Petition 29 of 2019
2.The petitioner avers that on April 6, 2018, the 1st, 3rd and 4th respondents purported to sit as a plenary session of the 7th respondent and resolved to send him on compulsory leave. That he however was not informed in writing of the said meeting and neither was he afforded an opportunity to defend the decision to send him on compulsory leave. That the internal audit report relied upon contained no adverse findings against him or anyone else so as to justify sending him on compulsory leave and that the said respondents violated provisions of various statutes and of the Constitution of Kenya. Furthermore, compulsory leave is not provided for in the hr and administrative policies and procedures manual.
3.It is the petitioner's averment that in acting in the aforesaid manner, the 1st, 3rd, 4th and 7th respondents' action violated his rights to fair administrative action as contemplated in article 47 of the Constitution of Kenya and further abrogated articles 10, 27(1) and (2), 29, 41 and 232 of the Constitution. That the said respondents subjected him to an illegal removal from his employment and their actions and conduct were calculated to injure him. He avers that the said respondents violated the provisions of the second schedule and fourth schedule of the IEBC Act on the required quorum of five commissioners and the need to treat employees with courtesy and respect. The petitioner thus seeks declaratory orders to the effect that the 1st, 3rd, 4th and 7th respondents have acted in contravention of: the provisions of the second schedule of the IEBC Act as to the conduct of the business affairs of the commission; the provisions of the code of conduct contained in the fourth schedule of the Act; and the petitioner's fundamental rights and freedoms. He further seeks restraining and prohibition orders against the respondents, compensation and/or damages for violation of his rights, and costs of the petition.
4.In opposition to the petition, the 1st, 3rd, 4th and 7th respondents filed their replying affidavit sworn on June 24, 2022 by the 1st respondent and chairperson of the IEBC. The deponent avers that the petitioner's claim has been overtaken by events as the petitioner has since ceased working for the commission and moved on to greener pastures at the Communications Authority of Kenya (CAK). He further avers that as under the Constitution, the Commission is properly constituted as long as it constitutes at least three members at any given time. That since some of the commissioners resigned following the 2017 elections, the remaining three commissioners having reached the quorum could conduct meetings and make decisions that are in the usual course of conduct of the commission's business. That the decision to send the petitioner on compulsory leave pending investigations of the audit committee was therefore made by a properly constituted commission and was legal for all intents and purposes. It is his averment that the petition lacking in basis should thus be dismissed forthwith.
5.The 1st respondent further avers that the petitioner is lying about having not been informed that the meeting of April 6, 2018 would deliberate on matters regarding the impending audit and is sensationalising the decision made by the commission so as to mislead this honourable court. That in fact on January 16, 2018, the commission wrote an internal memo to the petitioner seeking clarifications on the issues that had emerged from the tenders issued for elections materials for the fresh presidential elections held in 2017. That unfortunately, the commission was not satisfied with the petitioner's explanation and through a letter written by the chairperson to the director internal audit, risk and compliance committee, directed the conduct of a detailed review of the issues, which was done and culminated into a preliminary report dated April 5, 2018. That it is this preliminary report that was tabled before the commission's plenary meeting on April 6, 2018 and discussed before the general decision to send the petitioner on compulsory leave was then made to pave way for an expanded scope of the internal audit.
6.He further avers that the petitioner cannot legitimately argue that nothing in the preliminary report proved wrongdoing on his part to justify sending him on compulsory leave. That there was also no need to accord him an opportunity to defend the decision to send him on compulsory leave. That this court ought to disregard the petitioner's erroneous reading of the clauses in the manual and consequent assertion that nothing in the manual provides for compulsory leave. He asserts that the commission simply exercised its administrative function of oversight over a member of the commission, the petitioner, who was informed of the issues that had been raised on the tendering process, was given an opportunity to clarify said issues, meetings were held to discuss the issues in his presence and the decision to expand the audit was also made with his knowledge. That the respondents did not infringe the petitioner's rights to fair administrative action, equality before the law, dignity, fair labour practices and freedom from torture and he is therefore not entitled to damages. Furthermore, the petitioner having moved on to CAK, cannot purport to demand from this honourable court, injunctive orders restraining the respondents from interfering with the status and terms of his employment prior to him being sent on compulsory leave.
