Victor Owino Kojo v Commission on Administrative Justice

4. Together with the Statement of Claim, the Claimant filed the instant application dated 12th June 2026 seeking various interim reliefs as follows:a) Spent. b) That pending the hearing and determination of the suit, the court be pleased to issue an order of temporary injunction to restrain the Respondent, its servants and or agents, from implementing or acting upon the show cause letters dated 10th November 2025 and 12th June 2026 and from taking any disciplinary action against him arising from the same allegations contained in the said show cause letters, whether by fresh process, new instructions or otherwise. c) That pending hearing and determination of the suit, the court be pleased to stay implementation of the decision of the Respondent to suspend him from duty as communicated in the letter dated 15th June 2026. d) That pending hearing and determination of the suit, the court be pleased to issue an order to reinstate him to his position as Senior Legal Officer and to restore his full salary and benefits with immediate effect. e) That upon hearing and determination of this application, the Respondent be ordered to furnish him with a report of the preliminary investigations conducted prior to issuance of the show cause letter dated 10th November 2025, the investigation report referred to in the letter dated 15 th June 2026 as well as all relevant information and ELRC CAUSE NO. E642 OF 2026 2

page 2 of 32

documents relating to the allegations contained in the said letters. f) That costs of the application be granted to him. 5. The application is anchored on the grounds set out on the face thereof. It is also supported by the affidavits sworn by the Claimant. 6. The Claimant avers that the parties to the action entered into a contract of service on 4 th June 2015 through which the Respondent hired his services as a legal officer. He avers that on 5th June 2026, he received a letter from the Respondent’s Assistant Director, Human Resource and Administration, asking him to attend a disciplinary hearing on 18th June 2026. 7. The Claimant avers that the aforesaid invite followed a letter of show cause dated 10th November 2025 to him by the same officer. He avers that he had responded to the show cause letter by his letter dated 1st December 2025. 8. The Claimant contends that the invite to attend the disciplinary hearing was sent to him whilst he was away on approved annual leave. He avers that the Respondent did not cancel or recall him from the said leave to enable the purported disciplinary hearing. 9. The Claimant avers that on 12 th June 2026, the Respondent’s Director Corporate Services who also serves as its acting Secretary issued him with a second show cause letter. He contends that the latter show cause letter contained ELRC CAUSE NO. E642 OF 2026 3

page 3 of 32

accusations which were similar to the ones in the earlier show cause letter dated 10th November 2025. 10. The Claimant avers that the letter dated 12 th June 2026 required him to respond to the accusations against him in 21 days. Yet, he contends that he had already given his response to the earlier letter of 10 th November 2025. 11. The Claimant avers that by virtue of clause 4.42 of the Respondent’s Human Resource Policies and Procedures Manual (the Manual or Human Resource Manual), the Respondent’s power to exercise disciplinary control over its staff has been delegated to its Secretary. He further avers that clause 4.45 of the Manual sets out the procedure to be followed by the aforesaid officer whilst exercising the delegated disciplinary mandate on behalf of the Respondent. 12. The Claimant avers that the Secretary is required to issue an employee who is subject to disciplinary action with a notice to show cause letter after preliminary investigations have been conducted in respect of the matter under consideration. As such, he avers that the show cause letter which the Assistant Director, Human Resource and Administration issued him with on 10 th November 2025 is a nullity since it was issued before preliminary investigations were conducted and by an officer who had no powers to issue the letter. It is his case that the Secretary of the Respondent, being a delegate of the Respondent with regard to the disciplinary mandate, could not sub-delegate the ELRC CAUSE NO. E642 OF 2026 4

page 4 of 32

mandate to the Assistant Director, Human Resource and Administration. 13. The Claimant avers that the Respondent’s Assistant Director, Human Resource and Administration accused him of engaging in private legal practice whilst he was in the Respondent’s service. He avers that the letter of show cause referred to case numbers but did not disclose the names of the parties and the court stations where the matters are allegedly filed. He further avers that documents evidencing existence of the alleged cases were not supplied to him to enable him to decipher the cases in question. 14. The Claimant avers that he responded to the accusations and denied having engaged in private legal practice whilst in the Respondent’s service. He avers that he denied that he had been instructed to act in the impugned matters as alleged. 15. The Claimant denies that he breached the Respondent’s Human Resource Manual which prohibits the Respondent’s employees from engaging in other gainful employment whilst in service. He further denies that he breached the terms of his contract of service which prohibited him from engaging in private work for profit without the Respondent’s written consent. As such, he denies that he engaged in activities which amounted to conflict of interest as alleged by the Respondent. 16. The Claimant contends that having regard to the terms of his contract and the Respondent’s Manual, the letters by the ELRC CAUSE NO. E642 OF 2026 5

