Temu v Judicial Service Commission & another [2023] KEELRC 3361 (KLR)

Temu v Judicial Service Commission & another (Employment and Labour Relations Cause E032 of 2022) [2023] KEELRC 3361 (KLR) (11 December 2023) (Judgment)

Neutral citation: [2023] KEELRC 3361 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nakuru

Employment and Labour Relations Cause E032 of 2022

HS Wasilwa, J

December 11, 2023

Between

Joseph Aganyo Temu

Claimant

and

Judicial Service Commission

1st Respondent

Chief Registrar of the Judiciary

2nd Respondent

Judgment

1. By a memorandum of claim dated 15th August, 2022, the claimant sued the Respondents jointly for alleged unfair termination without sufficient cause and sought for the following reliefs; -a.A declaration that the claimant was unfairly dismissed from employment by the respondents and the reason for dismissal as contained in the summary dismissal letter dated 4th January, 2021 was invalid.b.A declaration that the decision made by the respondents on the 20th December, 2020 and communicated to the claimant though the letter dated 4th January, 2021 was disproportionate, unfair, lacked valid reason and therefore null and void.c.An Order to quash the Respondents’ decision against the claimant made on 10th December, 2020 and communicated to the claimant through the letter dated 4th January, 2021, which decision summarily dismissed the claimant from employment.d.An order of reinstatement of the claimant from the date of suspension being 24th October, 2019 to the position that he held before suspension and ultimate dismissal of a court higher clerical clerk in the judiciary without loss of benefits and salary.e.An order directing the Respondents to pay the claimant all withheld salaries accruing from the date of suspension being 24th October, 2019 to the date of reinstatement.f.An order for damages for unfair dismissal.g.Terminal allowances and or retirement benefits.h.Costs and interest.

Claimant’s case. 2. The claimant states that he was employed by the 1st Respondent as a clerical officer on 21st March, 2001 and deployed to Nyahururu law Court. He was then confirmed on permanent and pensionable terms on 26th July, 2007. He was promoted to the position of higher clerical officer by the letter of 28th August, 2009.

3. He states that he served the Respondent diligently with a lot of commitment without any warning letter until 14th May, 2019 when the Respondent served him with a query requiring him to tender an explanation on how he received in his KCB bank account Kshs 270,000 from Maua law Courts account.

4. The claimant responded by his letter of 23rd May, 2019 giving a detailed explanation of the relevant transactions. However, the Respondent wrote a second letter dated 24th October, 2019 suspending him from service on the basis that he had not accounted for the entire sum in his account as there is Kshs 21, 500, which was not explained. He was also required to respond to the said suspension letter and explain the said Kshs 21500.

5. By a letter of 29th October, 2019, he gave an explanation on how the said money was deposited into his account. He however took issue with the fact that the Respondent in one letter suspended him with immediate effect but still required him to show cause why disciplinary action should not be taken against him. He states that by the suspension, the claimant was condemned unheard.

6. By a letter dated 27th February, 2020, the claimant was invited for a disciplinary hearing scheduled for 9th March, 2020. He appeared before the DRHM on the stated date however he was not heard but instead he was advised to refund the said Kshs 270,000 to judiciary, Maua Branch. That he immediately acted on the said instructions and deposited the entire sum to Judiciary Account Number No. [particulars withheld] KCB Bank, Maua Branch and received a receipt as proof of payment.

7. After paying the said money, he was informed by Charity Kanini Mbogo through email to attend a disciplinary hearing virtually scheduled for 20th August, 2020, which he did. After hearing, the claimant was dismissed from service by a termination letter dated 4th January, 2021 for loss of Kshs 270,000. He was however shocked that the dismissal emanated from the alleged loss of Kshs 270,000 when the suspension and notice to show cause made reference to Kshs 21,500.

8. He states that he wrote to the Respondent seeking to be supplied with the minutes of the meeting held on 23rd January, 2021 and documents relied upon in making the decision, in order to prepare for his appeal, but his request was in vain. Nonetheless, he appealed against the said dismissal by his letter of 9th February, 2021, but that he was not invited for hearing of the said appeal and on 28th June, 2021, he received a letter dismissing the Appeal.

9. It is the claimant’s case that the refusal by the Respondent to supply him with the documents the disciplinary committee relied upon was in violation of section 23(1) and Section 25(4) of the Third Schedule of the Judiciary Service Act. Furthermore, that the failure to supply the claimant with the said documentation was in breach of his right to access to justice, Fair Administrative actions and fair hearing guaranteed under Articles 47, 48 and 50 of the Constitution.

