https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1766

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **ELRC CAUSE NO. E1019 OF 2023** **AGATHA WANJIKU WAHOME….............................................CLAIMANT** **VERSUS** **THE INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION (IEBC)………………………………………………………........RESPONDENT** **JUDGEMENT** **Background** 1. The Claimant was employed by the Respondent’s predecessor, the Interim Independent Electoral Commission, as a Manager, Internal Audit and Compliance with effect from 22nd November 2010. She was subsequently absorbed by the Respondent in the same position after it (the Respondent) replaced the Interim Independent Electoral Commission. 2. The Claimant contends that the Respondent issued her with a letter dated 14th September 2018 through which it falsely accused her of improper handling of classified information. She avers that the Respondent accused her of sanctioning the photocopying and smuggling of documents containing the aforesaid information without the authority of its (the Respondent’s) accounting officer. 3. The Claimant avers that the Respondent issued her a show cause letter asking her to explain why disciplinary action should not be taken against her for the alleged breach. She contends that through the same letter, it (the Respondent) interdicted her from work. 4. The Claimant avers that in her response to the show cause letter, she informed the Respondent that release of the impugned data had been sanctioned by its (the Respondent’s) accounting officer. It is her case that the accounting officer sent her a text message authorizing her to share the data with the Directorate of Information Communication Technology. 5. The Claimant avers that at the time she was sent on interdiction, her basic salary was Ksh. 219,615.00 per month. However, she avers that this amount was reduced to Ksh. 109,807.50 during the period of her interdiction. She further avers that the Respondent withheld all her other allowances and stepped down her pension contribution from Ksh. 32,942.25 to Ksh. 16,471.13. 6. The Claimant avers that in the meanwhile, the Salaries and Remuneration Commission (the SRC) reviewed salary for the Respondent’s officers serving in various grades with effect from December 2018. As a result, she avers that her basic pay was increased to Ksh. 235,475.00 from this month. She however states that the Respondent continued to pay her a lesser amount than what the SRC had sanctioned. 7. The Claimant contends that she appeared before the Respondent’s Disciplinary Committee on 8th April 2019 for hearing of her case. She asserts that the Committee was improperly constituted since the Respondent’s accounting officer who had sanctioned the release of the data which she was accused of irregularly releasing was part of it (the Committee). 8. The Claimant avers that despite her solid defense to the accusations against her, the Disciplinary Committee wrote to her on 15th April 2019 asserting that her defense was inadmissible and that she had been found culpable of the said accusations. She contends that the Respondent informed her that it had consequently demoted her from her position of Manager, Finance (Grade 4) to the position of Regional Accountant (Grade 6). 9. The Claimant contends that as a result of the demotion, her salary was stepped down to Ksh. 145,468.00 per month instead of the sum of Ksh. 235,475.00 she was to earn as Manager, Finance. She further contends that all her other allowances were also stepped down. 10. The Claimant avers that she wrote to the Respondent on 1st July 2019 to appeal the decision to demote her. However, she avers that the Respondent wrote to her on 15th July 2019 informing her that the appeal had been unsuccessful. 11. The Claimant avers that the Respondent informed her that her case was to be reviewed after one year depending on her work performance and attitude. She contends that she was surprised by this since the issue of her performance and attitude had not featured in her disciplinary case. 12. The Claimant gives other details of her subsequent requests for review of her case which were declined. However, she avers that the Respondent subsequently notified her through its letter of 5th July 2021 that it had upgraded her from grade 6 to grade 5. 13. The Claimant avers that she was still not happy with the aforesaid communication. Consequently, she avers that she wrote to the Respondent on 9th September 2021 to request that she be reinstated to her earlier position of grade 4. 