page 5 of 32

Respondent do not disclose any acts which demonstrate that he engaged in private work or acted in conflict with the Respondent’s interests whilst serving it (the Respondent). He reiterates his contention that the Respondent did not furnish him with proof of the allegations against him despite his requests for particulars. 17. The Claimant avers that the Respondent’s failure to provide him with specifics of the accusations against him and evidence in support of the accusations renders it impossible for him to mount a defense against the accusations. It is his case that to subject him to the impending disciplinary process without first providing him with evidence in support of the accusations against him is a violation of the principles of natural justice. 18. The Claimant further avers that the Respondent suspended him from service alleging that preliminary results of investigations showed he was culpable of the infractions he is accused of. Yet, he says the Respondent has not shared with him the alleged investigation report. It is his case that the declaration of culpability in the letter of suspension amounts to a predetermination of his case rendering the impending disciplinary process a mere formality. 19. The Claimant avers that the Respondent’s actions have violated articles 47 and 50 (2) of the Constitution on fair administrative action and fair hearing. He further contends that the impugned actions have violated section 4 of the Fair ELRC CAUSE NO. E642 OF 2026 6

page 6 of 32

Administrative Action Act and section 41 of the Employment Act. 20. The Claimant avers that the Respondent invited him for a disciplinary hearing based on the first show cause letter even before the time given to him to respond to the second show cause letter had lapsed. He contends that having regard to the foregoing and the fact that the Respondent had already declared him culpable before the disciplinary hearing, his fate has already been pre-determined. 21. The Claimant avers that in an adversarial process, the law requires an individual who is accused of an infraction to be investigated before he is issued with a charge sheet. He avers that this is the reason why the Respondent’s Manual provides for investigations before a show cause letter can be issued. 22. The Claimant further avers that the Respondent’s Manual requires disciplinary cases to be concluded within six months. He contends that the Respondent’s proposed disciplinary process against him violates this requirement. 23. The Claimant avers that the Respondent has continuously violated his right to equal pay for work of equal value by refusing to pay him non-practice allowance from 2015. He avers that the Respondent’s actions in this respect have denied him the right to be at per with his peers in the public sector. It is his case that this has subjected him to unequal treatment and violated his right to fair labour practice. ELRC CAUSE NO. E642 OF 2026 7

page 7 of 32

24. The Claimant avers that he has demonstrated that he will suffer irreparable injury if the orders sought in the application are not granted. He thus prays that the application be allowed to protect his rights. 25. The Respondent has opposed the application. It has filed a replying affidavit dated 28th June 2026 to anchor its objection to the motion. 26. The Respondent acknowledges that it has engaged the Claimant as a Senior Legal Officer. It avers that as such, the Claimant is bound by the provisions in its Manual, his terms of contract and the applicable law. 27. The Respondent avers that on 3 rd October 2025, it received a complaint from a Firm of Advocates alleging that the Claimant was engaged in private law practice. It (the Respondent) avers that the complainant stated that the Claimant was engaged in practice under the trade name of Owino Kojo & Company Advocates whilst he was still in active service with the Respondent. 28. The Respondent avers that once it received the complaint, it opened preliminary investigations into the matter as required under clause 4.45 of its Manual. It avers that the preliminary investigations established sufficient basis for notifying the Claimant about the complaint and inviting his response. 29. The Respondent avers that contrary to express instructions, the Assistant Director Human Resources and Administration issued the Claimant with the letter of show cause dated 10 th ELRC CAUSE NO. E642 OF 2026 8