10. The claimant stated that the move by the Respondent to direct him to make good the loss and later dismiss him from service amounted to double jeopardy. Further that the termination was unfair because the DRHM had made recommendation for his reinstatement which recommendation was not followed by the Respondents.

11. The claimant also stated that the termination was unfair because Jacob Ongaro Waka, the accountant of Maua law court at the time, exonerated him and confirmed that the claimant was not aware of the source of the said money or its intentions. Further that Mr. Waka, admitted that he is the one that deposited the said money to the claimant’s account. Having admitted as much, the claimant should be discharged from any responsibility and the Respondents follow the person that deposited the said money into his account.

12. Based on the foregoing, the claimant states that the reason for his termination are unjustified, unreasonable and unfair and urged this Court to compensate him for the unfair termination.

13. During hearing, the claimant testified as CW-1 and adopted his witness statement of 15th august, 2022 and produced the documents of even dated as his exhibits which were marked as claimant exhibit 1-19 respectively, while the letter dated 8. 11. 2019 was marked for identification(MF-1).

14. On the genesis of this case, the claimant testified that on 15th March, 2016, he received a call from Mr. Jacob Waka, informing him that there was someone that owes him money and wanted to repay through KCB Bank which he did not have and needed the money deposited urgently. He requested the claimant to send him the details of his KCB bank account, a request which he obliged. He testified that when he received the said money he was instructed to withdraw and send to the said Mr. Waka. He stated that he withdrew the first transaction Kshs 54,000 and send to Mr Waka on his phone number [particulars withheld] on 17th March, 2016. He received Kshs 50,000 on 20. 5.2016 and send Kshs 45,000 to Mr. waka on 19. 5.216, he received another Kshs 50,000 and send Kshs 45,000 to Mr Waka through Mpesa on 20. 5.2016 and on 11. 5.2016, he received another Kshs 50,000, where Kshs 45,000 was sent to Mr Waka on 12. 5.2016. The last transaction was of Kshs 60,000 which was deposited on 9. 6.2017, where he withdrew 59500 and send to Mr Waka in Nakuru, while the Kshs 500 were bank charges.

15. He testified that after the audit, he was asked to account for the Kshs 21,500 and was immediately suspended. He told this Court that he did not know the source of the said money until after the audit was done that he was informed that the said money was from Maua Law Courts. He stated that with regard to the Kshs 21500, which he had not accounted, Kshs 5,000 was sent to Mr. Waka’s wife on 1. 10. 2017, Kshs 3500 to Mr. Waka on 8. 2.2017 and Kshs 10100 to Mr. Waka on 1. 11. 2017. Therefore, that he had accounted for all the Kshs 270,000 that passed through his account.

16. The claimant admitted to appearing before disciplinary hearing three time and that the first hearing, the Head of station, Maua law court recommended that he pay back the entire Kshs 270,000 then disciplinary hearing was postponed. At the second hearing he had paid Kshs 200,000 and was required to first pay back the entire Kshs 270,000 before the case could proceed. He was eventually heard 20. 8.2020, only to be terminated on 4. 1.2021.

17. The witness maintained that he did not collude with Mr. Waka to defraud the judiciary and stated that the signatories of the said account and the head of stations, together with Jacob Waka are answerable. He added that he never benefited from the said money, therefore his termination was unfair.

18. Upon cross-examination, he testified that he is familiar with the judiciary HR Manual and that he knows that chapter 6 of the constitution applies to him as a public office. He also admitted that he gave out his bank account willingly and indeed received the Kshs 270,000, which he later learnt was from Maua law Court deposits account. He maintained that he withdrew all the monies and gave to Mr. waka and and Kshs 5,000 to Mr. Wakas wife. He stated that he did not report the matter to the police. Also that he had been charged in Court in another case and JSC interdict him.

19. Upon cross examination by Kanjama Advocate, the witness testified that he knew the source of the money to be someone who owed Mr. Waka. That he only learnt that the said money was from Maua law Court, when he was summoned by DCIO on 12. 3.2019 to record a statement.

20. On re-examination he testified that he was indeed charged for impersonation. The state entered nolle prosequi and interdiction in the former case was lifted.

21. The second witness was Jacob Ongaro Waka, who testified as CW-2. He testified that he received summons to appear before this Court and produced the summons as Claimant’s exhibit 21. He testified that he was asked to produced the letter dated 8. 11. 2019 which had been marked as MF-1 and now produced as Exhibit 17. He clarified that the letter in issue was his response to the CRJ show cause letter and a confirmation that he did not collude with the claimant as the claimant was not a member of Maua Law Courts.

