrality of procedural fairness in employment termination. For instance, in National Bank of Kenya vs. Anthony Njue John [2019] KECA 582 (KLR), this Court reiterated the holding in Janet Nyandiko vs. Kenya Commercial Bank Limited [2017] eKLR in relation to the place of procedural fairness under section 41 of the Employment Act thus: “ Section 45 of the Act makes provision inter alia that no employer shall terminate the employment of an employee unfairly. In terms of the said section, a termination of an employee is deemed to be unfair if the employer fails to prove that the reason for the termination was valid; that the reason for the termination was a fair reason and that the same was related to the employee’s conduct, capacity, compatibility or alternatively that the employer did not act in accordance with justice and equity. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1790/eng@2026-09-25 5

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The parameters for determining whether the employer acted in accordance with justice and equity in determining the employment of the employee are inbuilt in the same provision. In determining either way, the adjudicating authority is enjoined to scrutinize the procedure adopted by the employer in reaching the decision to dismiss the employee; the communication of that decision to the employee and the handling of any appeal against the decision. Also not to be overlooked is the conduct and capability of the employee up to the date of termination, the extent to which the employer has complied with the procedural requirements under section 41, the previous practice of the employer in dealing with the type of circumstances which led to the termination and the existence of any warning letters issued by the employer to the employee. Section 41 of the Act, enjoins the employer in mandatory terms, before terminating the employment of an employee on grounds of misconduct, poor performance or physical incapacity to explain to the employee in a language that the employee understands the reasons for which the employer is considering to terminate the employee’s employment with them. The employer is also enjoined to ensure that the employee receives the said reasons in the presence of a fellow employee or a shop oor union representative of own choice; and to hear and consider any representations which the employee may advance in response to allegations leveled against him by the employer.” 17. Upon considering the evidence placed before her, the learned Judge formed the opinion that: “ However, even where the petitioner failed the cardinal rule to respond adequately to the show cause notice issued to him, the due process of section 41 and 44 of the Employment Act, 2007 read together with Articles 41 and 47 of the Constitution dictated that he should be issued with notice and allowed to attend a hearing to allow him make representations in the presence of another person of his choice. …. The employee’s right to be heard whenever an employer is contemplating termination, is a sacrosanct right. It cannot therefore, be taken away through the invocation of an investigation committee report. Whatever outcome of the investigation, such called for the respondent to secure the petitioner’s rights under the law and particularly Section 41 and 44 of the Employment Act, 2007 even where this was felt to be a waste of resources and being repetitive. The justication for investigations into the petitioner's conduct was lost when the respondents opted for the easier way out. Due process is part of the fair labour provisions secured under Article 41 of the Constitution, 2010. The due process of allowing the petitioner the right to a hearing before employment [can be] terminated cannot be circumvented through the investigations committee report. … The lapse in due process resulted in an eschewed and premature ndings against the petitioner. Whether the investigation committee was right or wrong, by subjecting the petitioner to the motions of the law would have given him an opportunity to defend his employment in the presence of another person of his choice. Such lapse resulted in unfair termination of employment. That addressed, the court nds a direct violation to the Constitution, 2010 as the rights addressed above are part of the Bill Rights and articulated under the law. The respondents have no plausible reason(s) for subjecting the petitioner to the same.” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1790/eng@2026-09-25 6