page 8 of 32

November 2025. It (the Respondent) avers that after the Claimant preferred his response to the aforesaid letter, it (the Respondent) set up an Investigation Committee to conduct an inquiry into the matter. 30. The Respondent avers that it wrote to the Claimant vide email on 27th March 2026 inviting him to appear before the Investigation Committee on 2nd April 2026 in order for him to respond to the allegations which had been made against him. However, it avers that Claimant declined the invite asserting that the investigations should have preceded issuance of the show cause letter of 10th November 2025. 31. The Respondent avers that the Assistant Director Human Resources and Administration convened the Human Resources Advisory Committee which met and prepared a report on the matter. It (the Respondent) avers that the report was thereafter submitted to the office of the Acting Commission Secretary for his concurrence and further directions. 32. The Respondent avers that after scrutinizing the report, the Acting Commission Secretary noted that the letter of show cause dated 10th November 2025 was issued without instructions and had been signed by a person who had no authority to sign it and that the letter was issued without first conducting investigations into the accusations against the Claimant. The Respondent also avers that it was noted that the Human ELRC CAUSE NO. E642 OF 2026 Resources Advisory Committee had 9

page 9 of 32

proceeded to prepare its report before the Claimant was heard on the matter. 33. The Respondent further avers that it was realized that the Assistant Director Human Resources and Administration had, without instructions, issued the Claimant with a letter inviting him for a disciplinary hearing on 18 th June 2026. It (the Respondent) avers that the invite disregarded the fact that the Claimant was on annual leave at the time. 34. The Respondent’s Acting Commission Secretary avers that having regard to the aforesaid irregularities, he consulted the Respondent on the way forward on the matter. He avers that the Respondent advised that the disciplinary process be terminated on account of the foregoing. He contends that the Respondent reserves the right to terminate disciplinary proceedings against an employee at any time. 35. The Respondent avers that whilst conducting the preliminary inquiry into the Claimant’s case, it sought information on his professional details from the Law Society of Kenya. In response, it (the Respondent) avers that the Law Society of Kenya stated that the Claimant was in active private practice under the trade name of Owino Kojo & Company Advocates. 36. The Respondent avers that this information from the Law Society of Kenya confirmed its suspicion that the Claimant was engaged in private practice whilst serving as its (the Respondent’s) full time employee. Further, it (the Respondent) avers that the Law Firm which had lodged the ELRC CAUSE NO. E642 OF 2026 10

page 10 of 32

complaint swore an affidavit to confirm that the Claimant was involved in active private practice. 37. The Respondent contends that having regard to the foregoing evidence, it had sufficient grounds to consider taking disciplinary action against the Claimant. As such, the Respondent’s Acting Commission Secretary avers that he proceeded to issue the Claimant with a fresh letter of show cause dated 12th June 2026 and a letter of suspension from duty dated 15th June 2026. 38. The Respondent’s Acting Commission Secretary avers that the Claimant’s letter of appointment required him to offer his undivided time and service to the Respondent during the term of his contract. He further contends that the letter prohibited the Claimant from engaging in acts which amounted to conflict of interest or in private work without the express consent of the Respondent in writing. 39. The Respondent’s Acting Commission Secretary avers that having regard to the gravity of the accusations against the Claimant, the Respondent took the view that if the accusations were established, the Claimant would have committed acts of gross misconduct which would warrant his dismissal from service. He thus avers that the Claimant was lawfully suspended from duty in accordance with clause 4.47.4 of the Respondent’s Manual. 40. The Respondent avers that it has conducted the process against the Claimant in compliance with the law. It further avers that the disciplinary process is, in any event, yet to be ELRC CAUSE NO. E642 OF 2026 11

page 11 of 32

concluded for the Claimant to contend that his case has already been determined. 41. The Respondent states that the Claimant’s entitlement to non-practice allowance accrued from 1st July 2025 based on the circular by the Public Service Commission dated 19th May 2025. Nevertheless, it (the Respondent) avers that if it is established that the Claimant was engaged in private practice during the period for which he is to be paid the nonpractice allowance, he will not be entitled to pursue the claim. 42. The Respondent avers that the Claimant is entitled to apply for a practicing certificate whereupon he is to submit to it (the Respondent) the invoice for the certificate. It contends that there is no evidence that he has done so. 43. The Respondent avers that the first show cause letter having been withdrawn, the disciplinary process against the Claimant is deemed to have commenced in June 2026 when the second notice to show cause letter was issued to him. As such, it (the Respondent) avers that the Claimant’s contention that the disciplinary process has stretched beyond six months is misguided. 44. In response, the Claimant swore a further affidavit to state, inter alia, the following:a) That both parties are bound by the Respondent’s Manual. b) That the Respondent did not furnish him with documents to speak to the accusations leveled against him. ELRC CAUSE NO. E642 OF 2026 12

