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|Case Number:||Cause 49 of 2013|
|Parties:||Michael Kagoma Maina v Kenya Police Service, Public Service Commission & Hon Attorney General|
|Date Delivered:||20 Dec 2013|
|Court:||Employment and Labour Relations Court at Nakuru|
|Citation:||Michael Kagoma Maina v Kenya Police Service & 2 others  eKLR|
|Advocates:||E N Njuguna for the respondents|
|Court Division:||Industrial Court|
|Parties Profile:||Individual v Government|
|Advocates:||E N Njuguna for the respondents|
|History Advocates:||One party or some parties represented|
|Case Outcome:||Judgment entered for the claimant|
|Sum Awarded:||Kshs. 3, 884, 240/=|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT NAKURU
CAUSE NO. 49 OF 2013
MICHAEL KAGOMA MAINA........................................CLAIMANT
KENYA POLICE SERVICE..................................1ST RESPONDENT
PUBLIC SERVICE COMMISSION.....................2ND RESPONDENT
HONOURABLE ATTORNEY GENERAL..............3RD RESPONDENT
(BEFORE HON. JUSTICE BYRAM ONGAYA ON FRIDAY 20TH DECEMBER, 2013)
The Claimant Michael Kagoma Maina filed the memorandum of claim on 19.02.2013 and appeared in person throughout the proceedings. The claimant prayed for:
The 3rd respondent entered appearance for all the respondents and filed the respondents’ memorandum of response on 20.03.2013. The respondents pleaded that the claimant was not entitled to any of the prayers in the memorandum of claim and prayed that the claimant’s suit be dismissed with costs. The claimant further filed a list and copies of documents on 30.10.2013.
The claimant filed the reply to the respondents’ memorandum of response on 10.4.2013. The claimant also filed his affidavits to support his pleadings together with relevant documents. On 10.04.2013, the claimant filed volume I, volume II and volume III of lists and copies of his documents. On 22.04.2013, the claimant filed a further list and copies of documents. On 21.06.2013, the claimant filed a notice of motion together with his supporting affidavit seeking to amend the prayers in the memorandum of claim and leave was granted on 4.7.2013 for the claimant to adapt the prayers as set out in the notice of motion. The court has perused the prayers and considers that they are substantially similar to the prayers made in the memorandum of claim. The claimant further filed on 3.07.2013 a document headed “Executive Summary” and which he adopted as his final submissions as he opted to rely on the filed documents and not to give oral testimony to urge his case.
Learned Senior Litigation Counsel for the respondents Mr. E.N. Njuguna opted to rely on documents on record and filed the respondents’ submissions on 26.11.2013.
The claimant was employed as a police constable on 19.07.1971. In 1983, he was promoted to the rank of Chief Inspector and in 1996 to the gazetted rank of Superintendent.
In October, the claimant was posted to Mwingi Police Division as the Deputy Officer Commanding Police Division and in November, he was appointed the acting Officer Commanding Police Division, Mwingi. In that capacity, he was the District Security Committee’s secretary responsible for implementing decisions of the Committee. In December 2000, it was the claimant’s case, some Somali herdsmen invaded inhabitants of his area of jurisdiction and it fell upon him to implement the Committee’s decision to flush out the herdsmen and their thousands of camels. Despite request for funds from the Commissioner of Police at Vigilance House in Nairobi to carry out the operation orders to flush out the herdsmen, the claimant did not receive the funds. The claimant, therefore, took initiative in consultation with the District Accountant’s Office to mobilize necessary funds from the local traders and the police officers involved were accorded sufficient supplies. The Police Department subsequently availed the funds in May of 2001 and all debts accruing to the local traders were defrayed and allowances due paid to the police officers involved through the District Treasury. The claimant’s further case was that the Commissioner of Police issued the Force Order No. 1 of 2001 prescribing training events which were carried out in Embu and the expenditure paid through the District Treasury.
On 17.05.2001, the claimant received a posting letter from Mwingi to Embu as a Staff Officer Quarter Master. He handed over and the relevant handing over report was executed as required and he proceeded as redeployed. On 29.06.2001, he was arrested by the Provincial Criminal Investigation Officer, Eastern Province and later released as the investigations did not establish his culpability. Subsequently, the investigations continued and the claimant recorded cautionary statements including on 5.08.2001.