14. The Claimant contends that although the Respondent wrote to decline her request, she remained undeterred and wrote once again to make the same request prompting the Respondent to accede to it through its letter dated 12th January 2023. She avers that the Respondent informed her that she was to be deployed to the position of Manager, Risk and Compliance but at the aforesaid grade (Grade 4). 15. The Claimant avers that instead of the Respondent deploying her to the new position at her salary of Ksh. 235,475.00 at the time she was demoted, it placed her on a salary of Ksh. 164,258.00. She contends that despite her request for this anomaly to be corrected, the Respondent refused to do so. 16. The Claimant asserts that Respondent’s decision to demote her from job grade 4 to job grade 6 was without justification. As such, she argues that the reduction of her basic salary, allowances and pension contribution was unjustified 17. The Claimant further asserts that the Respondent’s refusal to restore her salary and other benefits to what she was earning at job grade 4 after she was reinstated to that grade in January 2023 was without justification. Consequently, she claims for the amounts which were allegedly not paid to her as a result which include pension contributions, leave pay and transfer allowance. 18. The Respondent has opposed the claim. Its response can be summarized as follows:- 19. That the Claimant wrongly permitted the sharing of confidential data without prior authorization. 20. That the Claimant was therefore correctly subjected to disciplinary action and penalized for her misconduct. 21. That the applicable Human Resource Policy Manual entitles it (the Respondent) to pay an officer who is facing disciplinary action half salary without allowances. 22. That the Claimant was paid half salary during her interdiction in line with the aforesaid policy. 23. That the Human Resource Policy Manual entitles it (the Respondent) to demote an employee as a sanction for misconduct. 24. That the Claimant was therefore lawfully demoted. 25. That once the Claimant was demoted to grade 6, her salary, allowances and other benefits (including transfer allowance and leave entitlement) were adjusted accordingly to what is permissible under that grade. 26. That when the Claimant was upgraded to grade 5, her salary and other benefits (including transfer allowance and leave entitlement) were accordingly adjusted to what is permissible for that grade. 27. That when the Claimant was upgraded back to grade 4, her salary and benefits (including transfer allowance and leave entitlement) were adjusted to what an officer at entry level to that grade is supposed to earn in terms of what is sanctioned by the SRC. 28. That the Claimant’s pension contributions were also adjusted accordingly as she moved through the various grades as stated above. 29. That the Claimant was therefore appropriately remunerated and that there are no outstanding dues (including alleged salary arrears, unpaid pension contributions, accrued leave pay, transfer allowance and other allowances) in her favour. **Issues for Determination** 1. After evaluating the pleadings, evidence, submissions by the parties and the applicable regulatory instruments, the following issues arise for determination:- 2. Whether the Claimant can lawfully challenge the lawfulness of the decision to demote her at this stage of the case. 3. Whether the Claimant is entitled to the reliefs which she seeks through this action. **Analysis** 1. The court has scrutinized the record and it is apparent that the disciplinary process against the Claimant was triggered by the Respondent’s letter to her dated 14th September 2018. Through this letter, the Respondent accused the Claimant of having allowed the sharing of classified data without the authorization of the accounting officer. At the same time, it (the Respondent) interdicted the Claimant from service. 2. The record shows that the Claimant responded to the aforesaid letter through her letter dated 24th September 2018. She disputed the accusations against her. 3. The Respondent subsequently invited the Claimant for a disciplinary hearing which was scheduled for 9th April 2019. After the hearing, the Respondent wrote to the Claimant on 15th April 2019 communicating its decision to demote her to the position of Regional Accountant (Grade 6). The demotion was meted out to the Claimant as a penal sanction. 4. The record shows that the Claimant appealed the decision through her letter dated 1st July 2019. On 15th July 2019, the Respondent wrote to her rejecting the appeal effectively upholding its decision to downgrade her to grade 6 as a penal measure. 