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18. The disciplinary procedure for the respondent who was an ocer of the Commission and not a teacher was governed by the HR Manual which clearly provides at paragraphs 116 and 118 distinct investigatory and disciplinary processes. The Committee to which the respondent was subjected was only meant to assist the Commission in determining whether the respondent should be interdicted awaiting disciplinary proceedings before the Discipline Panel. Indeed, the Committee was aware of the procedures hence the clarication by the Chairman of the Committee at page 3 of the investigation report that “the Committee was an Investigative Committee and not a disciplinary one.” With this assurance, the respondent expected that were the Committee to recommend his removal from service, he would still have an opportunity to face a Discipline Panel. It was only before the Discipline Panel that the respondent could have secured the full protection of section 41 of the Employment Act and, in particular the right to have the presence of “another employee or a shop oor union representative of his choice.” In the circumstances, the learned Judge cannot be faulted for concluding that the disciplinary process was short-circuited. In undertaking disciplinary proceedings, employers must patiently stick to the procedures provided in statute and their human resource manuals. 19. We, therefore, nd that the trial Judge was correct in her evaluation of the evidence. Termination of employment is not only about the substance but also the process. An employer may have good reasons for terminating an employee but can only do so by adhering to the procedure provided by the law and the employer’s human resource policies. Although the respondent did not cross- examine the witnesses that were lined up against him during the investigation, he was, as per the HR Manual, entitled to appear before the Discipline Panel. It cannot be speculated what the outcome of the disciplinary proceedings could have been. Though the appellants seem to have had good reasons for terminating the respondent’s employment, the manner in which the termination was conducted, as correctly found by the learned Judge, did not adhere to the procedure provided in the HR Manual. 20. Having concluded that the termination of the respondent failed the procedural test, we need not consider the other complaints raised by the respondent at the trial. 21. We now turn to question as to whether the remedy of reinstatement was appropriate in the circumstances of the case. The appellants argue that reinstatement was not practicable given the nature of the allegations, the breakdown of trust, and the constitutional responsibilities of the Commission. They further contend that the order contravenes the Government Proceedings Act. 22. Reinstatement to employment is one of the remedies available to an employee under section 49 (1) of the Employment Act who has been unfairly terminated. Section 12 (3) of the Employment and Labour Relations Court Act provides that an order of reinstatement can only be issued within three years from the date of the termination. Section 49 (4) of the Employment Act further sets out the factors the court must consider in deciding the remedy to grant, including reinstatement, as follows: “ (a) the wishes of the employee; b. the circumstances in which the termination took place, including the extent, if any, to which the employee caused or contributed to the termination; c. the practicability of recommending reinstatement or re-engagement; d. the common law principle that there should be no order for specic performance in a contract for service except in very exceptional circumstances; e. the employee's length of service with the employer; https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1790/eng@2026-09-25 7

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23. f. the reasonable expectation of the employee as to the length of time for which his employment with that employer might have continued but for the termination; g. the opportunities available to the employee for securing comparable or suitable employment with another employer; h. the value of any severance payable by law; i. the right to press claims or any unpaid wages, expenses or other claims owing to the employee; j. any expenses reasonable incurred by the employee as a consequence of the termination; k. any conduct of the employee which to any extent caused or contributed to the termination; l. any failure by the employee to reasonably mitigate the losses attributable to the unjustied termination; and m. any compensation, including ex-gratia payment, in respect of termination of employment paid by the employer and received by the employee.” This Court has considered the remedy of reinstatement in several decisions. In Kenya Airways Limited vs. Aviation & Allied Workers Union Kenya & 3 Others (supra), Maraga, JA (as he then was) opined that: “ As I have said, in Kenya, reinstatement is one of the remedies provided for in section 49(3) as read with section 50 of the Employment Act and section 12(3)(vii) of the Industrial Court Act that the court can grant. Reinstatement is, however, not an automatic right of an employee. It is discretionary and each case has to be considered on its own merits based on the spirit of fairness and justice in keeping with the objectives of industrial adjudication. In this regard, there are fairly well settled principles to be applied. For instance the traditional common law position is that courts will not force parties in a personal relationship to continue in such relationship against the will of one of them. That will engender friction, which is not healthy for businesses, unless the employment relationship is capable of withstanding friction like where the employer is a large organization in which personal contact between the aected employee and the ocer who took action against him will be minimal. 69. Under the Kenyan Employment Act, the factors to be taken into account when considering reinstatement are enumerated in section 49(4) of the Employment Act. Those relevant to this appeal include the wishes and expectations of the employee; the common law principle that there should be no order for specic performance in a contract for service except in very exceptional circumstances; the practicability of reinstatement; any compensation paid by the employer; and chances of the employee securing alternative employment. I would like, in particular, say something about the practicability factor.” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1790/eng@2026-09-25 8