The claimant was later deployed to Vigilance House, Nairobi in May, 2004. He was summoned to Embu on 12.10.2004 and bonded to appear in court on 19.10.2004 in criminal case No. 3034 of 2004 latter consolidated with No. 1309 of 2004 in Senior Principal Magistrate Court at Embu. The claimant was charged with the offences of stealing by persons employed in the public service contrary to section 280 of the Penal Code; 3 counts of false claims by persons employed in the public service contrary to section 100 of the Penal Code; and 2 counts of stealing by persons employed in the public service contrary to section 280 of the Penal Code. Prior to the institution of the criminal proceedings, the investigations had taken 3 years and the trial took 8 years. The claimant was acquitted in the criminal proceedings as per exhibit MKM13 after a full hearing. The trial magistrate found that the witnesses who testified had established that the payment vouchers went through processing properly in accordance with the Government procedures and as such the prosecution had failed to prove the case and the accused persons including the claimant were acquitted on all the three charges.
Consequential to the criminal charges, the claimant was interdicted from the police service verbally on 22.10.2004 with effect from 19.10.2004. The interdiction was verbal and conveyed to the claimant by the Deputy Commissioner of Police in charge of complaints and customer care. Exhibit MK11 (a) is the internal memorandum conveying the verbal interdiction and exhibit MK 11(b) is the letter dated 18. 03.2011 addressed to the claimant.
The letter lifting the interdiction stated that the interdiction had been lifted with effect from 19.10.2004, the effective date of the interdiction, and in view of the acquittal in the criminal case. The letter continued to state, thus:
“The Commissioner of Police has further noted that you attained the then mandatory retirement age of 55 years on 27.9.2007. Your effective retirement date will be 28/9/2007. You will therefore forward to this Headquarters the following documents to enable the processing of your final dues:
GEORGE K.O. OMWOYO
FOR: COMMISSIONER OF POLICE”
The claimant wrote to the 1st and 2nd respondents the letter dated 22.03.2011 and raised the following pertinent concerns:
The claimant’s case was that he was irregularly retired effective 27.09.2007 when he attained 55 years of age instead of being allowed to retire on 27.09.2012 upon attaining 60 years of age and in accordance with the new civil service retirement age of 60 years. It was his evidence in exhibit MKM14 that in October 2004, his last gross monthly pay was Kshs.51,170.00.
The court has considered the pleadings, the affidavits and documents on record and the submissions made. The following are the key issues for determination:
On the first issue, the respondents submitted that interdiction was a temporary measure pending finalization of the investigations into the alleged misconduct. The respondents urged the court to take judicial notice that the communication by way of a signal or internal memorandum as was read to the claimant to convey the interdiction was the commonest and quickest way of communicating in disciplined forces like the police service. Further, it was true that the investigations in view of the interdiction took place. Thus, the interdiction was procedural or regular.
The claimant has taken issue and submitted that he was not given the interdiction letter and it was suspect and improper for the letter lifting the interdiction to have referred to the letter imposing the interdiction but in fact never delivered to the claimant.
The court finds that both parties are not in dispute that an interdiction was imposed. The court finds that the claimant was entitled to receive the letter of interdiction over and above the verbal communication. However, the failure to deliver the letter was a procedural irregularity that did not impair or render the interdiction null and void. In particular, the internal memorandum or signal as it is called evidenced the interdiction decision and the half pay salary as prescribed in the regulations for officers on interdiction was imposed. The court finds that the interdiction was procedurally impaired to the extent that the interdiction letter was not delivered to the claimant but that procedural irregularity was not such that the interdiction would be null and void. The procedural irregularity did not occasion substantial injustice and did not go to the foundational jurisdiction of the Commissioner of Police to make the interdiction decision. The court holds that where, like in this case, a procedural irregularity in administrative decision making does not occasion substantial injustice or does not impair or go to the jurisdiction of the decision maker to make the decision, the decision may be allowed to stand as not null or void.
The second issue for determination is whether the claimant was entitled to remain in service up to attainment of 60 years. It is not disputed that while the claimant was serving the interdiction, the Government introduced a new policy increasing the retirement age from 55 years to 60 years.
The respondent has submitted that the increase in mandatory retirement age was introduced under the circular OP.CBA.2/7A of 20.03.2009 as per appendix 3 on the respondents’ list of documents. The circular addressed to chief executive officers of all Government departments including public or statutory bodies and signed by the Permanent Secretary, Secretary to the Cabinet and Head of Public Service Amb. Francis K. Muthaura stated as follows:
“REVIEW OF THE MANDATORY RETIREMENT AGE FOR PUBLIC SERVANTS
The current policy on retirement of Public Servants provides for a mandatory retirement age of 55 years. This is with the exception of Judges, Academic staff in Public Universities, Research Scientists and Public Servants with disabilities whose retirement ranges from 60 years to 74 years.
Due to the current retirement age at 55 years, the Public Service has continued to lose employees with critical skills while they are still productive. This is particularly so with regard to employees in the professional and technical areas in whom the Government has invested considerable resources in training and capacity building, and, who have several years of hands-on-experience in their respective professions. Their retirement has in most cases left succession gaps in key areas, necessitating requests for retention beyond retirement age or re-engagement on contract.