22. Upon cross examination by Owano Advocate, the witness testified that there is a pending petition number 90 of 2021 between him and the JSC and that in the petition, he did not admit to defrauding the judiciary. He also reiterated that he never colluded with the claimant. He testified that he asked the claimant for his KCB Bank account number to reimburse depositors of Maua Law Court, He also admitted to receiving all the monies from the claimant.

23. On re-examination, he reiterated that the claimant refunded all the monies received and that he returned all the money to the judiciary account. He maintained that the claimant was not aware where the money was emanating from and also that the judiciary did not lose any money.

Respondent’s Case. 24. The Respondent entered appearance on the 25th October, 2022 through the firm of Muma Kanjama Advocates and filed a response to claim on 17th February, 2023 denying the claim herein, stating that the termination of the claimant was based on valid grounds and procedurally fair and prayed for the suit to be dismissed with costs.

25. The Respondents states that the genesis of this case arose when the Respondent carried out internal audit in Maua Law Courts between 15th and 26th October, 2018 and a report tabled before the Respondents on 18th April, 2019. During the said audit, it was discovered that between July, 2015 and September, 2018, the claimant had been implicated for colluding with Jacob Ongara Waka, former Accountant in charge of Maua Law Court, to defraud the judiciary of funds amounting to Kshs. 270,000.

26. The collusion did not only violatejudiciary Finance policy and Procedure manual 2014 but also amounted to Gross misconduct warranting dismissal of the claimant in line with section D (7. 2) of the Judiciary HR Policies and Procedures Manual and Section 44(3) & (4) of the Employment Act.

27. As soon as this was noted, the claimant was served with a notice to show cause by the letter of 14th May, 2019 referring the finding to the audit report No. 9 of section 4. 2.2 and requiring him to give an explanation how he was paid Kshs 270,000 from Maua law Courts account.

28. It is stated that the claimant responded by his letter of 23rd May, 2019 admitting to giving bank account details to one Jacob Ongaro Waka (Former Maua Accountant) and receiving several deposits amounting to Kshs 270,000 in unexplained circumstances and withdrawing the said money and remitting to the said Mr. Waka.

29. After thorough analysis of the response received, the Director Audit and Risk management of the judiciary noted that the claimant had remitted the money received in his account save for Kshs 21500 which he retained in his account, he was thus asked to refund the said money, while disciplinary action commenced.

30. Disciplinary proceedings ensured therefrom, with a notice to show cause issued on 24th October, 2019 why disciplinary action should not be taken against him for gross misconduct, i.e. corrupt practices and collusion to defraud the judiciary. By a response dated 29th October, 2019, the claimant admitted to receiving Kshs 21500 from Mr. Waka and disbursed it to him as follows; Kshs 15100 through Mpesa, Kshs 5,000 to Mr Waka’s wife and Kshs 1,563 catered for the bank charges.

31. The claimant appeared before the disciplinary committee, Human Resource Management Advisory Committee(HRMAC) on several occasions; 9th March, 2020, 5th June, 2020 and 20th August, 2020 and fully participated in the proceedings therein.

32. After close of the disciplinary hearing and upon deliberation of the proceedings, the committee observed that the claimant’s allegations that he did not know the identity of the depositor was questionable and the committee agreed that the claimant had indeed colluded with Mr. Waka to defraud the judiciary. On that basis, the committee unanimously made recommendation to have the services of the claimant terminated for gross misconduct with effect from 24th October, 2019.

33. The said recommendations were presented to JSC-HRM on 7th December, 2020 and the JSC approved in the meeting of 10th December, 2020. Thereafter the decision to terminate the claimant’s services was communicated by the letter of 4th January, 2021 which was duly served on the claimant.

34. The claimant appealed against his dismissal but the appeal was dismissed on 24th June, 2021 for failure to advance sufficient grounds. This decision was communicated to the claimant on 28th June, 2021. It is added that appeals are normally considered with the documentations attached and a decision made.

35. The Respondent maintained that the letter requesting for documentation was done after the claimant had been terminated and not during the disciplinary hearing. Further that there was no meeting held on 23rd January, 2021 as such there were no minutes that the claiamnt could be given. Also that there was no recommendation by the DRHM for reinstatement of the claimant as alleged in the claim.