page 12 of 32

c) That the letter from the lawyer who allegedly raised the complaint against him simply seeks information and does not constitute a complaint. d) That the Respondent has not served him with the investigation report. e) That he denied the accusations against him. f) That the Respondent has in fact conceded that: the earlier show cause letter was issued without instructions; the suspension letter was issued before he was heard; it (the Respondent) declared him guilty beforehand; he was summoned for the disciplinary hearing whilst he was on leave; the allegations in the two letters of show cause are the same; he requested for particulars of the charges against him; the disciplinary hearing of 18 th June 2026 was scheduled to take place before the time he was given to respond to the second notice to show cause had lapsed; the allegations against him do not disclose an offense or conflict of interest; and he is entitled to payment of nonpractice allowance. g) That the accusations against him arose in 2020 and are no longer actionable by reason of section 89 of the Employment Act. h) That the Conflict of Interest Act came into force in 2025 and cannot be applied retroactively to punish him for alleged conflict of interest in 2020. ELRC CAUSE NO. E642 OF 2026 13

page 13 of 32

i) That the Respondent has not provided evidence to demonstrate that he declined to appear before the Investigation Committee. j) That the Respondent has not provided proof of when the first disciplinary process was discontinued. k) That the Respondent used to make payment for practicing certificates late hence his decision to use a private Law Firm to effect the payments in order to remain compliant. l) That the fact that the declared place of work in the Law Society forms was the Law Firm does not mean that he was engaged in private law practice as he only used the Firm to process his practicing certificate. m) That although he is a partner in the Firm of Owino Kojo & Company Advocates, he is currently on sabbatical leave from the Firm. n) That he has not been engaged directly by one Paul Debacko for legal services. o) That his suspension from duty was not justified. Analysis 45. Although the Claimant did not challenge the validity of the replying affidavit filed by the Respondent either through his affidavits in support of the application under consideration or by way of a preliminary point of law, he has challenged the affidavit through his final submissions. He contends that because the affiant to the affidavit has not exhibited proof of authorization to swear the affidavit, it (the affidavit) is ELRC CAUSE NO. E642 OF 2026 14

page 14 of 32

incompetent and should be struck out and the application under consideration deemed as unopposed. 46. This objection is not well founded in law. As an artificial person, the Respondent acts through its representatives. And all that these representatives are required to do is to state in the affidavits they file on its (the Respondent’s) behalf that they are authorized to do so. 47. The representatives need not present to court the actual resolutions granting them individual challenging such the authority authority has unless the presented preliminary material to demonstrate that no such authority exists. This matter was clarified by the Court of Appeal in the case of Spire Bank Limited v Land Registrar & 2 others [2019] KECA 530 (KLR). 48. At paragraph one of the impugned affidavit, the deponent thereto declares that he is the Acting Commission Secretary/CEO for the Commission on Administrative Justice, the Respondent in the suit and thus competent and authorized to swear the affidavit. This being the case, the objection to the affidavit is unwarranted. 49. The instant application essentially invites the court to interfere with the exercise of the managerial prerogative of an employer in respect of disciplinary control over an employee. It has been emphasized that the court should not readily interfere in the exercise of this prerogative. It (the court) should only intervene in the process where there is cogent evidence to demonstrate that the prerogative has ELRC CAUSE NO. E642 OF 2026 15

page 15 of 32

been exercised in violation of the law, the agreement between the parties or the internal work rules. 50. Even then, when the court intervenes in the process, this should not be with the intention of scuttling it altogether. 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. 51. Speaking to this matter in the case of Mworia v Water Resources Management Authority [2015] KEELRC 1124 (KLR), & 2 others the trial Judge expressed himself as follows:‘’The general principle is that the court will not interfere with any of the employer’s rights to perform internal human resource functions such as disciplinary control and like in this case, transfer. With respect to the court’s interference disciplinary control in of employer’s the employees exercise and of which principles the court holds would apply to the employer’s exercise of the power to transfer, the court upholds its opinion in Aviation and Allied Workers Union v Kenya Airways Limited [2012] eKLR, where the court stated,“…Thus, similarly this court would be reluctant to involve itself in a disciplinary process commenced by the employer unless in an appropriate case it is established that the disciplinary process has been commenced or is continuing unfairly. The intervention in disciplinary process by employers will be entertained ELRC CAUSE NO. E642 OF 2026 16