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24. The Court went on to discuss the concept of practicability of reinstatement as a factor for consideration and held that: “ One of the factors to be considered in determining whether or not to order reinstatement is practicability. In New Zealand Educational Institute v. Board of Trustees of Auckland Normal Intermediate School, the New Zealand Court of Appeal [stated] dened what practicability means: “Practicability is capability of being carried out in action, feasibility or the potential for the reimposition of the employment relationship to be done or carried out successfully. Practicability cannot be narrowly construed in the sense of being simply possible irrespective of consequence.” 25. Reinstatement is an exceptional remedy which should not be granted routinely. Before granting the remedy, the court must be satised that the employment relationship can be restored without undue strain on the parties involved. Applying the practicability test, we nd that an order of reinstatement may not be practicable where the employee holds a senior position involving signicant trust and responsibility, and where the allegations against him had resulted in a breakdown of trust. It is necessary that we distinguish the case of Muya vs. Tribunal Appointed to Investigate the Conduct of Justice Martin Mati Muya, Judge of the High Court of Kenya (supra) cited and relied upon by the respondent in support of his quest for reinstatement. The decision involved a Judge and once the Supreme Court allowed his appeal against the decision of the tribunal that had recommended his removal from oce, his reinstatement to oce was a command of the Constitution. 26. Applying the principles governing reinstatement to the present case, we note that the respondent was a senior ocer of the Commission, serving as Deputy Commission Secretary. This is a senior position that carries signicant responsibility and requires a high degree of trust and condence between the ocer and the Commission. Additionally, the allegations against the respondent touched on breaches of Chapters 6 and 13 of the Constitution, which relates to leadership and integrity. They involved accusations of abuse of oce, undue inuence, and interference with procurement processes. We also appreciate that the investigation report on record contains ndings that, if true, would fundamentally undermine the trust necessary for the discharge of duties by the respondent. 27. Addressing the remedy of reinstatement, the Court in Kenya Revenue Authority vs. Gitahi & 2 Others [2019] KECA 330 (KLR) opined that: “As correctly observed by counsel for the appellant, KRA is a public body bestowed with the important duty of collecting revenue for running Government services, which activity must attract public scrutiny. As such, the employees of KRA must have utmost trust and integrity. When trust has irretrievably broken down, due to acts and omissions of the respondents, it would be foolhardy to force the employer and the employee to stick together. We are in no doubt that the respondents contributed to the acts leading to their termination as envisaged under section 49(4) (b) (c) and (k) which leads us to the determination that the termination, though awed due to procedural lapses, was lawful and justied. In the circumstances of this case and in consideration of public interest, the remedy that commends itself to us is that the services of the respondents shall stand terminated.” 28. Still, on the practicability of an order of reinstatement, the Court in Kenya Power & Lighting Company Ltd vs. Wasike [2017] KECA 446 (KLR) held as follows: “ A striking feature of the learned Judge’s award of reinstatement is that it is not preceded, accompanied or followed by any indication that the foregoing matters were given serious https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1790/eng@2026-09-25 9

