Letambul v Samburu County Government & another (Cause E038 of 2022)  KEELRC 372 (KLR) (15 February 2023) (Judgment)
Neutral citation:  KEELRC 372 (KLR)
Republic of Kenya
Cause E038 of 2022
ON Makau, J
February 15, 2023
The Samburu County Government
The Samburu County Public Service Board
1.The claimant was employed by the 1st respondent on 1st May, 2013 as the principal information officer in the office of the Governor. Vide the letter dated 2nd April 2015, he was appointed Director of Lands, Survey and Mapping effective 1st May, 2015. The second appointment was on permanent and pensionable basis. His salary was Kshs.156,089.00 but it was later increased to Kshs.246,110.00.
2.On 2nd September, 2020 the 2nd respondent summarily dismissed the claimant for alleged gross misconduct. He was aggrieved and brought this suit contending that the dismissal was unfair and it violated his right to fair labour practices and fair administrative action. The suit seeks the following reliefs:-
3.The respondents were served with the notice of summons and the claim herein but they never filed defence. They were also served with hearing notices but they failed to attend court and as such the suit was heard by way of formal proof.
4.The claimant testified as CW1 and basically adopted his written statement dated 17th August, 2022 and 12 documents as his evidence to support the suit. In brief his case is that he performed his duties diligently and no complaint was raised about his performance, professionalism and/or professional ethics by his immediate boss.
5.He contended that he treated all his colleague and members of the public with courtesy, respect and professionalism so that no one made any formal complaint supported by substantive evidence to implicate him in any misconduct. He further stated that his appointment as Director of Lands, Survey and Mapping upset some staff of the 1st respondent and they embarked on a campaign to besmirch, frustrate and undermine him. They further made unsubstantiated allegations against him regarding his posts on some WhatsApp groups which were not official communication channels by the 1st respondent.
6.He maintained that he was a victim of political and personal attacks from some individuals with the staff of the 1st respondent. Further the allegations made against him were malicious, unsubstantiated and defamatory which renders his dismissal unfair and unlawful.
7.He stated that the 1st Respondents’ HR Advisory and Disciplinary Committee failed to do any investigation on the allegations made against him and treated the same as if they were factual. He further contended that the committee failed to accord fair hearing as required under the Constitution and in a democratic society. He contended that one of the allegation cited for his dismissal letter had been withdrawn by the complainant by a letter dated 4th November 2015. He further stated that some of his accusers like Mr.Bosco Sambu purportedly did the investigations and also took the disciplinary action against him.
8.He maintained that the allegations that led to his dismissal were not substantiated and they were made by persons actuated with personal vendetta against him. Further, the laid down procedure was not adhered to and the law was disregarded. Therefore he contended that the respondent breached his right to fair labour practices under Article 41, 47 and 50 of the Constitution by summarily dismissing him on the basis of rumors and unsubstantiated allegations, and without according a fair hearing based on investigation done by an independent body.
9.Finally he stated that as a result of the unfair dismissal his good reputation was severely damaged and his ability to repay his loan was compromised. Therefore he prayed for the reliefs sought in his claim.
10.It was submitted that the reason for the claimant’s dismissal was not valid and the procedure followed was not fair. It was further submitted that the respondent did not adhere to the procedure set out under section 41 of the Employment Act and the allegations cited for his dismissal have not been particularized and substantiated by evidence.
11.It was therefore contended that the summary dismissal was unfair and it violated claimant’s fundamental right to fair labour practices, fair administrative actions and fair hearing under Article 41, 47 and 50 of the Constitution. As such the court was urged to award the reliefs sought by the claimant in his suit.
12.The facts of the case are not contested and therefore it is fact that the claimant was employed by the respondents in different capacities from 1st May, 2013 to 2nd September, 2020 when he was summarily dismissed. The issues for determination are:a)Whether the reasons for the dismissal was valid and fair.b)Whether fair procedure was followed.c)Whether the reliefs sought are merited.