page 16 of 32

by the court rarely and in clear cases where the process is likely to result into unfair imposition of a punishment against the employee. The court will intervene in an administrative disciplinary procedure if it is established that the procedure relied on by the employer offends fairness or due process by not upholding the rules of natural justice, or, if the procedure is in clear breach of the agreed or legislated or employer’s prescribed applicable policy or standards, or, if the disciplinary procedure were to continue it would result into manifest injustice in view of the circumstances of the case. The court will normally not intervene if it is established that there exist mechanisms between the employer and the employee such as appeal or revision that the employee could invoke internally to remedy the dissatisfaction that would otherwise justify the court's intervention and, the employee has not exhausted such internal mechanisms.”….. ……The court will very sparingly interfere in the employer’s entitlement to perform any of the human resource functions such as recruitment, appointment, promotion, transfer, disciplinary control, redundancy, or any other human resource function. To interfere, the applicant must show that the employer is proceeding in a manner that is in contravention of the provision of the Constitution or legislation; or in breach of the agreement between the parties; or in a manner that is ELRC CAUSE NO. E642 OF 2026 17

page 17 of 32

manifestly unfair in the circumstances of the case; or the internal dispute procedure must have been exhausted or the employer is proceeding in a manner that makes it impossible to deal with the breach through the employer’s internal process.’’ 52. In the case of Wycliffe Gisebe Nyakina v Council of the Institute of Human Resource Management & 3 others [2018] KEELRC 1289 (KLR), the learned Judge expressed herself on the matter as follows:‘’The Applicant rushed to Court seeking injunctive reliefs to prevent disciplinary action. Whereas this could be warranted, this Court has over and over again indicated that it will not normally interfere with internal disciplinary processes between an employer and an employee unless the process is manifestly flawed and the interference will be limited to putting the right process on course.’’ 53. In the case of Alfred Nyungu Kemungui vs Bomas of Kenya (2013) eKLR, the trial court observed on the subject as follows:‘’The Industrial Court should be cautious in exercising its jurisdiction, so as not to appear to take over and exercise managerial prerogatives at workplaces. Grant of interim orders that have the effect of limiting genuine exercise by management of its rights at the workplace, should be avoided. Termination of employment, and initiation of disciplinary processes at ELRC CAUSE NO. E642 OF 2026 18

page 18 of 32

the workplace, are presumed to be management prerogatives. The Court should be slow in intervening, particularly at interlocutory stages, otherwise the Court would be deemed to be directing the employers in regulation of their employees.’’ 54. In the case of Ian Changamu v Co-operative University of Kenya [2022] KEELRC 220 (KLR), the court observed on the subject as follows:‘’This Court is in agreement with the view expressed by the Court in Wycliff Gisebe Nyakina vs. Council of the Institution of Human Resource Management & 3 others [2018] eKLR, that the Court can only give an injunctive relief against disciplinary processes between an employer and an employee, where it is demonstrated that the process is manifestly flawed.’’ 55. In the foresaid case, the court declined to issue an order of injunction to bar the employer from proceeding with disciplinary action against the employee on the ground that the employee had not been supplied with adequate material to mount his defense and that this violated the provisions of the Constitution and the Employment Act. The learned Judge stated as follows:‘’The inadequacy of the particulars supplied is an issue that the Claimant can raise, in the disciplinary proceedings, and depending on how it is handled at that point, it can be a subject matter in legal ELRC CAUSE NO. E642 OF 2026 19

page 19 of 32

proceedings in a legally recognized forum post the disciplinary process.’’ 56. Regarding suspension from duty in order to conduct investigations into a suspected infraction by an employee, the Court of Appeal in the case of Mutwol v Moi University [2022] KECA 537 (KLR), quoted with approval the following passage from the English case of Lewis v Heffer and others [1978] 3 All ER 354 (CA) at 364:“Very often irregularities are disclosed in a government department or in a business house; and a man may be suspended on full pay pending enquiries. Suspicion may rest on him; and he is suspended until he is cleared of it. No one, as far as I know, has ever questioned such a suspension on the ground that it could not be done unless he is given notice of the charge and an opportunity of defending himself and so forth. The suspension in such a case is merely done by way of good administration. A situation has arisen in which something must be done at once. The work of the department or office is being affected by rumours and suspicions. The others will not trust the man. In order to get back to proper work, the man is suspended. At that stage the rules of natural justice do not apply....” 57. Quoting with approval another decision in the South African Court of Appeal case of Member of the Executive Council for Education, North West Provincial Government v ELRC CAUSE NO. E642 OF 2026 20