The current policy has also had the effect of rendering employees who would otherwise be productive, largely unproductive and reliant on the tax payer for funding of their pension when they should be contributing to the economy.
Further, the East African Community (EAC) of which Kenya is a member and a signatory to the EAC Treaty, has adopted an official retirement age of 60 years.
In order to address the above challenges and in the spirit of harmonizing the retirement age applicable to the East African Community Countries, the Government has decided to raise the mandatory retirement age for all Public Servants from 55 years to 60 years with effect from 1st April, 2009. The provisions in the Pensions Act Cap.189, various Pension Schemes and other Policy Guidelines governing the Civil Service, Disciplined Services, Teachers, State Corporations, Public Universities and the Armed Forces regarding compulsory and voluntary retirement will remain.
Employees serving on contracts as at 5th March, 2009 after attainment of the age of 55 years will however continue to serve for the duration of these contracts. Contracts expiring before the attainment of the age of 60 years will be renewed in accordance with the provisions of the contracts.
Employees who had already received retirement notices or had their pension claims already prepared, but had not attained the age of 55 years as at 5th March, 2009, will continue to serve until they attain the age of 60 years if they so wish.
All authorized officers, Chief Executive Officers of State Corporations, Vice-Chancellors of Public Universities and Clerks to Local Authorities are required to note and implement this Policy Accordingly.
Amb.Francis K. Muthaura, E.G.H
PERMANENT SECRETARY, SECRETARY TO THE CABINET AND HEAD OF THE PUBLIC SERVICE”
The claimant’s submission was that in view of the circular, he was entitled to retire upon attaining 60 years of age especially that in anticipation of attaining 55 years of age and before the policy, he had applied to retire but he was declined the opportunity in view of the pending criminal case.
The court has evaluated the evidence and finds that if the claimant had been convicted, most invariably the respondents would have dismissed him from the service on account of such culpability. The converse is that if he was not convicted but was acquitted as events turned out in his favour, he would be entitled to benefits of a good, diligent, hardworking and ethical officer. The court considers that during the interdiction, the claimant remained in the full service of the respondents, he had not been terminated, he was on temporary absence from duty and as submitted by the respondents, to facilitate investigations into the alleged misconduct. He was therefore entitled to benefit from the provisions of the circular. To answer the second issue, the court finds that the claimant was entitled to remain in public service up to attainment of 60 years of age and in view of the provisions of the circular. The court holds that in absence of the general constitutional or statutory mandatory retirement age in public or private sectors or any other employment, the age of mandatory retirement is a term of the contract of employment to be agreed between the parties or varied by the employer in consultation with the employee as envisaged in section 10(5) of the Employment Act, 2007. Further, the court holds that termination of contract by way of retirement demands of the employer to make a decision in that regard failing which the employee would be entitled to consider that the employment relationship has not come to an end.
The third issue for determination is whether the retirement at 55 years of age was unfair termination of claimant’s employment. First, the court has found that the claimant was entitled to retire at 60 years in view of the provisions of the circular. Second, the court finds that the respondents were bound to determine the fate of the claimant’s employment based on the outcome of the criminal proceedings, the ground that led to the interdiction. Thus, it was not open for the respondents to determine (and the respondents could not legitimately determine) the employment relationship one way or the other until the criminal case had been determined except by agreement between the parties.
As regards disciplinary cases in the employment relationship and where in the opinion of the employer there exist a criminal element, this court set out the guiding applicable principles in the case of Mathew Kipchumba Koskei –Versus- Baringo Teachers SACCO, Industrial Cause No. 37 of 2013 at Nakuru. At page 13 to 14 of the judgment, the court stated as follows:
“Nevertheless, such circumstances have never ceased to occasion complex considerations that must be taken into account to ensure that justice is done in every individual case. It is the opinion of the court that the following general principles would apply in assessing the individual cases:
The court upheld the opinion in the case of John Kirui Torongei –Versus- National Cereals and Produce Board EKLR. The opinion in upheld in this case.
The claimant has made the submission that under regulation R 20 (4) of the Civil Servants Code of Regulations, retirement under 55 years of age required the 1st respondent to serve the claimant a reasonable notice of not less than 3 months. The claimant’s case was that he was irregularly retired effective 27.09.2007 when he attained 55 years of age instead of being allowed to retire on 27.09.2012 upon attaining 60 years of age and in accordance with the new civil service retire age of 60 years. The letter of retirement was dated 18.03.2011 when the Constitution of Kenya, 2010 was already in force. The claimant therefore submitted that he was entitled to the right to a fair administrative action that was expeditious, efficient, lawful, reasonable, and procedurally fair but was not accorded to him as per Article 47 of the Constitution.