Cause 617 of 2019
7.The claimant seeks judgment from this honourable court against the IEBC for:i.A declaration that purported internal audit report relied upon as basis for the notice to show cause which culminated in the claimant's termination was irregular, illegal and a nullity.ii.A declaration that his termination from employment was unfair, unlawful and un-proceduraliii.General damages for breach of the claimant's constitutional rightsiv.Maximum statutory compensation for the unfair, unlawful and un-procedural termination being Kshs 14,022,360/- (Kshs 1,168,530/- x 12 months)v.Payment of the claimant's service gratuity as indicated at clause 8 of the employment contract, being Kshs 14,307,912.36 (31% of every year under the contract)vi.Payment of the claimant's salary during the suspension period Kshs 3,305,590/- (August, September and October 2018)vii.One month's pay in lieu of notice being Kshs 1,168,530/-viii.Balance of the contract from October 12, 2018 to February 2, 2020 being Kshs 19,702,716/- (being gross salary for 16 months)ix.Back pay by virtue of annual increments due but not paid for twenty (20) months being Kshs 1,441,440/-x.An order that the respondent do issue the claimant with a certificate of servicexi.Costs of claimxii.Any other orders that the court may deem fit and just to grant.
8.The claimant avers that his employment with the respondent was for a term of five (5) years renewable only once at the instance of the respondent. That the said contract commenced with effect from February 2, 2015 and as at October 12, 2018, he was earning a monthly gross salary of Kshs 1,168,530/-. He avers that his claim arises from the illegal, irregular, unfair and unjustifiable actions of the respondent categorised into compulsory leave, suspension and termination. His averments on the issue of compulsory leave reiterate those made in his petition.
9.On the issue of suspension, the claimant avers that after a ruling of the court of June 14, 2018, the respondent purported to hold a plenary session that sent him on three months suspension pending a procurement audit relating to the 2017 general elections and the fresh presidential elections of October 26, 2017. That the decision to suspend him was clearly a reaction to the court's ruling rendered by Radido J on the said June 14, 2018 which ruling the respondent sought to circumvent or otherwise render ineffectual. He further avers that his suspension was unlawful and irregular because, again, the purported plenary session of the respondent was not properly convened and lacked quorum, he was not notified of the alleged offences necessitating the suspension, and the respondent irregularly and unjustifiably converted the compulsory leave to a suspension. Furthermore, he was not heard before the suspension and in an act of discrimination, other officers critical in the procurement and financial management of the commission during the period under review were not suspended. He contends that having already been on compulsory leave for over two months, the additional three months' suspension was irregular and more so unjustified as he learnt of the suspension through the 9 O'clock news report and the respondent's social media platforms.
10.As regards termination, the claimant avers that the respondent issued him with a notice to show cause on August 29, 2018 inviting him to respond within seven days to the stated allegations which were based on an attached internal audit report that was being furnished to him for the first time. That the respondent shared the purported internal audit report with the media causing its wide publication before he had been given the opportunity to be heard on the issued raised therein. He avers that in any event, the said internal audit report was illegal, irregular and null and void because: its format was not the one contemplated under the Public Finance Management Act and attendant regulations; was not duly processed by the internal audit committee; was not duly processed by the respondent's plenary; did not have the inputs of the auditees as anticipated by law; was not carried out independently as the internal auditor acted under the direction of the commission's chairperson and commissioners, some of whom had conflict of interest; and the internal audit process was converted into disciplinary proceedings against the claimant.
11.The claimant further avers that the respondents ignored his cry on the inadequate notice and time given to prepare his response to the show cause, and his request to access the respondent's records for him to prepare a defence. That this resulted in his ability to respond nor appear for his oral hearing slated on October 11, 2018 and that subsequently the respondent terminated his services and he was served with a letter of termination dated October 12, 2018. The claimant has in his memorandum of claim also given extensive explanations on the allegations raised in the said notice to show cause. He avers that the said allegations are unmerited, unsubstantiated and do not warrant any adverse findings against him and that the decision to terminate his employment amounted to wrongful, unfair, unlawful and irregular termination. That he was also denied an opportunity to lodge an appeal against the decision to terminate his employment.