36. The Respondent reiterated that the termination of the claimant was justified as it followed due procedure and the claim herein is without merit.

37. During hearing, the Respondent summons two witnesses, Ronald Wanyama and Stephen Mutua. Ronald Wanyama testified as RW-1 and stated that he is the judiciary’s Director Audit and Risk management, a position that he has held from the year 2013. He adopted his statement of 16. 2.2023 and produced the list of documents dated 17. 2.2023 as Respondent’s exhibits. He elaborated on what an audit report entails and stated that an audit report contains; revenue, deposits, procurement and expenditure. He stated that the audit reports showed that there were deposits that had been made out of the deposits account to persons who were not depositors. He elaborated that before a person is refunded their cash bail, they usually present a copy of the receipt and evidence of payment and if the receipt is lost they swear an affidavit. He stated that they discovered that some monies had been paid out of the deposits accounts into accounts which were not depositors account and on further scrutiny, they discover that the claimant had received Kshs. 270,000 in five deposits.

38. He testified that they made recommendations to the Chief Registrar to have the matter investigated on the circumstances under which the claimant was paid the said money.

39. Upon cross examination by Mongeri advocate, the witness testified that the judiciary normally prepares audit report and in 2018/2019 the audit plan included Maua Law Courts. He admitted that the audit plan was not produced in Court. He stated that the claimant was not working in Maua law courts but that the money deposited in his account came from deposits accounts of Maua Law Courts.

40. Upon further cross examination he testified that during the audit he questioned Mr. Jacob Waka on the irregularities, who confirmed that he was the one that deposited the money into the claimant’s account. He also stated that there were several other employees who received the said money including Lilian Waigwa. He confirmed that all employees who were involved in the irregularities were not taken through disciplinary process. He reiterated that the claimant refunded the entire sum received in his account back to the judiciary account.

41. Stephen Mutua, the Judiciary Director HRMD, testified as RW-2. He adopted his witness statement of 10. 2.2023 and testified that the case herein is about the judiciary being defrauded of its depositor’s funds. He stated that several employees had received the money from the said depositors account and the claimant was one of them. He testified that he was called by the CRJ to explain how the said money was wired to the claimant and others. He testified that upon interrogating the claimant, the claimant stated that he sent the entire sum to Mr. Waka, however that the report showed that the claimant retained a sum of Kshs 21500. He testified that the claimant was taken through the disciplinary process and while the process was going on, he refunded Kshs. 200,000 and cleared the balance later.

42. RW-2 testified that, despite the claimant refunding the said money to the judiciary, he was found culpable and eventually dismissed from service. The witness maintained that the claimant was taken through due process and all his rights were upheld at all levels.

43. Upon cross examination by Mongeri Advocate, the witness testified that he was not a member of the disciplinary committee but that Dr. Kalei, Director HR, represented the Human Resource department. He testified that Dr. Kalei did not record a statement and that his statement was based on their finding as a secretariat. He stated that the claimant was issued with a notice to show cause on all the payments made from Maua law courts. He stated that there was a report made by the in charge Maua Law Courts for the claimant to refund the entire sum of money and for him to be rehabilitated. He admitted that that the perpetrator of the fraud was one Mr. Waka.

44. Upon further cross examination, he testified that the decision to dismiss the claimant was made by the Judicial Service Commission and the secretary of the commission communicated the same by the dismissal letter. He maintained that the disciplinary committee did not clear the claimant in the first stage because he had not paid the entire sum of Kshs 270,000. He also stated that the claimant was dismissed for fraud of Kshs 270,000, though another letter had indicated that the disciplinary proceedings were for loss of Kshs 21000. He clarified that the money lost was from depositors account which the judiciary is the custodian.

45. On re-examination by Musyoka Advocate, the witness testified that he was present in the disciplinary committee as secretariat not panel member. He also clarified that the judiciary does not have Hansard for HR disciplinary proceedings. He reiterated that the claimant was subjected through due process and given adequate time to responded to the allegations against him. He however stated that the explanation given was not comprehensive to absolved him from the charges levelled against him.

46. The witness testified further that the claimant had never raised the issue that he wanted to be served with particulars documents. Also that the decision made by the head of Station is not final on disciplinary process. He concluded that the judiciary did not incur any losses as the claimant refunded the money.

Claimant’s Submissions. 47. The claimant submitted on two issues; whether the claimant was unfairly dismissed from employment and whether he is entitled to the reliefs sought.