5. Clause 12.13 of the Respondent’s Human Resource Policy Manual provides for the various sanctions which it (the Respondent) is entitled to mete out against an employee. They include reduction in grade. As such, the Respondent was entitled to demote the Claimant as a penal sanction for the infraction she had been accused of. 6. Clause 12.14 of the Human Resource Policy Manual provides for the right of appeal. However, it allows the Respondent to consider only one appeal from its decision against an employee. 7. As stated earlier, the Claimant filed an appeal against her demotion which was rejected by the Respondent through its letter dated 15th July 2019. As such, her disciplinary case was effectively determined on 15th July 2019. 8. Whilst clause 12.15 of the Human Resource Policy Manual provides for subsequent reviews of the Respondent’s decision, this is intended to provide an avenue for upgrading an employee who has been slapped with the sanction of a demotion. It does not amount to re-opening of the disciplinary case with a view to assessing the merits of the disciplinary decision. 9. Indeed, this reality is evident from the fact that the Claimant utilized the window for review to push for her upgrading back to grade 4. She did not invoke the avenue to challenge the merits of the earlier decision to demote her to grade 6. 10. The foregoing has implications on whether the Claimant can legitimately challenge the propriety of the disciplinary process which commenced on 14th September 2018 (through the show cause letter which was issued to her) and terminated on 15th July 2019 (when her appeal was dismissed) through this action which was instituted after 7th December 2023 if the date of the Statement of Claim is anything to go by. 11. Section 89 of *the Employment Act* provides as follows:- *‘’Notwithstanding the provisions of section 4(1) of the Limitation of Actions Act (Cap. 22), no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained or in the case of continuing injury or damage within twelve months next after the cessation thereof.’’* 1. My understanding of this provision is that it obligates an employee who wishes to challenge the legitimacy of a decision that adversely affects her contract of service to move the court within three years of the cause of action arising. The only exception to this requirement is in respect of continuing injury claims which must be filed within one year of cessation of the injury. 2. In the instant case, the cause of action with regard to the legitimacy of the decision to demote the Claimant crystalized on 15th July 2019 when the Respondent dismissed her appeal against the decision (see ***Kiige v National Hospital Insurance Fund [2026] KECA 309 (KLR)***). As such and in terms of section 89 of *the Employment Act*, if she wished to challenge the propriety of the decision, she ought to have done so within three years from 15th July 2019, that is to say by 15th July 2022. 3. The instant claim seeking to challenge the propriety of the Respondent’s decision to demote the Claimant was filed in December 2023, well beyond the three year window which the law permits. It was therefore filed outside time. 4. A statute of limitation has the effect of ousting the court’s jurisdiction to entertain a claim out of time. Once the statutory limitation period lapses, the right to institute the claim is extinguished by operation of law thereby ousting the court’s jurisdiction over the matter (see ***James Momanyi Kabiri v Hako Industries Limited [2018] KEELRC 2155 (KLR),*** ***Hellen Mauta Mutinda v County Government of Machakos & another [2017] KEELRC 256 (KLR)***& ***Makanga v ABSA Bank Kenya Limited (Formerly Barclays Bank of Kenya) (Miscellaneous Application E365 of 2025) [2025] KEELRC 3683 (KLR) (18 December 2025) (Ruling)***). 5. It is apparent that the parties did not raise this matter. However, the question of jurisdiction is so central to a case that it can be taken up by the court on its own motion. Underscoring this point in the case of ***Kamau v Karanja & another [2024] KESC 64 (KLR),*** the Supreme Court of Kenya observed as follows:- *‘’It is a basic rule of procedure that jurisdiction must, in the first instance exist when the proceedings are initiated, and because the question of jurisdiction is so fundamental, it can be raised at any stage of the proceedings before the final decision is rendered. It can be raised by any party or even by the court suo motu.’’* 1. The fact that the Claimant moved to challenge the propriety of the Respondent’s decision to demote her more than three years after the decision had been made dislodges this court’s jurisdiction to inquire into that issue. It is so declared. 2. The Claimant has also challenged the legitimacy of the Respondent’s decision to pay her half salary without allowances during the period she was on interdiction. In response, the Respondent posited that its regulations entitle it to pay an employee who is on interdiction half salary without allowances. 