12.It is the claimant's averment that the procedure undertaken before termination of his employment was an abrogation of his constitutional rights to human dignity, privacy, access to information, fair labour practices, and fair administrative action as set out under articles 28, 31(d), 35(1)(b), 41(1) and 47 of the Constitution of Kenya respectively. That during the period of the purported suspension and prior to the termination, the respondent did not pay him his lawful dues which he thus claims.
13.The respondent filed a memorandum of response dated January 13, 2020 averring that the claimant's termination was legal, regular, fair and justifiable. That the court gave it liberty to deal with the claimant in accordance with the law and the applicable contractual terms and it therefore dealt with him in accordance with the law. It also avers that this court has no jurisdiction to address the issue of requisite quorum of the IEBC as the same was settled in Petition 212 of 2018 - Isaiah Biwott Kangwony v IEBC  eKLR through the judgment dated August 10, 2018; that the commission as then constituted, had the requisite quorum to conduct the constitutional functions assigned to it since the voluntary resignation of the other commissioners.
14.The respondent avers that the question of its decision to suspend the claimant was already determined by Hon Radido J in a ruling dated July 19, 2018 in Petition 29 of 2018 and that this court considering the issue of suspension would be sitting as an appellate court against the said ruling. It further avers that in yet another ruling of the court dated June 14, 2018 in Petition 29 of 2018, the court noted at paras 68 and 70 that the commission has powers to interdict an employee pending full investigations and to suspend an employee in serious cases. That paragraph 87 of the ruling dated June 14, 2018 further stated that the respondents were not restrained from dealing with the petitioner/applicant's case as provided for in terms of his contractual agreement. That it is on this advice that it suspended the claimant pending investigations and completion of the audit process.
15.It is the respondent's averment that whereas the claimant was required to respond to his show cause on or before September 5, 2018, he sent a letter to the respondents demanding for an extension of time on September 7, 2018 which extension it granted to him. That he nevertheless failed to satisfactorily answer the queries directed to him and further failed to attend a rescheduled oral hearing and that in so doing, deliberately avoided the entire disciplinary process. That it therefore made the decision to terminate his contract which was conducted in accordance with the law and due procedure and asserts that it availed to the claimant all necessary documents. That in any event, the claimant was able to respond to all the audit queries in these proceedings having been the custodian of all procurement documents. It denies there being any conflict of interest among the commissioners in as far as deliberations on the report on major procurements for the said 2017 elections were concerned. It is the respondent's averment that after the lawful termination of the claimant's contract following his negligent refusal to participate in the disciplinary proceedings, he was not entitled to any pay. The respondent prays that the claim be struck out and dismissed with costs.
16.In response, the claimant filed a reply to memorandum of response dated August 10, 2020 reiterating all the averments in his claim including that his termination was unfair, unlawful and unprocedural. He avers that though the respondent was given the liberty to deal with him in a manner specified in the contractual terms, he had a legitimate expectation that the respondent would be guided by principles of natural justice and that due process would be followed. He also avers that weekends and public holidays should not be included in counting the seven days within which he was to respond to the NTSC and that of the many documents he requested for, he was only given a document which had nothing to do with the allegations levelled against him. With regards to the claim of conflict of interest against Prof Guliye, he avers that the respondent has not provided any evidence of Prof Guliye's recusal from the committee proceedings. both the petition and the cause were determined on the basis of pleadings, affidavits and documents on record in terms of rule 21 of the Employment and Labour Relations Court (Procedure) Rules 2016. As such no party gave oral testimony and parties filed submissions in respect of the 2 suits before the court.
Claimant/ Petitioner's Submissions
17.The claimant/ petitioner submits that he has demonstrated in his claim that the audit process was irregular and illegal and no logical explanation has been given for the blatant failure to follow procedure for conducting internal audits. That under regulation 174(6) of the Public Finance Management (National Government) Regulations, 2015, an internal audit committee of an independent office such as the respondent herein should have at least 3 members who are external to the institution. That in sum, the respondents having failed to accord him an opportunity to make representations during the audit process, everything done subsequently was an illegality. He relies in the case of Ahmed Issack Hasssan v Auditor General  eKLR where Lenaola J (as he then was), noted the uncontested fact that the respondent failed to accord the petitioner a hearing before mentioning him adversely in the audit report and held that it does not matter whether evidence presented is overwhelming against a party or speaks adversely against that party because the right to be heard is a cardinal principle that must be granted to any person before a decision against him is made.