48. On the the first issue, it was submitted that the claimant was issued with two letters, the first one on the 14th October, 2019 requiring the claimant to show cause why disciplinary action should not be taken against him on account of Kshs 270,000. The second letter of 24th October, 2019 on the other hand was a suspension letter that required the claimant to account unaccounted sum of Kshs 21500. It was submitted that since the suspension letter came after he had responded to the Notice to show cause and only in respect of Kshs. 21500, it meant that the explanation given on the Notice to show cause was satisfactory. He argued that the disciplinary hearing was unfair, first because the claimant was first required to pay Kshs 270,000 before he could be heard by the disciplinary committee, an indication that he had already be adjudged. Secondly, that the disciplinary proceedings began with disputed sum being Kshs 21500 only to be changed to Kshs. 270,000 which formed the basis for dismissal. He argued that being asked to refund the said money and then subjected to disciplinary proceedings that terminated his services amounted to double jeopardy.

49. It was argued that since the claimant had paid the money in dispute, he had legitimate expectation that his services will be retained. Further that the invitation letter had expressly stated that the issues for determination emanates from the letter of 24th October, 2019, which was the suspension letter which was based on Kshs. 21,500 but that on hearing he was interrogated on the sum of Kshs 270,000, which he was not prepared on and thus could not properly defend himself.

50. The claimant submitted further that his dismissal from services was unfair because it was based on a settled claim of Kshs 270,000 which he had settled following direction given by the Head of station Maua law Court not because he had defrauded the judiciary.

51. On the reliefs sought, the claimant cited the case of Kenya Revenue AuthorityvReuwal Waithaka Gitahi & 2 others [2019] eKLR where the Court held that; -“The standard of proof is on a balance of probability, not beyond reasonable doubt, and all the employer is required to prove are the reasons that it “genuinely believed to exist,” causing it to terminate the employee’s services. That is a partly subjective test… Similar guidelines are to be found in Halsbury's Laws of England, 4th Edition, Vol. 16(1B) para 642, thus;...In adjudicating on the reasonableness of the employer's conduct, an employment tribunal must not simply substitute its own views for those of the employer and decide whether it would have dismissed on those facts; it must make a wider inquiry to determine whether a reasonable employer could have decided to dismiss on those facts. The basis of this approach (the range of reasonable responses test) is that in many cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view and another quite reasonably take another; the function of a tribunal as an industrial jury is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted . If the dismissal falls within the band, the dismissal is fair; but if the dismissal falls outside the band, it is unfair.”

52. Accordingly, it was submitted that section 49 of the Employment Act provides for remedies that can be granted to an aggrieved party. Additionally, that section 12(3)(vii) of the Employment and labour Relations Court Act provides for the powers of the court to include; make orders for reinstatement subject to such conditions that the court deems fit to impose in any circumstances contemplated under the law. He thus prayed for the claim to be allowed as prayed.

Respondent’s Submissions. 53. The Respondent submitted on three issues; whether a valid reason to dismiss the claimant has been proved, whether due process was followed and what are the appropriate reliefs.

54. On the first issue, the Respondent submitted that the burden of proof lies with he who alleged as contemplated under section 107 of the Evidence Act. It was argued that the Respondents have produced the audit report dated 18th April, 2019 for Maua Law Courts that was conducted by the judiciary directorate of Audit and Risk management that shows that some money were illegally deposited to staff accounts including the claimant herein who received Kshs 270,000 in his KCB account.

55. It was argued that the circumstances under which the claimant received the said money was fraudulent, denotes of corruption and distrust. Further that the allegations that the claimant was not aware who the depositors were is far from the truth, because he never questioned the said Mr. Waka on the source of the said money and why the said Mr. Waka could not open his own KCB account. Based on that, it was argued that the behaviour of the claimant, denotes a person who was fully aware of the said Mr. Waka’s schemes and colluded with him to defraud the depositors’ funds held by the judiciary.

56. It is contended that the argument by the claimant that he never benefited from the proceeds of the said fraud does not negate the fact that he was an accomplice. Further that to save his skin, he agreed to refund the sum received, a move which infers an admission of guilt. Furthermore, that the claimant has admitted in his pleadings and testimony that he received the said money and never reported the same until the audit was done, a clear indication that he was part and parcel of the financial malpractice syndicate that was only got on their heels.

