[2024] KEELRC 991 (KLR)

Adera v Executive Director, Anti-Counterfeit Authority & 2 others (Petition E085 of 2020) [2024] KEELRC 991 (KLR) (12 April 2024) (Judgment)

Neutral citation: [2024] KEELRC 991 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Petition E085 of 2020

MA Onyango, DO Ogal & DO Ogal, JJ

April 12, 2024

Between

Johnson Otieno Adera

Petitioner

and

Executive Director, Anti-Counterfeit Authority

1st Respondent

Anti Counterfeit Authority Board of Directors

2nd Respondent

Anti-Counterfeit Authority

3rd Respondent

Judgment

1. The Petitioner was, at the time of filing the suit herein, the Deputy Director, Enforcement & Legal Services of the Respondent.

2. The 1st Respondent is the Chief Executive Officer of the 3rd Respondent vested with the day-to-day Management of the 3rd Respondent by the Anti Counterfeit Act, No. 13 of 2008 and was the supervisor of the Petitioner.

3. The 2nd Respondent is the Board of Directors of the 3rd Respondent established under section 10 of the Anti-Counterfeit Act, No. 13 of 2010. The 3rd Respondent is a body corporate established under section 3 of the Anti-Counterfeit Act, No. 13 of 2008 and capable of suing and being sued in its corporate name.

Petitioner’s Case 4. The Petitioner states that on the evening of 20th November 2020 at 17:17 he received a letter of interdiction which also doubled up as a notice to show cause dated 20th November 2020. The letter made reference to a Legal Compliance Audit Report dated 29th August 2020. The said letter stated that the decision to interdict the Petitioner and require him to show cause was made by the 2nd Respondent at its 71st full meeting held on 20th November 2020. According to the Petitioner, it is the 1st Respondent who was supposed to initiate the process as provided in the approved Human Resource Policies and Procedures Manual (herein after referred to as the Manual) of the 3rd Respondent.

5. The Petitioner avers that the power and jurisdiction to interdict and to issue a notice to show cause are vested in the 1st Respondent and not the 2nd Respondent and consequently the impugned letter and decision are illegal, irregular, and unreasonable and made without jurisdiction and power.

6. The Petitioner avers that by deliberately failing to issue the same letter to 2 other heads of departments which were named in the Legal Compliance Audit Report the Respondents violated the Petitioner’s rights under Article 27, 41 and 47 of the Constitution. He further avers that there were no investigations undertaken and that purporting to interdict him for an indefinite period was in breach of the 3RD Respondent’s Manual, the Constitution and applicable government policies. That the Respondents acted illegally, unfairly and unreasonably in purporting to issue the letter of 20th November 2020.

7. The Petitioner prays for the following reliefs:a.A declaration that the letter dated 20th November 2020 is irregular, procedurally unfair, illegal, unreasonable, unconstitutional and therefore null and void ab initio.b.A judicial review order by way of certiorari does issue to quash the Respondents’ letter dated 20th November 2020 and any other proceedings arising therefrom.c.A judicial review order by way of prohibition restraining the Respondents from in any way purporting to subject the Petitioner to disciplinary action or any adverse inquiry based on the legal compliance audit report dated 29th July 2020. d.A judicial review order by way of mandamus compelling the 1st Respondent to expunge the physical letter dated 20th November 2020- from the personal personnel file of the Petitioner within 5 days of the order of this court and make a report thereof to court under oath.e.General, exemplary and punitive damages for unfair treatment, harassment and discrimination and violation of constitutional rights.f.Costs of the Petition.

Respondent’s Case 8. Vide the 1st Respondent’s Replying Affidavit sworn by Dr. Robi Mbugua Njoroge on 27th September, 2022, on behalf of the Respondents, they state that the Authority’s organogram stipulates that officers in Job Grades ACA 1-4 are appointees of the Board of Directors and the Board has the mandate to appoint and discipline them. That the Petitioner’s position is in Grade ACA 2 as provided in section 10. 38(ii) of the Manual.