Reasons for dismissal
13.The reasons for dismissal of the claimant were set out in the dismissal letter dated 2nd September 2020 which is copied below:-
- H.E The Governor
- Ag. County Secretary
- County Head of Human Resource
- County Payroll Manager”
14.The above letter sets out a legion of allegations against the claimant and the manner in which the misconduct was allegedly committed. However the claimant has denied the said misconduct and blamed his predicament on some staff members who were upset when he got the job of Director Land, Survey and Mapping.
15.Section 43 of the Employment Act provides that in any legal proceedings where an employee challenges termination of employment, the employer has the burden of proof of the reason for the termination. In this case the employer has not filed any defence to controvert the claimant’s averments and there is no evidence adduced to rebut the allegations by the claimant. Consequently, I find that burden of proof to establish the validity of the reasons for the dismissal has not been discharged by the respondents.
16.Section 41 of the Employment Act provides that:
17.There is evidence that the claimant was served with a show cause letters and also got invited to a hearing before the County Human Resource Management Advisory Committee. However he contended that he was not given a fair hearing as the allegation against him were not investigated by an independent body. Further the people who were accusing him like Bosco Sambu were the people who sat to hear his disciplinary case.
18.The respondents have not adduced any evidence to rebut the foregoing allegations by the claimant and to prove that the procedure set out in Section 41 of the Employment Act and the claimant’s contract was adhered to before the summary dismissal of the claimant.
19.In view of the finding that the respondent have failed to prove the reasons for dismissing the claimant were valid and fair, and that fair procedure was followed, I now proceed to declare that the summary dismissal of the claimant was unfair and unlawful. The foregoing position is fortified by Section 45 (1) and (2) of the Employment Act which provides thata.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, orii.Based on the operational requirements of the employer; andc.That the employment was terminated in accordance with fair procedure.”
20.The claims founded on violation of the claimant’s rights under Article 27, 35, 47 and 50 of the Constitution are declined because they are not pleaded with reasonable precision and they have not been proved by evidence as held by the High Court in Anarita Karimi Njeru v Republic eKLR.
21.Likewise the prayer for reinstatement is declined because the claimant has not established any special circumstances that would warrant an order for specific performance of his contract of employment nor has he shown that a reinstatement would be practicable. In his own admission, there are colleagues who were upset by his appointment into the position of Director Lands, Survey and Mapping. Consequently, I find that it may not be proper to return to a hostile work place.
22.Consequently, I award him damages being 6 months gross pay as compensation for the unfair termination of his contract of service. In awarding the said sum I have considered that he worked for the respondents for 7 years, and he had reasonable expectation to work until the mandatory retirement age. Further the employer did not prove before this court that the alleged misconduct was valid.
23.The claim for half salary during interdiction and salary after the dismissal is declined because it is not founded on the law or contract. The claim for Kshs.9,000,000.00 as for General costs, exemplary damages and expenses for stress and mental anguish is unknown in our labour law and it is also declined. Likewise the claim for Kshs.12,800,000.00 being special damages for defamation is also declined because it has not been established to the required standards.
24.In conclusion, I enter judgment for the claimant;a. Declaring his summary dismissal unfair and unlawful;b. Awarding him;Salary in lieu of notice………………….Kshs. 246,110.00Compensation………………………….Kshs.1,476,660.00Kshs.1,722,770.00c. The claimant is also awarded costs plus interest at court rate from the date of this judgment.d. The award in (b) shall be paid less statutory deductions.
DATED, SIGNED AND DELIVERED AT NYERI THIS 15TH DAY OF FEBRUARY, 2023.ONESMUS N MAKAUJUDGEOrderIn view of the declaration of measures restricting court operations due to the Covid-19 pandemic and in light of the directions issued by his Lordship, the Chief Justice on 15th April 2020, this judgment 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.ONESMUS N. MAKAUJUDGE