page 20 of 32

Gradwell (2012) 33 ILJ 2033 (LAC),the learned Judges further observed thus:‘’…. When dealing with a holding operation suspension, as opposed to a suspension as a disciplinary sanction, the right to a hearing, or more accurately the standard of procedural fairness, may legitimately be attenuated, for three principal reasons. Firstly, as in the present case, precautionary suspensions tend to be on full pay with the consequence that the prejudice flowing from the action is significantly contained and minimized. Secondly, the period of suspension often will be (or at least should be) for a limited duration. …. And, thirdly, the purpose of the suspension - the protection of the integrity of the investigation into the alleged misconduct - risks being undermined by a requirement of an in-depth preliminary investigation....” 58. In the instant dispute, the Claimant has challenged the Respondent’s decision to subject him to disciplinary action on, inter alia, the grounds that the Respondent’s Assistant Director, Human Resource and Administration issued him with the notice to show cause letter dated 10 th November 2025 in contravention of the Respondent’s Human Resource Manual which vests disciplinary powers in the Respondent’s Secretary. 59. In response, the Respondent swore an affidavit and conceded that the letter dated 10th November 2025 was issued by the Assistant Director without instructions. As ELRC CAUSE NO. E642 OF 2026 21

page 21 of 32

such, it (the Respondent) averred that the disciplinary process which was pegged on the offending letter was terminated. 60. The Respondent has further stated that it initiated a fresh disciplinary process against the Claimant by issuing him with a fresh letter of show cause dated 12 th June 2026. It contends that this new letter was issued by its acting Secretary in line with the Human Resource Manual. 61. In the court’s view, once the Respondent came to the realization that the first show cause letter dated 10 th November 2025 was issued without authority, it (the Respondent) was entitled to withdraw it (the letter) and either: abandon the disciplinary action altogether; or commence the process afresh by issuing the Claimant with a proper show cause letter. 62. From the record, it appears that the Respondent settled for the second option. This did not render the subsequent disciplinary process commenced through the show cause letter of 12th June 2026 illegitimate. Rather, it addressed a deficiency which had been noted in the earlier disciplinary process in order to ensure that the process is undertaken in accordance with the applicable Human Resource Manual. 63. The Claimant further contends that the Respondent has not supplied him with the material it proposes to rely on during the proposed disciplinary hearing. However and as was noted from the case of Ian Changamu v Co-operative University of Kenya (supra), this alone cannot justify ELRC CAUSE NO. E642 OF 2026 22

page 22 of 32

stoppage of a disciplinary process for two reasons. First, an employee who is affected by such flaw in a disciplinary process usually has the opportunity to challenge the flaw through an appeal or review process. Second, the employee may seek the assistance of the court to access the documents beforehand. 64. Further, in the case of Wycliffe Gisebe Nyakina v Council of the Institute of Human Resource Management & 3 others (supra), it was observed that a court should only intervene in disciplinary proceedings at interlocutory stage for purposes of requiring the employer to correct anomalies in the process before allowing it to progress. The intention of the intervention should not be to scuttle the process altogether. 65. Taking these guidelines into account and acknowledging the right of the Claimant to fair hearing and fair administrative action, all that the court can do at this stage is to direct the Respondent to supply him (the Claimant) with all the material it proposes to rely on during the disciplinary hearing. This includes but is not limited to: the preliminary investigation report; particulars of the cases he is said to have represented clients in his private capacity; and the documents referred to in the letter dated 30 th October 2025 by Wandeto Wachira Advocates. 66. The Claimant has also raised grievances regarding his suspension from duty. He contends that the letter of ELRC CAUSE NO. E642 OF 2026 23