57. The Respondent submitted that, it rightly and justifiably suspected the claimant for committing criminal offence of defrauding the judiciary which acts amount to gross misconduct punishable by summary dismissal as stipulated under Section 44(4)(g) of the Employment Act.it was argued that gross misconduct is defined under Section D.7. 2 (ix) of the HR Manual to include undue influence, taking bribes, forgeries and misappropriation of funds. Further that the act of colluding with others to defraud the judiciary is contrary to Public Finance Management (National Government) Regulations and the Judiciary Finance policy and Procedure manual particular in management of depositors funds. Also that the claimant placed himself in a position where his personal interest, conflicts or appear to conflict with the duties of his office, contrary to the provisions of the Judicial Code of Conduct and Ethics.

58. Based on the foregoing, the Respondent submitted that it genuinely believed that there were reasonable and sufficient grounds to suspect that the claimant had committed gross misconduct and done acts which were detrimental to his employer, leading to disciplinary action. To support this position, they relied on the case of Kenya Revenue Authority v Reuwal Waithaka Gitahi & 2 others [2019] and the case of Evans Kamandi Misango v Barclays Bank of Kenya Limited [2015] eKLR where the court held that;“It is not the role of the Court to re-enact the internal disciplinary process already undertaken at the workplace. The responsibility of the Court is to examine the legality and reasonableness of the action taken by an employer against an employee and if the set standards are satisfied, then the Court will not interfere.”

59. Accordingly, that the Respondent considered the claimant’s response dated 23rd May, 2019 to the show cause letter of 14th October, 2019. Response dated 29th October, 2019 to the suspension dated 24th October, 2019, the claimant statements of account and Mpesa statement, claimant refunds of the said money of Kshs 270,000, head of station comment of 3rd February, 2020, claimant’s submission made during disciplinary hearing on the 9th March, 2020, 5th June, 2020 and 20th August, 2020 and Mr Waka disciplinary proceedings and noted that the claimant was not innocent and that he indeed colluded with Mr Waka to defraud the judiciary.

60. Flowing from the above, the Respondent submitted that they have justifiable reasons to subject the claimant to disciplinary process. In this they cited the case of Judicial Service Commission v Gladys Boss Shollei [2014] eKLR.

61. On whether due process was followed, it was submitted that the Respondent followed due process from issuing the notice to show cause, to inviting the claimant for disciplinary hearing which was carried out on three different occasions, that the claimant fully participated in as detailed in the Respondent’s case above. It was argued that, based on the procedure adopted, its clear beyond peradventure that the claimant was accorded due procedure and terminated as an employee of the judiciary in accordance with the law. Additionally, that mandate of decision making is vested in the JSC and not DHRMC which is only authorised to hear disciplinary cases and make recommendation.

62. On the reliefs sought, it was submitted that since they have demonstrated that the termination was justified, the claimant does not deserve any of the reliefs sought. In this they relied on the case of John Ngoko Isoe v Nyasiongo Tea Factory Co. Ltd [2017] eKLR where the Court held that;-“The claimant has failed to prove a case of unfair termination of employment. This is against the respondents overwhelming evidence of massive misconduct on his part, leading do dismissal. This is out rightly a case of lawful termination of employment. The claimant’s case falls by the wayside. This answers the 1st issue for determination. The 2nd issue for determination is whether the claimant is entitled to the relief sought. He is not. Having lost on a case of unlawful termination of employment, he is not entitled to the relief sought. I am therefore inclined to dismiss the claim…”

63. The Respondent submitted that the claimant was not subjected to double jeopardy because, he was not subjected to any criminal charges, while the administrative disciplinary proceedings were going on. He added that even if the two were done concurrently, the same are distinct and the claim of double jeopardy cannot arise.

64. On the prayer for reinstatement, the Respondent submitted that the relationship between the claimant and it employer has already been strained by the allegation of fraud raised herein and the prayer for reinstatement is not a viable option. In this they cited the decision in Civil Appeal Nakuru No. E082 of 2022; JSC and Another v Aggrey Oure Onyango where the Court held that; -“In the circumstances we find the reinstatement of the Respondent would constitute compulsion on the employer’s part, to take back an employee whose actions caused the employer to suffer huge financial loss. It would, in our considered view, be difficult for the employer to trust the Respondent, given the events that led to the dismissal. we therefore set aside the orders for reinstatement ... ”

65. In conclusion, the Respondent submitted that they had a valid reason to subject the claimant to disciplinary process which was done in accordance with the law and the HR Manual as such the termination was justified and prayed for the suit herein to be dismissed with costs to the Respondents.

66. I have examined all the evidence and submissions of the parties herein.

67. The issues for this court’s determination are as follows;1. Whether there were valid reasons to dismiss the services of the claimant.2. Whether the claimant was subjected to a fair disciplinary process.3. Whether the claimant is entitled to the remedies sought.

