[2024] KEELRC 13491 (KLR)

Adan v Independent Electoral and Boundaries Commission (Petition E003 of 2024) [2024] KEELRC 13491 (KLR) (19 December 2024) (Judgment)

Neutral citation: [2024] KEELRC 13491 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Meru

Petition E003 of 2024

ON Makau, J

December 19, 2024

In The Matter Of Articles 2, 3, 10, 20 (2), 22(1) & (2), 23(1), 35, 41, 47, 48, 50(1) 236 And 250 Of The Constitution Of Kenya,2010 And In The Matter Of Section 41 Of The Employment Act, 2007 And In The Matter Of The Independent Electoral And Boundaries Commission Act, 2011 And In The Matter Of The Fair Administrative Action Act, 2015 And In The Matter Of Violation Of Articles 35, 41, 47, 48, 50(1), 236 And 250 Of The Constitution Of Kenya, 2010 And In The Matter Violation And Section 41 Of The Employment Act And In The Matter Of Violation/breach Of Clauses 12. 5.3, 12. 1.4 And 12. 5.1 Of The Independent Electoral And Boundaries Commission Human Resource And Administration Manual (policies And Procedures) 2020

Between

Abdi Adan

Petitioner

and

Independent Electoral And Boundaries Commission

Respondent

Judgment

Introduction 1. By a Petition dated 28th June 2024, the court was urged to grant the following reliefs: -a.A declaration that the respondent can only formally communicate a decision of the commission when it is lawfully constituted and any purported decision communicated during the absence of the commissioners is unconstitutional, null and void.b.A declaration that the purported disciplinary proceedings conducted by the respondent on 3rd January 2023 and the resultant decision of 6th January 2023 communicated vide letter dated 19th January 2023 was unconstitutional and in violation of the petitioner’s right under Articles 41, 47, 50 and 236 of the Constitution of Kenya, 2010. c.Reinstatement of the petitioner to the rank he held prior to the respondent’s letter dated 19th January 2023 without any loss of rank/insignia/grade and payment of the salary and allowances and other benefits entitled to him from the date of suspension.d.An order restraining the respondent, its agents, servants or any other person acting for and or on their behalf from taking any disciplinary action against the petitioner or interfering with his employment in any manner whatsoever on account of the petition herein.e.Costs of this petition be granted to the petitioner.f.Any other relief or remedy this Honourable court may deem fit and just to grant in the interest of justice.

2. The petition is supported by affidavits dated 8th June 2024 and 2nd October 2024. The respondent has opposed the petition by a Replying Affidavits sworn on 15th August 2024 by its Senior HR Officer Mr.Peter Mulele. Thereafter, the petition was canvassed by written submissions.Facts of the case

3. The petitioner was employed by the respondent in July 2012 as the Regional ICT Officer Job Grade 6 for Wajir/Mandera but in 2014, he was re-designated as the County ICT Officer for Wajir County.

4. In February 2022, while conducting normal routine, back stopping and monitoring of Enhanced Voter Registration in Wajir South Constituency, he assisted in the registration of eligible voters together with the Voter Registration Clerk. The registration exercise went on smoothly, data uploaded by the Petitioner and Returning officer of Wajir South Constituency counter signed the same. However, the Deputy Returning Officer of the County registered a complaint with the Wajir County Election Manager contending that he never captured the additional voters registered by the petitioner.

5. The manager sought clarification from the Returning officer who in turn wrote an email dated 8th February 2022 to the petitioner for clarification on the matter. The petitioner responded on 9th February 2022 that the additional voters where people who had earlier been captured as refugees but were indeed Kenyans and had been issued with new IDs hence the overwhelming numbers of people in Wajir South Constituency ready for registration.

6. The Returning Officer gave the feed back to the County Election Manager on 10th February 2022 and on 13th February 2022 the petitioner was served with a letter from the Manager Mr.Adan Harar Noor requiring him to explain the circumstances in which he, unlawfully registered voters without authority. The petitioner responded on 19th February 2022 and the matter was conclusively resolved and the registered voters uploaded into the system.

7. The Petitioner was then transferred to Mandera and again on 22nd March 2022 he was transferred to Garissa County still as the County ICT Officer. To his surprise, he received a warning letter on 30th March 2022, dated 20th March 2022 signed by the County Election Manager Mr.Adan Noor, yet he had already been transferred to Mandera County as Election Manager.