page 23 of 32

suspension declared him culpable before the hearing of his case. 67. However and as has been pointed out in the various decisions referred to earlier in the decision, an administrative suspension does not imply culpability of the affected employee. Its purpose is to guarantee the integrity of the investigation process and the affected employee need not have been heard before it is imposed. 68. As such, the mere fact that the letter of suspension which the Respondent issued to the Claimant stated that the results of the preliminary investigations pointed to his culpability does not imply that the Respondent has already declared him culpable. Rather, it merely communicates the fact that the preliminary results of the investigation point to the fact that he has a case to answer. The Claimant retains the right and is indeed entitled to deconstruct the preliminary findings during the disciplinary hearing. 69. In his submissions, the Claimant avers that the Respondent did not indicate the statutory basis for the decision to suspend him from duty. He contends that the Respondent’s assertions in the letter of suspension that the accusations against him could lead to his summary dismissal are not backed by the provisions of its (the Respondent’s) Human Resource Manual. He further asserts that the Respondent has not demonstrated that he was likely to interfere with investigations to warrant the decision to suspend him. ELRC CAUSE NO. E642 OF 2026 24

page 24 of 32

70. The Claimant further contends in his submissions that the decision to suspend him on half salary contravened section 43 of the Conflict of Interest Act which states that a public officer on suspension is entitled to full pay. However, it is noteworthy that he did not raise this grievance in either the application under consideration or the affidavits in support thereof. 71. In response, the Respondent asserts that it relied on section 71(2) and (3) of the Public Service Commission Act to suspend the Claimant. It contends that this provision entitles it to suspend an employee who is under investigation on half pay. 72. Section 43 (1) of the Conflict of Interest Act provides as follows:‘’Subject to the Constitution and any written law, a public officer may be suspended from office with full pay pending the investigation and determination of allegations made against that officer where such suspension is considered necessary.’’ 73. On the other hand, section 71(2) & (3) of the Public Service Commission Act provides as follows:‘’….An authorized officer may suspend a public officer against whom proceedings for dismissal have been taken if, as a result of those proceedings, the authorized officer determines that the public officer ought to be dismissed. ELRC CAUSE NO. E642 OF 2026 25

page 25 of 32

….A public officer who is suspended shall receive a half basic salary and full house allowance but other benefits shall be withheld by the authorized officer:’’ 74. It is apparent from the foresaid that the provision in the Conflict of Interest Act which requires a public officer on suspension to be granted full pay is subject to other provisions on the matter in the Constitution and other laws. As such, the provision is arguably subject to section 71 (2) & (3) of the Public Service Commission Act which directs that a public officer on suspension should receive half pay. Further, clause 4.47.4 (iii) of the Respondent’s Human Resource Manual, which applies to the Claimant, stipulates that an employee who is on suspension will be entitled to half of his basic pay. 75. The Claimant has raised other issues which go to the merits of the accusations against him. For instance, he provides a detailed explanation why the Law Society of Kenya records depict his station of work as Owino Kojo and Company Advocates instead of the Respondent. He also challenges the Respondent’s assertion that he was involved in private work which resulted in conflict of interest. Based on this, he contends that the accusations leveled against him raise no cause of action to warrant the Respondent to subject him to disciplinary action. 76. However, these are not matters which the court is entitled to evaluate at the pre-disciplinary stage as they fall within the mandate of the Disciplinary Committee. This reality was ELRC CAUSE NO. E642 OF 2026 26

page 26 of 32

spoken to in the case of Ian Changamu v Co-operative University of Kenya (supra), when the trial court stated as follows:‘’I have carefully considered the averments in the Replying Affidavit, they are largely on the demerits of the accusations that are being levelled against the Claimant. It shall not be proper to this Court to venture into the demerits or otherwise of the accusations. That should be left for canvassing at the disciplinary hearing.’’ 77. The Claimant further contends that the disciplinary process against him has been ongoing for more than six months. He contends that this offends the Respondent’s Human Resource Manual and should be stopped. 78. The Claimant appears to rely on clause 4.44 of the Respondent’s Manual which provides as follows:‘’Disciplinary cases should be dealt with promptly and finalized within a period of six months. Where it is found impracticable to do so, the Commission Secretary shall report individual cases to the Commission explaining the reasons for the delay.’’ 79. In response, the Respondent contends that the Claimant’s case has not been on for more than six months. It contends that the first case which was based on the letter of show cause dated 10th November 2025 was terminated and afresh case commenced through the show cause letter dated 12 th June 2026. ELRC CAUSE NO. E642 OF 2026 27