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or any consideration as they were required to be. We consider that to be a serious error of law because, as set out in (d), the order of specic performance in a contract for personal services, which an order of reinstatement amounts to, is not to be made except in very exceptional circumstances. At the very least a Judge ought to set out the factors that mark out a particular case as possessed of exceptional circumstances before reinstatement can be ordered. This provision, properly understood, ought to render orders of reinstatement rarities, not common place and routine pronouncements as appear to come from certain sections of the Employment and Labour Relations Court. This calls for a strict adherence to the law as carefully and mandatorily set out in the controlling statute. …. We think that in all respects the learned Judge got it all wrong. Where, as here, an employer has reasonable cause to take disciplinary action against an employee and does so with scrupulous adherence to due process and fair, equitable treatment of the employee; and even imposes a normal termination with pay in lieu of notice when it could easily have summarily dismissed the employee reasonably suspected of attempted theft with ample evidence thereof availed, it cannot be right that orders such as issued in the instant case be given. Much as courts are right to be solicitous of the interests of the employee, they must remain fora where all, irrespective of status, can be assured of justice. Employers are Kenyans, too, and have rights which courts are duty bound to respect and uphold. As is often stated, justice is a two-way highway.” 29. We appreciate that each case must be considered according to its circumstances, but the principle remains the same that where trust has been eroded, it would be unjust to compel parties to resume the employment relationship. We are also mindful of the appellants’ argument that the respondent’s conduct was abhorrent to the ideals of Chapters 6 and 13 of the Constitution. For senior ocers entrusted with public resources and responsibility, the threshold for reinstatement is higher. Where allegations of misconduct involving integrity arise, it may be inadvisable to reinstate, even where procedural aws are identied. 30. The trial Judge, in ordering reinstatement, appears to have focused primarily on the procedural aws in the termination process, without adequately considering whether reinstatement was practicable in the circumstances. The Judge appears not to have carefully considered the factors in section 49(4) of the Employment Act, nor did she appreciate the impact of the allegations on the trust relationship. As already stated, the court’s discretion to grant reinstatement must be exercised after considering all relevant factors, including the employer’s right to manage its aairs and the viability of the remedy. 31. Regarding the appellants' argument that the reinstatement order violated the Government Proceedings Act, we nd this ground to be without merit. Section 12 of the Employment and Labour Relations Court Act expressly confers jurisdiction on the ELRC to grant remedies including reinstatement. The Government Proceedings Act does not oust this jurisdiction. The two statutes must be read harmoniously, and specic provisions of the Employment Act prevail over general provisions of the Government Proceedings Act. 32. However, on the merits of reinstatement, we are persuaded by the appellants that the trial Judge erred in the exercise of her discretion. The factors militating against reinstatement were not properly considered. The nature of the allegations, the hierarchy of the respondent's position, the breakdown of trust, and the practicability of restoring the employment relationship all militated against reinstatement. We, therefore, nd merit in grounds 2 and 4 of the appeal. The trial court's order of reinstatement cannot stand. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1790/eng@2026-09-25 10

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33. 34. In the end, the appeal partially succeeds to the extent that the remedy of reinstatement is set aside. The question that remains to be answered is whether the respondent should leave the Court empty handed. We do not think he should. Having proved that his termination was unprocedural, we are called upon to consider the appropriateness of the other remedies sought in his petition. As per the petition dated 25th July 2022, his prayers were as follows: “ (a) A Declaration that the Petitioner’s Fundamental Rights and Freedoms have been violated by the Respondent. b. A Declaration that the Respondents terminated the Petitioner’s employment unfairly. c. A Declaration that the Respondents discriminated against the Petitioner. d. An order directed to the Respondents to reinstate the Petitioner to the position of Deputy Commission Secretary. e. Aggravated Damages. f. General Damages for Constitutional breaches and violations. g. Costs of, and incidentals to, these proceedings be borne by the respondent. (f) Any other relief that this Honourable Court may deem just to grant.” In Standard Group Limited vs. Jenny Luesby [2018] KECA 353 (KLR) it was held that: “So long as an employee can plead and prove breach of a constitutional right within the context of the employee's contract of employment or demonstrate that he is entitled to damages in circumstances as contemplated under the Employment and Labour Relations Court Act (ELRCA), over and above those awardable for unlawful termination, we see no impediment for the trial court granting such relief. There are many cases, for example, where wrongful or unfair termination is intertwined with breaches of the Bill of Rights and there is no argument that dierent reliefs will ensue. The caution must, however, be borne in mind that a balance should be maintained between the interests of the employer and employee and the socio-economic interests of the country as a whole.” 35. Additionally, the respondent sought any other relief that the trial court deemed just to grant. However, we cannot close our eyes to the fact that the Committee found the respondent culpable in respect of the serious allegations made against him. On the other hand, the respondent is entitled to some form of compensation for the unprocedural manner in which he was terminated. In the circumstances, we nd an award equivalent to eight months’ salary adequate compensation. From the record, the respondent was earning Kshs.308,423 per month. A round gure of Kshs. 2, 500,000 would therefore be ideal and that is the amount we award the respondent as compensation for the violation of his right to fair process. This amount shall attract interest at court rates from the date of this judgment until payment in full. 36. Considering the outcome of the appeal, the just order on costs is to direct each party to meet own costs of the appeal, which we hereby do. 37. Orders accordingly. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER 2026. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1790/eng@2026-09-25 11

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W. KARANJA JUDGE OF APPEAL A. O. MUCHELULE JUDGE OF APPEAL W. KORIR JUDGE OF APPEAL I certify that this is a True copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1790/eng@2026-09-25 12

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