8. The petitioner was even more surprised to receive a show cause letter dated 31st March 2022 from the Respondent in relation to the same issue of Voter Registration in Wajir South Constituency, yet the same had been resolved and a warning letter issued to him. He responded to the show cause letter on 6th April 2022 and on 6th July 2022 he received a suspension letter citing the offence as illegal transfer and irregular voter’s registration using unsuspecting staff credentials.

9. On 8th January 2023, the petitioner was invited to a disciplinary hearing in Nairobi and he attended. The petitioner contended that the hearing lasted for 15 minutes and he was not given any chance to defend himself since the disciplinary committee had already made a decision. He also learned of the hearing by phone call on the same date of the hearing since the notice had been served through his official email which had been deactivated while on his suspension.

10. On 20th January 2023, the petitioner was served with a letter dated 19th January 2023 reducing his rank from grade 6 to 7. The petitioner contended that he was heard by the Commission Disciplinary Committee (CDC) instead of HR Management Advisory Committee (HRMAC) which is responsible for disciplinary matters of staff in Job Grade 5 and below. In that regard, it was contended that the CDC acted ultra-vires and it was also without proper quorum. Further, the decision was communicated to him after the term of the commissioners had lapsed on 17th January 2023.

11. According to the petitioner, the disciplinary process violated Article 47, 50 and 236 of the Constitution which protects the right to fair administrative action of public officers. It further violated the values and policies of Public Service under Article 232 of the Constitution, the IEBC Act, Fair Administrative Actions (FAA) Act and the Respondents’ HR & Administration Manual (Policies and Procedures) 2021 which prescribed that the disciplinary process for the petitioner was to be done by the HRMAC and not CDC. Finally, the petitioner averred that his appeal against his demotion has not yet been heard and determined.

12. The respondent’s case was that it received a report from County Election Manager, Wajir County vide a memo dated 28th March 2022 that the petitioner had been interfering with voter registration and transfer of voters updates in Wajir County specifically in Wajir South Constituency. The respondent carried out an audit of the Register of Voters through an external Auditor (KPMG) and the irregularities in the register were confirmed in a report that implicated the petitioner and 4 others persons.

13. The respondent further averred that the petitioner was taken through disciplinary process in accordance with the existing laws and a decision to demote him was made on 6th January 2023 after a disciplinary hearing on the same day. Subsequently, the secretariat implemented the decision vide the letter dated 19th January 2023. The decision was in line with section 12. 13 of the IEBC Human Resource and Administration Manual, 2020. Submissions

14. The petitioner submitted that the petition meets the legal threshold of a constitutional pleadings enunciated in Anarita Karimi Njeru v Republic (1979) eKLR. He submitted that the petition has pleaded the provisions of the constitution which were violated and set out the manner in which they were violated by the respondent.

15. He further submitted that his demotion was not done in accordance with fair procedure and as such it violated Article 236 of the Constitution which protects a public officer from removal from office, demotion in rank or other disciplinary action without due process of law.

16. He submitted that he was charged with the offence of unlawful transfer and irregular registration of voters and after being furnished with a warning letter, the matter was revived and it culminated with another sentence of demotion and warning. Further that, he was denied enough opportunity to prepare for the disciplinary hearing in accordance with the Constitution and the Employment Act.

17. He further submitted that the disciplinary committee was not properly constituted under clause 12. 4.1 of the HR Manual which the HRMAC is the organ with the mandate to deal with disciplinary matters for staff in Job Grade 5 and below. However, the petitioner’s case was heard by the Commission Disciplinary Committee (CDC) contrary to the HR Manual and the Constitution.

18. For emphasis, he cited Eliud Mumo Muema v IEBC (Petition E013 of 2023) (2023) KEELRC 2749 (KLR) where the court held that the petitioner ought to have been heard by HRMAC as opposed to the Commission Disciplinary Committee.

19. It was further submitted that the respondent was not properly constituted on 6th January 2023 and therefore it lacked the proper quorum to conduct business including the decision to demote him. He submitted that the term of one of the three remaining commissioners had lapsed as at the time of the said decision. He relied on Hansan Mugo Njoki v IEBC (2023) eKLR where the court held that the commission’s 284th plenary meeting held on 3rd and 6th January 2023 were ultra vires for want of quorum and due to exercise of the committee’s or commission discretion.