The court has found that the reason for termination namely attaining 55 years of age was invalid in view of the circular increasing retirement age to 60 years. The court further finds that the claimant was not accorded due process as submitted. Accordingly, the court finds that the termination was unfair.
The final issue for determination is whether the claimant is entitled to the remedies as prayed for. The court makes the following findings:
“In making the findings the court considers that the employee is entitled to pay for the period he or she is kept away from work due to unlawful and unfair suspension or termination. In such cases, the employee is entitled to at least partial reinstatement, and therefore compensation whose measure is the proportionate unpaid or withheld salary throughout that period of unlawful or unfair suspension or termination. During such period, the court considers that the employee carries a valid legitimate expectation to return to work and not to work elsewhere until the disciplinary or the ensuing conciliatory and legal proceedings are concluded. In arriving at the finding of entitlement to reinstatement during unlawful or unfair suspension and termination, the court has taken into account the provisions of subsection 49(4) (f) which states that in arriving at the proper remedy, there shall be consideration of, ‘(f) the reasonable expectation of the employee as to the length of time for which his employment with that employer might have continued but for termination;’. The court is of the opinion that for the period the question of unfairness or fairness of the suspension or termination has not been determined, the employee carries a reasonable expectation that for the period pending the determination of that question, the employment has not validly terminated and the employee is entitled to reinstatement during that period provided the employee is exculpated; with pendency of such serious question, the employee is validly expected to pursue the resolution with loyalty not to work for another employer. It is the further opinion of the court that where the court finds that the suspension or termination was unlawful or unfair, the employee is entitled to at least partial reinstatement, and therefore, a total of the salaries due during that period. The exception (to such entitlement to partial reinstatement for the period pending a final decision on the dispute) is where it is established that during that period, the employee took on other gainful employment or the employee fails to exculpate oneself as charged.”
It is the opinion of the court that the quoted opinion applies to interdiction as much as it applies to suspension or termination situations. In this case, the claimant submitted that under regulation 8 (5) of the Public Service Commission (Police Force) Regulations, while under interdiction, he was not allowed to leave his station without permission of the Commissioner of Police and further, under regulation 8 (7) while on interdiction he continued to be a gazetted officer in the police service. It was his case that in the circumstances, he was precluded from taking on any other alternative and productive engagement. The claimant further reinforced his submission with reference to the then prevailing section 44 of the Police Act Cap 84 Laws of Kenya which provided that where any police officer in accordance with the force standing orders or any other written law has been interdicted from duty, he shall not by reason of such interdiction cease to be a police officer. Accordingly, the court finds the claimant was entitled as claimed.
In addition, the court upholds its opinion in Grace Gacheru Muriithi –Versus- Kenya Literature Bureau (2012) eKLR, Industrial Cause No. 44 of 2011, pages 36 and 37 in which the court stated thus:
“The respondent terminated the claimant’s service by the letter dated 20th December 2010 received on 30th December 2010 and with effect from 18th May 2010, the effective date of the suspension. The issue before the court is whether the claimant is entitled to be paid for the period between the date of suspension and the date of conclusion of the disciplinary case being the date the letter of termination was delivered, that is, 30th December 2010. In opposing this claim, counsel for the respondent has cited paragraph 6.2.4 of the respondent‘s terms and conditions of service, 1999 which provides, thus, ‘An employee under suspension will not be entitled to any salary, but may, in case of hardship, and on request be granted an alimentary allowance in such amount and such terms as may be determined by the Managing Director.’
The court considers that an employee on interdiction or suspension has a legitimate expectation that at the end of the disciplinary process he or she will be paid by the employer all the dues if the employee is exculpated. Conversely, if the employee is proved to have engaged in the misconduct as alleged and at the end of the disciplinary process the employee has not exculpated himself or herself, the court considers that the employee would not be entitled to carry a legitimate expectation to be paid for the period of suspension or interdiction. Thus, the court holds that whether an employee will be paid during the period of interdiction or suspension will depend upon the outcome of the disciplinary proceedings. It would be unfair labour practice to deny an employee payment during the period of interdiction or suspension if at the end of the disciplinary process the employee is found innocent. Similarly, it would be unfair labour practice for the employer to be required to pay an employee, during the suspension or interdiction period if at the end of the disciplinary process the employee is found culpable. Accordingly, the court finds paragraph 6.2.4 of the respondent’s Terms and Conditions of Service to be unfair labour practice to the extent that the provisions deny the employees payment even in instances where they exculpate themselves at the end of the disciplinary process. To that extent the provision offends Sub-Articles 41(1) of the Constitution; it is unconstitutional.”
In conclusion, judgment is entered for the claimant against the respondents jointly and severally for:
Signed, dated and delivered in court at Nakuru this Friday, 20th December, 2013.