18.He further submits that the purported disciplinary committee was composed of only two members as four commissioners had resigned and that since it was irregularly constituted, it could not purport to hear and determine the disciplinary proceedings. Additionally, the decision to terminate his employment was not duly processed through the respondent's full commission meeting and the respondent ought to have produced the minutes of such meeting if it indeed took place. That the burden of proving such fact is upon the respondent as the custodian of the employment records but having failed to do so, it should be concluded that the committee report was never adopted by the full commission.
19.The claimant/ petitioner urges this court to find that he has proved on the required balance his claim for unlawful compulsory leave. That the 1st, 3rd, 4th and 7th respondents' purported decision to send him on compulsory leave was ultra vires pursuant to the provisions of section 10(9) of the IEBC Act. That the three months compulsory leave effectively removed him from office which would have necessitated invocation of the due process stipulated in section 10(9) of the IEBC Act which was however not followed. That the course taken by the 1st, 3rd, 4th and 7th respondents was thus unlawful and the same was properly annulled in the ruling of June 14, 2018. That in any event, disciplinary measures within the IEBC are undertaken as per its hr manual and the specific committee applicable to the petitioner/claimant would be the standing disciplinary committee of the commission comprising of the 2nd, 3rd, 4th and 5th respondents. it is the petitioner/claimant's submission that the plenary session of April 6, 2018 which sent him on compulsory leave was not the standing disciplinary committee, and could not have whimsically constituted itself as such. He urges this court to consider the case of Republic v Institute of Certified Public Accountants of Kenya ex-parte Joy Vipinchandra Bhatt t/a JV Bhatt & Company wherein Emukule J (as he then was) reiterated the holding in R v Barnet London Borough Council ex p Nilish Shah  1 All ER 226 by Lord Carman that it is settled law that an administrative or executive authority entrusted with the exercise of a discretion must direct itself properly in the law.
20.It is the petitioner/claimant's submission that as averred in his petition herein, the conduct by the 1st, 3rd, 4th and 7th respondents was a violation of his right to fair administrative action. That to the extent that his claim challenges the respondents' exercise of administrative authority and carrying out the quasi-judicial function to suspend him, and to the extent that the said decision adversely affects him, he has properly invoked the court's intervention to check the said actions. That this position was appreciated in the case of Elizabeth Washeke & 62 others v Airtel Networks (K) Ltd & another  eKLR. He further submits that fair administrative action as contemplated by article 47 of the Constitution, the provisions of the Fair Administrative Actions Act, common law and fair labour practices as stipulated in article 41 of the Constitution require that he be subjected to due process. That courts have where the disciplinary process is unfairly carried out and in breach of the employees' rights, interfered with the said process as similarly found in Geoffrey Mworia v Water Resources Management Authority & 2 others  eKLR. It is his submission that the 1st, 3rd, 4th and 7th respondents are culpable for misfeasance of public office and are personally liable, as was reiterated by the court in Kenya Country Bus Owners' Association & 8 others v Cabinet Secretary for Transport & Infrastructure & 5 others  eKLR.
21.As regards his suspension, the petitioner/claimant submits that the disciplinary actions available to the IEBC including suspension and interdiction are set out in clause 10.2.2 of the IEBC HR manual with suspension contemplated as a disciplinary measure and not a mere administrative measure. That he was thus entitled to be subjected to due process as set out in clause 10.2.6.2 of the IEBC HR manual before the suspension and that suspension ought to have been the last resort before dismissal and not an initial investigative or administrative measure as the respondent herein made it to be. He cites the case of Fredrick Saundu Amolo v Principal Namanga Mixed Day Secondary School & 2 others wherein Mbaru J noted that the Constitutional Court of South Africa articulated in Chirwa v Transnet and others  2 BLLR 29 and the same reiterated by the court in Industrial Court Petition No 150 of 2012 - In the Matter of Joseph Mburu Kahiga et al v KENATCO Co Ltd et al that for the interdict, suspension, dismissal or a termination to be valid, the same must meet the requirements of substantive and procedural fairness. The petitioner/claimant herein thus invites this court to find that his suspension was unlawful and unjustified.