20. In view of the foregoing matters, the petitioner urged that he is entitled to the reliefs sought in the petition including the salary deducted from July 2022 to the date of the judgment.

21. The respondent submitted on the other hand that, the alleged violation of Article 41, 47, 50, 232 and 236 of the Constitution have not proved on a balance of probabilities. It submitted that after receiving allegations of interference with the process of voter registration and in particular voter transfer by the petitioner, it strictly followed due process as set out in its HR and Administration Manual, 2020 section 12. 1.3, 12. 11. 4 iii and 12. 11. 4. ix.

22. As regards hearing of the petitioner by the CDC as opposed to HRMAC, it was submitted that the same was occasioned by the gravity of the allegations against the petitioner which amounted to an election offences. It was further submitted that the petitioner’s right to hearing was upheld and the disciplinary hearing was conducted expeditiously, efficiently, lawfully, reasonably and in a procedurally fair manner.

23. It was submitted that the petitioner was served with a show cause letter and he responded. Thereafter, he was invited to a disciplinary hearing on 3rd January 2023 and he made his representations. Consequently, it was argued that the petitioner is out to mislead the court with allegations that he was denied a fair hearing.

24. As regards the reason for the disciplinary action taken against the petitioner, it was submitted that the offence by the petitioner amounted to gross misconduct. It submitted that the Investigations Report (Annex “PM002”) confirmed the offences by the petitioner.

25. It was further submitted that the respondent was properly quorated as at 6th January 2023 when the decision against the petitioner was made as the term of the three commissioners lapsed on 17th January 2023. The minutes of the meeting were produced as Annex “PM003” to prove that the decision was made on 6th January 2023 and implemented by the Chief Executive Officer by the letter dated 19th January 2023. Consequently, the court was urged to dismiss the petition with costs.Issues for determination

26. I have considered the pleadings, evidence and the submission filed by both sides. There is no dispute that the petitioner was demoted from job grade 6 to 7 by a decision made by the respondent’s Commission Disciplinary Committee (CDC) on 3rd January 2023 and affirmed by the commission during its 284th Plenary Meeting on 6th January 2023. The issues for determination are: -a.Whether the demotion was done after following the due process of law.b.Whether the disciplinary process violated the petitioner’s rights under Article 41, 47, 50 and 236 of the Constitution.c.Whether the petitioner is entitled to the reliefs soughtDue process of law

27. Article 236 of the Constitution of Kenya, 2010 provides that: -“236. A public officer shall not be –a.Victimized or discriminated against for having performed the functions of office in accordance with this Constitution or any other law, orb.Dismissed, removed from office, demoted in rank or otherwise subjected to disciplinary action without due process of law.”

28. The foregoing provision protects Public Officers from arbitrary removal from office, demotion or other forms of disciplinary action. In the instant case, the employer contended that there were serious allegations made against the petitioner which amounted to election offences. The said offences were described as serious and amounting to gross misconduct.

29. I have considered the evidence by both sides and especially the investigations report marked "PM002" in the Replying Affidavit. There is no doubt that the report implicated the petitioner for interfering with voter registration process in Wajir South Constituency. He never disputed the offence so much and instead faulted the procedure followed by the respondent. I see no need of belabouring the point.

30. Turning to the procedure followed, there is no dispute that the petitioner’s disciplinary case was supposed to be handled by the HRMAC under clause 12. 4.1 of the respondent’s HR Procedure Manual but it was handled by the Commission Disciplinary Committee (CDC). Clause 12. 4 provides that:12. 4.1The commission secretary shall constitute the Human Resources Management Advisory Committee and the Commission Secretary or the Deputy Commission secretary will be the chair. The committee shall comprise of five (5) to seven (7) Directors. The Director, Human Resource Management and Administration will be the secretary.12. 4.2The Human Resource Management Advisory Committee will, in addition to other responsibilities deliberate on disciplinary matters involving employees in IEBC Grade 5 (excluding CECs) and below.”

31. On the other hand, clause 12. 5 provides as follows: -12. 5.1The Commission Disciplinary Committee shall handle case involving officers in IEBC Grade 1 to 4 and 5 (CECs only).12. 5.3Membership to the Commission Disciplinary Committee shall comprise members of the Commission and the secretary shall be the Director, Human Resource and Administration.”

32. The petitioner was in Job Grade 6 and was demoted to job grade 7 by the CDC as opposed to the HRMAC. It follows that the respondent violated its own disciplinary process by allowing the CDC to usurp the powers reserved for the HRMAC. By so doing, the CDC acted ultra vires and denied the petitioner the right of appeal.

