https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2220

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR** **RELATIONS COURT AT NAKURU** **CAUSE NUMBER E063 OF 2025** **BETWEEN** ROBERT KIPLAGAT TARUS ..................................................................CLAIMANT **VERSUS** 1. PUBLIC SERVICE COMMISSION 2. KENYA FOREST SERVICE ............................................................ RESPONDENTS *Rika J* *Court Assistant: Emmanul Kiprono* *\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_* *Daye & Company Advocates for the Claimant* *Ms Isenya for the 1st Respondent* *Ms. Nyariki for the 2nd Respondent* *\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_* **JUDGMENT** 1. The dispute involving the Parties herein, was dealt with by the 1st Respondent, in a decision rendered on 14th May 2025. 2. The 1st Respondent, Public Service Commission of Kenya, found that the 2nd Respondent, Kenya Forest Service, terminated the Claimant’s contract unfairly, and awarded him compensation equivalent of 12 months’ salary. 3. The Claimant was dissatisfied with the decision of the 1st Respondent and moved to this Court, pursuing an order of reinstatement, without loss of benefits. 4. It was agreed by the Parties that the Claim is considered and disposed of, on the strength of their pleadings and documents. It was last mentioned on 11th May 2026, when the Parties confirmed / undertook filing and exchange of their closing submissions. 5. The Claimant submits that he merited reinstatement. Allegations against him were baseless. He merely acted on instructions given by his superiors. The 1st Respondent denied him an order for reinstatement, without giving cogent reason. The 1st Respondent submits that it exercised its discretion judiciously by awarding the Claimant compensation. The 2nd Respondent’s position is that the 1st Respondent dealt with the dispute in accordance with the law. The Claimant was offered payment, equivalent of his 12 months’ salary, as granted by the 1st Respondent. He declined the cheque. **The Court Finds**: - 1. Upon his dismissal by the 2nd Respondent, the Claimant made an appeal internally against the decision, which was declined. 2. This prompted him to file an appeal with the 1st Respondent, pursuant to The Public Service Commission [State Corporations and Public Universities [Disciplinary Appeals Procedures] Guidelines, 2023. 3. The Claimant’s appeal is dated 15th October 2024. 4. The 1st Respondent gave its decision on the appeal, on 14th May 2025, awarding the Claimant equivalent of 12 months’ salary in compensation for unfair termination. 5. Regulation 21 of the succeeding subsidiary law, The Public Service Commission [State Corporations and Public Universities] [Disciplinary Appeals Procedures] Regulations, Legal Notice No. 61 of 2025, allowed the Claimant to seek review of the determination of his appeal. 6. He could do so within 6 months of the date of determination. 7. He made an application for review dated 23rd May 2025. 8. The 1st Respondent declined review application, upholding its determination on appeal, in a decision dated 27th August 2025. 9. Does this Court have jurisdiction to entertain a Claim filed against the 1st Respondent’s decision on appeal and review? 10. Regulation 22, requires the 1st Respondent to communicate its decision on review to the Applicant, within 7 days after determination. This was done. 11. Regulation 23 [1] states:- “ Any person who is affected by the decision of the Commission may, where a party to the appeal fails to implement the decision of the Commission, apply to the Employment and Labour Relations Court, for enforcement of the decision of the Commission, in accordance with Article 162[2] of the Constitution. “ 1. Regulation 23 [2] states:- ‘’ Any party to an application for review who is dissatisfied with the decision of the Commission in respect of the application, may apply to the Employment and Labour Relations Court for judicial review of the decision, in accordance with Article 162 [2] of the Constitution.’’ 1. Section 89 of the Public Service Commission Act, confines the jurisdiction of the Employment and Labour Relations Court, to enforcement of decisions made by the 1st Respondent on appeal and review. It does not mention judicial review by the Court. 2. The Act and Regulations need alignment, so that jurisdiction of the Court, is not in doubt. 1. The Court would assume jurisdiction in the Claim, based on the reading of the Public Service Commission Act and the most recent subsidiary law, The Public Service Commission [State Corporations and Public Universities [Disciplinary Appeals Procedures] Regulations, 2025. 2. The Commission found on appeal, that the Claimant was dismissed on account of negligent performance of his duty. He abetted forest destruction. He allowed collection of firewood. He allowed destruction of underclass pine regeneration, from an area under his responsibility. The vehicle ferrying fire wood was detained within his area. There was no evidence that the Claimant acted upon instructions of his superior. The 1st Respondent found that there was valid reason to dismiss the Claimant. 3. Procedure was found to be defective. The notice to attend disciplinary hearing was inadequate and unreasonable. On this ground the 1st Respondent found that termination was procedurally unfair. 4. There is no material offered by the Claimant in his Claim, to warrant the Court’s interference, with the findings of the 1st Respondent. 5. There was no obligation on the part of the 1st Respondent to reinstate the Claimant, having found that he was dismissed on valid ground. 6. The Claimant was not bound to act on the instructions of his superior, to destroy the forest. Such instructions would only have issued unlawfully. He was only bound to act on instructions of his superior issued upon him regularly and lawfully. 7. The Public Service Commission exercised its discretion judiciously, in granting the Claimant equivalent of 12 months’ salary in compensation for unfair termination. 8. It would have been disproportionate, if an order of reinstatement was issued, based merely on the finding that the Claimant was invited for disciplinary hearing late, and procedure therefore unfair. The substantive ground justifying termination, was grave. **IT IS ORDERED**: - 1. **The Claim is declined.** 2. **No order on the costs.** Dated, signed and delivered electronically at Nakuru, under Rule 68[5] of the E&LRC [Procedure] Rules, 2024, this 30th day of July 2026. James Rika Judge