Issue No. 1: Reason for Dismissal 68. From the contends of the letter of dismissal to the claimant by the respondents dated 4th January 2021, the reason given for his dismissal is gross misconduct. The letter stated that this gross misconduct was in relation to collusion to defraud Judiciary funds amounting to kshs.270,000/= for Maua Law Courts deposit account.

69. It was indicated that the dismissal was with effect from 24th October 2019, being the date he was suspended from duty vide the said letter. His right to appeal to the JSC was indicated and he was asked to return any Judiciary property in his possession.

70. Prior to this dismissal the claimant had been served with a letter dated 14th May 2019 asking him to explain how 270,000/= from a deposit bank account of Maua Law Courts was paid into his account on diverse dates between 16th March, 2016 to 7th June, 2017.

71. In response to this letter the claimant responded vide a letter dated 23/5/2019 indicating that he had never worked at Maua Law Courts nor deposited any money to his account from that court.

72. He however indicated that sometimes in March 2016, he was called by a colleague and friend who had worked with him in Nakuru Law Courts from 3rd June 2003 to 2006 by the name Jacob Waka who was working at Maua Law Courts as an Accountant and informed him that his debtor who owed him money wanted to deposit some money in a KCB account in instalments and requested him if he had an account in the same bank to kindly send him the account number so the debtor could pay him through claimant’s bank.

73. He had also indicated that he needed the money urgently as he was travelling.

74. The claimant gave him his account No.1179705769 Mombasa High Court Branch. That the said Jacob Waka proceeded to deposit the money in his account and the claimant transferred the amount to Wako through M-pesa deposit and through direct deposit to Wako’s account.

75. The moneys were deposited in claimant’s account on 16/03/2016 – kshs.60,000/=, 19/5/2016 - Kshs.50,000/=, 31/03/2016 – Kshs.50,000/=, 11/10/2016 – 45,000/= & 07/06/2017 – kshs.60,000/=.

76. The claimant averred that the said Waka had not disclosed to him that the source of the money was from cash bail deposits purported to have been deposited by him since he had never stood surety neither paid cash bail for any accused person at Maua Law Courts or at any other station where he had worked.

77. The claimant indicated that he had no reason to doubt Jacob Waka since he had known him as a colleague and a friend.

78. Vide a letter dated 24/10/2019, the claimant was now suspended from duty on half salary and asked to show cause why he should not be dismissed from duty for gross misconduct. He responded by a letter dated 29/10/2019 explaining the circumstances under which the cash was deposited into his account.

79. He also indicated vide his M-pesa statement how he later transferred the amounts deposited to Waka via M-pesa and also gave his wife in cash form. Vide a letter dated 27/2/2020 the claimant was invited to a disciplinary hearing scheduled for 9th March 2020 at 8. 30am before the Human Resource Management Advisory Committee.

80. The claimant indicates that he appeared as scheduled on 20/8/2020 before the said committee and vide a letter dated 4th January 2021 he was informed of the JSC’s decision to dismiss him from service following a decision made on 10th December, 2020.

81. He appealed the decision but the appeal was disallowed. He also sought to be provided with some documents to enable him file his appeal but none were supplied.

82. He indicated that when he appeared before the Disciplinary Human Resource Management Committee as summoned he was verbally advised to pay the Judiciary funds alleged to have been lost totalling kshs.270,000/= which he paid back.

83. From the chronology of events above, the claimant explained how the money paid to his account by his colleague Waka was paid.

84. It is clear from the proceedings that the Human Resource Committee found him the claimant culpable of the accusation levelled against him or not.

85. From those minutes of Human Resource and Management Advisory Committee held on 20th August 2020 starting at 9. 05am, the committee found the money was deposited in his account 4 times and so he was not innocent of the subject matter.

86. The committee then recommended that Mr. Temu be dismissed from service with effect from 24th October, 2019 on account of gross misconduct.

87. The issue before this court is whether there were valid reasons to warrant this dismissal.

88. As indicated in these proceedings, the accusation was colluding with others to defraud the Judiciary of 270,000/=.

89. The claimant had previously been charged and suspended with the offence of the loss of kshs.21,500/= as per the letter of 24th October, 2019.

90. It is therefore evident that as he went for the disciplinary hearing, the accusation related to defrauding of the Judiciary of kshs.21,500/= he responded accordingly and was later invited for a disciplinary hearing referring to the suspension letter of 24th October 2019 which also referred to kshs.21,500/=.