33. In view of the foregoing matters, I am satisfied that the petitioner has proved on a balance of probability that the decision to demote him was not in accordance with a fair procedure. It violated the petitioner’s right to Fair labour practices, Fair administrative action and right to fair hearing by breaching the express provisions of the HR Procedure Manual.

34. These rights to fair Labour practices, fair administrative action and fair hearing includes the right to be heard by a properly constituted decision maker and being notified of the charges and then accorded a fair opportunity to prepare and present ones defence. Failure by the employer to accord the said rights exposes any decision from the flawed process to judicial review. In Eliud Mumo Muema v IEBC, supra, Gakeri J held that:141. The Respondent’s Human Resource and Administration Manual, 2020 prescribes the division of disciplinary powers between the HRMAC and the Commission Disciplinary Committee (CDC).142. Clause 12. 4.2 of the Human Resource Manual is explicit that the HRMAC was responsible for disciplinary matters involving employees in IEBC Grade 5 (excluding CECs) and below.143. Clause 12. 5.1 on the other hand provides that the CDC “shall handle cases involving officers in IEBC Grade 1 to 4 and 5 (CECs only).146. Based on the Respondent’s Human Resource Manual, the court is in agreement with the petitioner’s assertion that this case ought to have been heard by the HRMAC as opposed to the Commission Disciplinary Committee.”

35. The effect of bypassing the express requirement of first hearing by the HRMAC was that the petitioner was denied the right of appeal. Denying an employee, a right of appeal provided by the law or internal regulations renders the disciplinary process flawed and open to judicial review. I gather support from the case of Kisumu County Public Service Board & others v Samuel Okuro & 7 others (2018) eKLR where the Court of Appeal held that: -“We have come to the conclusion that the Governor initiated the removal of the respondents without following the appropriate mechanism. The respondents being County Public Officers, the Governor could not terminate their services without involving the County Board and the County Assembly. In sending the respondents on compulsory leave and terminating the respondent’s contract, the Governor usurped the role of the County Board. This denied the respondent their rights under Section 77 of the County Government Act that allows any County Public Officer that is dissatisfied with the decision of the County Board in a disciplinary process to appeal to the Public Service Commission. Further, the respondents’ Constitutional fundamental rights were violated.”Reliefs

36. I have already made a finding of fact that the impugned decision was tainted with illegality and procedural impropriety which went as far as contravening the petitioner’s rights under Article 41, 47, 50 and 236 of the Constitution. Consequently, I now hold that the petitioner is entitled to a declaration that the disciplinary proceedings conducted by the respondent on 3rd January 2023 and the resultant decision of 6th January 2023, and communicated vide the letter dated 19th January 2023 was unconstitutional and in violation of petitioner’s rights under Article 41,47, 50 and 236 of the Constitution of Kenya and therefore null and void.

37. In view of the above, I further hold that the petitioner is entitled to reinstatement to the rank he held prior to the respondent’s letter dated 19th January 2023 and to payment of any salary withheld on the basis of the impugned decision which I have nullified.

38. Any other order sought and not specifically granted stands rejected.Conclusion and disposition

39. For the reasons set out above, I am satisfied that the petitioner has proved his case on a balance of probability and I hereby enter judgment for him as follows:a.Declaration be and is hereby made that the disciplinary proceedings conducted by the respondent on 3rd January 2023 and the resultant decision of 6th January 2023 and communicated vide the letter dated 19th January 2023 was unconstitutional and in violation of petitioner’s rights under Article 41,47, 50 and 236 of the Constitution of Kenya and therefore null and void.b.An Order of reinstatement be and hereby made directing the respondent to reinstate the petitioner to the rank he held prior to the respondent’s letter dated 19th January 2023, being County ICT Officer Job Grade 6, and to pay him all the salary withheld on the basis of the impugned demotion which stands nullified.c.The petitioner is awarded costs plus interest at court rate from the date of filing the suit.d.For avoidance of any doubt, this judgment does not shield the petitioner from any future disciplinary action done within the four corners of the law.

DATED, SIGNED AND DELIVERED AT NYERI THIS 19TH DAY OF DECEMBER, 2024. ONESMUS N MAKAUJUDGEOrderThis judgment has been delivered to the parties via Teams video conferencing with their consent, 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