3. Clause 10.2.5.1 of the Respondent’s Human Resource Policy Manual provides as follows regarding interdiction:- *‘’An employee on interdiction shall be paid half basic salary and medical allowance. No other stipulated allowance will be paid.’’* 1. This provision entitled the Respondent to pay the Claimant half salary with no allowances save for her medical cover. As such, her contention that the Respondent erred in doing so is misplaced. 2. As a matter of fact, the Claimant conceded during cross-examination that the Respondent was entitled to pay her half salary without other benefits during the period she was on interdiction. She expressed herself on the matter as follows:- *‘’I got half of my salary during interdiction period….Pg 79 of the Manual has something on interdiction. It says employees on interdiction will be paid half salary (basic) and medical allowance. No other benefits or allowances are paid to an employee on interdiction.’’* 1. The Claimant has also claimed for the difference in what she was earning at grade 4 before she was demoted and what she was paid at grades 6 and 5 after she was demoted. She further prays for the difference between the sum of Ksh. 235,475.00 which she was earning before she was demoted and Ksh. 164,258.00 which she was paid after she was restored to grade 4 in January 2023. She also makes other claims for accrued leave pay, pension contribution arrears and transfer allowance which are anchored on the differentiated salary payments she received whilst she was serving in the various grades aforesaid. 2. In response, the Respondent stated that after the Claimant was demoted to grades 6 and 5, she was paid salary and other emoluments which were commensurate to those grades as recommended by the SRC. It further contended that when she was elevated back to grade 4 in January 2023, she was paid the entry salary and other emoluments for that grade in line with the recommendations by the SRC. It (the Respondent) tendered in evidence a schedule of salary recommendation by SRC to back its position. 3. The Claimant cannot have continued to earn her grade 4 salary and allowances after she was demoted to grade 6. Similarly, she cannot have expected to be paid grade 4 salary and allowances when she was upgraded to grade 5. 4. When the Claimant was demoted as a penal measure, she effectively lost her previous entitlements when she was serving at grade 4. As such, when the Respondent restored her to grade 4, it was entitled to pay her the entry salary and allowances for that grade pending her rise through the ranks to the topmost echelon of the grade. 5. There is no legitimate basis for her contention that she ought to have been paid what she was earning when the decision to demote her was made. After her demotion, she re-entered the grade as a fresh entrant after being upgraded from grades 6 and 5 below. And hence the reality that the Respondent was entitled to pay her the entry salary and allowances to the grade. 6. As a matter of fact, the Claimant confirmed this reality during her cross-examination when she stated as follows:- *‘’On demotion, I was put at grade 6 whose salary is Ksh. 145,468. This is what I was to earn as a grade 6 employee….I was moved to grade 5 on my request. I was paid as a grade 5 employee of the Respondent when it moved me to grade 5……….This is the letter of reinstatement and deployment. It is dated 12.1.2023. It shows I was reinstated to grade 4. My salary was Ksh. 164,258. This was the entry level salary for grade 4 as per the SRC structure. As at the time of filing suit, I had been reinstated to the position of IEBC grade 4. I received my salary throughout whether half basic or full. On interdiction, I got half salary. After demotion, I got salary as a grade 6 and upwards as I was upgraded.’’* 1. Black’s Law Dictionary defines the term ‘’demote’’ to mean ‘’to lower a person in rank, position, pay or other status’’. Thus, it will be the antithesis of the phrase if an employee who has been demoted was to demand that he/she continues to enjoy the benefits which are associated with the position from which he/she has been demoted. **Determination** 1. From the foregoing, the court arrives at the conclusion that the instant claim is unmerited. 2. Consequently, it is dismissed. 3. Each party to bear own costs of the suit. **Dated, signed and delivered on the 26th day of June, 2026** **B. O. M. MANANI** **JUDGE** In the presence of: …………….for the Claimant …………….for the Respondent **ORDER** **In light of the directions issued on 12th 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 with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.** **B. O. M MANANI**