22.As regards termination of his employment, the petitioner/claimant submits that sections 41 and 45(2) of the Employment Act require that there be a valid reason or reasons for the said termination, and that the procedure undertaken in terminating the employee be fair. That this position was espoused in Walter Ogal Anuro v Teachers Service Commission  eKLR and reiterated in Jane Wanja Muthaura v Ethics and Anti-Corruption Commission  eKLR by Rika J who further stated that all termination of contracts of employment must meet the tests of substantive justification and procedural fairness. He submits that the respondent did not terminate his employment in a procedurally fair manner. That for instance some of the reasons given in his letter of termination were not contained in the notice to show cause meaning his contract was terminated based on reasons and issues he had not been given an opportunity to respond to. Furthermore, the respondents unfairly and unreasonably refused to avail to him the necessary documents and access to information he required to respond to the notice to show cause despite clearly undertaking to do so in the said notice to show cause. He relies on the case of Patrick Abuya v Institute of Certified Public Accountants of Kenya (ICPAK) & another  eKLR where Radido J pointed out at paras 59 and 60 that a case of prejudice is easy to demonstrate where records are available but are not furnished to an employee. It is the claimant's submission that he has demonstrated that termination of his employment was also unfair, unlawful and un-procedural for want of valid reasons and fair procedure in accordance with sections 41, 43, 44 and 45 of the Employment Act.
23.The petitioner/claimant submits that violations of his rights under articles 28, 31(d), 35(1)(b), 41(1), 50, and 47 of the Constitution of Kenya are evident. He relies on the Court of Appeal decision in Civil Appeal No 291 of 2014 - Standard Group Limited v Jenny Luesby  eKLR which found that:“55.…So long as an employee can plead and prove breach of a constitutional right within the context of the employee's contract of employment or demonstrate that he is entitled to damages in circumstances as contemplated under the Employment and Labour Relations Court Act (ELRCA), over and above those awardable for unlawful termination, we see no impediment for the trial court granting such relief. There are many cases, for example, where wrongful or unfair termination is intertwined with breaches of the bill of rights and there is no argument that different reliefs will ensue. The caution must, however, be borne in mind that a balance should be maintained between the interests of the employer and employee and the socio-economic interests of the country as a whole. "
24.He submits that he is entitled to the remedies sought in the memorandum of claim and that section 49(1) of the Employment Act, 2007 sets out several factors which the court ought to take account of in deciding the appropriate remedies to grant. That in Civil Appeal No 163 of 2017 - New Kenya Co-op Creameries Limited v Olga Auma Adede  eKLR, the Court of Appeal quoted the decision in Kenfreight EA Limited v Benson K Nguti  eKLR where the Supreme Court addressing the question of what an award of damages should be based on, clarified that payment of an award in section 49(l)(a) is different from an award under section 49(l)(b) and (c) and that a court is allowed to exercise its judicial discretion to grant any or all of the listed remedies in section 49 as guided by section 49(4)(m). The petitioner/claimant submits that as earlier pointed out in the Standard Group Ltd v Jenny Luesby case (supra), over and above those damages awardable for unlawful termination, and considering the express jurisdiction of the Employment and Labour Relations Court under article 162(2) of the Constitution as read with section 12 of the ELRC Act, this honourable court has no impediment in granting the general damages as pleaded in the memorandum of claim dated September 16, 2019.
25.He submits that further, section 49(l)(c) of the Employment Act provides for the primary remedies for unfair termination of employment/wrongful dismissal. That in Raphael Wellington Okonji v Sunthesis Limited  eKLR, the court opined that although the law does not give the criteria for assessing the quantum for unfair termination, the consequences of the dismissal, circumstances for the dismissal, the difficulty with which to secure another job and the embarrassment suffered by the victim of the unfair dismissal, are among the key factors for consideration. He urges this court to apply these key factors to the present case and find that as a young professional, the termination was a blow to his financial commitments, tarnished his image and occasioned him gross embarrassment. For the claim of gratuity, he submits that under clause 8 of the employment contract, he was entitled to a service gratuity capped at 31% of every year under the contract which he prays this court awards while taking into consideration that his dismissal was unjustified and wrongful. He claims one month's pay in lieu of notice as per clause 16(a) of the employment contract, earned wages is by dint of section 49(1)(b) of the Employment Act and costs of the suit as per section 14(4) of the ELRC Act. He submits that his prayer for a certificate of service is provided for under section 51(1) of the Employment Act and clause 10.4.11 of the IEBC HR and administration policies manual.