page 27 of 32

80. I have considered the contrasting positions expressed by the parties on this aspect of the case. First, I note that although the aforesaid clause requires disciplinary cases against employees to be processed within six months, it acknowledges that this may not always be possible. Second, the clause provides that where it is not possible to conclude a disciplinary process within six months, the Commission Secretary should explain the reasons for the delay to the Commission. It appears to me that once this explanation is rendered, it is left to the Commission to determine whether to enlarge time for finalization of the case. 81. In this case, the Respondent’s Acting Secretary swore an affidavit to explain that once he realized that the first letter of show cause was issued without instructions, he brought this matter to the attention of the Commission and sought further guidance. It is only after he (the Secretary) did this that he issued the second show cause letter. 82. Having regard to the foresaid, it appears to the court that the Respondent acted within the procedure which is set out in clause 4.44 of the Manual. The fresh disciplinary process was commenced after the reasons for the failure to finalize the first process were brought to the Commission’s attention. 83. The Claimant also faults the Respondent of accusing him of conflict of interest based on the provisions of the Conflict of Interest Act which came into force after the impugned acts. He contends ELRC CAUSE NO. E642 OF 2026 that this legislation cannot be applied 28

page 28 of 32

retroactively to punish him for acts which allegedly occurred before it came into force. 84. However, it is apparent from the preliminary material on record that the conflict of interest accusations against the Claimant are not just founded on the provisions of the Conflict of Interest Act. They are also founded on his contract which speaks to the issue of conflict of interest. 85. The Claimant has further invoked section 89 of the Employment Act to argue that the disciplinary proceedings against him are time barred. However and in the court’s view, that provision only imposes limitation of actions in respect of proceedings commenced before a court of law. It has no application to internal administrative disciplinary processes by an employer. 86. Having regard to the foregoing, the court is not satisfied that the Claimant has presented cogent material to justify why the court should nullify the proposed disciplinary action against him. Case law shows that unless an employee facing a disciplinary process demonstrates that the process is irredeemably flawed and that he has no other way of getting a remedy against the process other than by stalling it (the process), the court should not intervene in the matter. 87. The foregoing being the case, it is difficult to find that the Claimant has demonstrated that he has established a prima facie case. He has not demonstrated that the process against him is irredeemably flawed and that he is unlikely to ELRC CAUSE NO. E642 OF 2026 29

page 29 of 32

get reprieve through any other means other than stalling it (the process). 88. The court notes that clauses 4.49 and 4.50 of the Respondent’s Human Resource Manual grants the Claimant the right of appeal and review against any decision which the Respondent may render. This creates a window through which he may challenge any adverse findings by the Respondent without first approaching the court. As such, the court is not persuaded that an order of injunction should issue at this preliminary stage to stall the process. Determination 89. The Claimant has failed to satisfy the first condition for grant of an interim order of injunction either to restrain the Respondent from processing the impugned disciplinary hearing against him or to compel it (the Respondent) to lift the suspension. This being the case, it is not necessary for the court to inquire into whether the other conditions for grant of the orders sought have been satisfied. As such, the application for interim injunction fails. 90. However, the court directs the Respondent to supply the Claimant with any and all materials it proposes to rely on during the proposed disciplinary action against him. The material should be supplied to the Claimant at least ten (10) days before the date proposed for hearing of the disciplinary case. 91. The order for the Respondent to supply the Claimant with the materials which it shall rely on at the disciplinary hearing ELRC CAUSE NO. E642 OF 2026 30

page 30 of 32

is anchored on section 4 (3) of the Fair Administrative Action Act which obligates a decision maker to give the person affected by the decision, inter alia, information, materials and evidence to be relied upon in making the decision or taking the administrative action. 92. Costs of the application shall abide the outcome of the suit. Dated, signed and delivered on the 24th day of September, 2026 B. O. M. MANANI JUDGE In the presence of: …………….for the Claimant …………….for the Respondent ORDER In light of the directions issued on 12 th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance ELRC CAUSE NO. E642 OF 2026 with Rule 28 (3) of the ELRC 31

page 31 of 32

Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court. B. O. M MANANI ELRC CAUSE NO. E642 OF 2026 32

page 32 of 32