91. It is however apparent that the claimant was now found culpable of defrauding the Judiciary kshs.270,000/= as per his dismissal letter which was now different from what the initial charge had stated.

92. My understanding is that the charge must correspond to the final finding of calpability against the claimant.

93. This discrepancy renders the validity of reasons inconclusive and I therefore find that there were no valid reasons to warrant dismissal of the claimant.

Issue No. 2: Fair Hearing 94. The next issue for determination is whether the claimant was subjected to a fair disciplinary process.

95. I have explained above the processes the claimant was subjected to starting from the notice to show cause through the suspension and the hearing process.

96. After the hearing before the hearing committee, the committee recommended the claimant’s dismissal. This report must have been referred to the Judicial Service Commission and thereafter the Judicial Service Commission without granting the claimant any other chance to be heard made a decision against the claimant dismissing him from service. Was the claimant dismissed following the hearing before the Human Resource Committee or by the decision of the Judicial Service Commission.

97. Fair disciplinary processes envisages that a man should not be condemned unheard. The Judicial Service Commission having received a report from the Human Resource Committee had an obligation to summon the claimant and inform him that they had received the report of the Human Resource Committee but still needed to hear from him before any further action could be made against him.

98. This, the Judicial Service Commission failed to do but went ahead and dismissed the claimant from service based on recommendation of the Human Resource committee.

99. That not-withstanding, the claimant sought also for production of documents including minutes of the Human Resource Committee hearing but none was supplied to him.

100. Section 23 (1) of the 3rd Schedule of the Judicial Service Act states as follows;-“23(1)Copies of proceedings.(1)An officer in respect of whom disciplinary proceedings are to be held under this Part shall be entitled to receive a free copy of any documentary evidence relied on for the purpose of the proceedings, or to be allowed access to it”.

101. Under this provision, it is mandatory to supply a true copy of any documentary evidence relied upon by the commission in any disciplinary process. There is no evidence that this was done in respect of the claimant despite his requests.

102. Article 50 (2)(f) of the Constitution also states as follows;-“(1)Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.(2)Every accused person has the right to a fair trial, which includes the right—(a)to be presumed innocent until the contrary is proved;(b)to be informed of the charge, with sufficient detail to answer it;(c)to have adequate time and facilities to prepare a defence;(d)to a public trial before a court established under this Constitution;(e)to have the trial begin and conclude without unreasonable delay;(f)to be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed.”

103. The claimant was never heard before the Judicial Service Commission which finally made a decision to dismiss him.

104. This issue was also raised in the appeal filed by the claimant which the Judicial Service Commission also disregarded.

105. The claimant had been heard by the Human Resource Management Advisory Committee but was dismissed by the Judicial Service Commission without being given any hearing.

106. This in my view was in contravention of Section 41 of the Employment Act 2007 which mandates that an employee should be accorded a fair hearing whilst facing any disciplinary issue.

107. When the claimant filed his appeal, it was dismissed/or considered in his absence and disregarded. He was thus denied an opportunity to be heard and by extension establish the truthfulness or otherwise of the accusations against him.

108. Section 45 (2) of the Employment Act states as follows;-“45. (1).....(2)A termination of employment 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-(i)related to the employee’s conduct, capacity or compatibility; or(ii)based on the operational requirements of the employer; and(c)that the employment was terminated in accordance with fair procedure”.

109. Having considered these averments and having found that there were no valid reasons to warrant the claimant’s dismissal and that he was not given a fair hearing, I find his dismissal unfair and unjustified and I declare it so.

Issue No.3: Remedies 110. The claimant has served the Judiciary since 2001, a total of 22 years. Given the unfairness meted on me and given the difficulty of finding alternative employment at his age, I find the only remedy that can compensate the claimant is reinstatement which I grant with effect from the date of this Judgment with back pay with effect from the date of dismissal without any loss of salary benefits.

111. The dismissal letter is dated 4/1/2021 and the act of back dating it to 24/10/2019 is prejudicial to the claimant and being applied retrospectively against the law.

112. I take the date of dismissal therefore to be 4/1/2021.

113. The respondent will pay costs of this case.

DATED AND DELIVERED IN OPEN COURT THIS 11TH DAY OF DECEMBER, 2023. HON. LADY JUSTICE HELLEN WASILWAJUDGEIn the presence of:Moenga for Claimant – presentMusyoka for Respondent – presentCourt Assistant - Fred