9. With respect to interdiction, it is deposed that the same is provided for under section 10. 34 and is to be applied on serious disciplinary cases involving breach of the rules and regulations that require investigations to establish the fact(s). That the interdiction is to be done by the Executive Director (ED) pending determination of the case and is not to exceed six months.

10. That the Petitioner being an appointee of the Board and who can only be disciplined by the Board, the correct disciplinary procedure is that the show cause letter and/or interdiction may only be issued by the Board through the ED as happened in the Petitioner’s case. That all communication on matters touching on the authority are made through the ED as provided under section 14. 2.6 of the Manual. The Respondent states that the Petitioner’s allegation that it is the 1st Respondent who has the power to issue show cause letters and to interdict him lacks basis under the Authority’s Human Resource Manual, Mwongozo and labour laws. That the Petitioner is applying the manual in a narrow and selfish manner to defeat objectives thereof.

11. The 1st Respondent states that where the interdiction letter was silent on the period of interdiction, the fall-back position was the contract which provided that the maximum period for interdiction was 6 months. That the Petitioner responded to the show cause notice.

12. The Respondents aver that upon receipt of the Petitioner’s response to the show cause notice, the Board of Directors constituted a disciplinary hearing on 18th January, 2021. The Petitioner was accorded an opportunity to be represented by a person of his choice and to adduce documentary evidence. The 1st Respondent states that the Board of Directors as the appointing authority and with powers to discipline the petitioner is master of its own procedure provided that fairness is achieved. That the Petitioner has not demonstrated any prejudice and/or unfairness he has suffered in having the letter dated 20th November, 2020 couched as show cause/interdiction.

13. The 1st Respondent states that the court does not have jurisdiction to entertain the present petition since the petitioner’s contracts of employment does not have statutory underpinning as to render a breach thereof actionable by way of a constitutional petition rather than by way of an ordinary suit.

14. The affiant further deposes that the Petitioner has not demonstrated how his fundamental rights and freedoms under the Constitution have been violated or threatened and has not produced any evidence to prove the alleged violations contrary to the principles espoused in the case of Mumo Matemu versus Trusted Society of Human Rights Alliance (2013) EKLR and Annarita Karimi Njeru (1979) KLR 154.

Petitioner’s Supplementary Affidavit 15. The Petitioner filed a supplementary affidavit in which he states that the letter dated the 20th November 2020 does not accord with the 3rd Respondent’s Manual. That the coupling of the interdiction and the notice to show cause is apposite what the Manual provides. That the two should have been separate. That the interdiction letter must therefore comport with the 3rd Respondent’s Manual. That any derogation from these places the letter in the uncomfortable arena of being ultra vires the framework of discipline by the 3rd Respondent.

16. The Petitioner also states that the 1st Respondent is being insincere in his replying affidavit of 27th September 2022 in alleging that the Petitioner responded to the notice to show cause and therefore should go through the entire disciplinary process. The 1st Respondent failed to disclose to the court that he was very express and emphatic that the process was, inter alia, illegal. That the decision of 20th November 2020 was clearly improper.

17. The Petitioner urges the court to reconsider and withdraw the impugned letter to avoid the inevitable situation where the court will have to make a decision on the legality, regularity, reasonableness and procedural fairness of the decision as contained in the said letter.

Petitioner’s Written Submissions 18. The Petitioner submits that it was expected that the decision to interdict would be made objectively, substantively, independently and procedurally by the 1st Respondent without any coercion or duress or force or influence by the 2nd Respondent. That in the instant case the decision was made by the 2nd Respondent and the 1st Respondent acted merely as a tool to convey the decision which is illegal, procedurally unfair, unreasonable and irregular.

19. The Petitioner cited the case of Fredrick Saundu Amolo v Principal Namanga Mixed Day Secondary School and 2 others where it was held that before an interdiction can be found to be valid, the same must be based on fair reasons and must be implemented pursuant to fair procedure. Secondly, that there is some objectively justifiable reason to deny the employee access to the workplace based on the integrity of any pending investigations into the alleged misconduct, or some relevant factor that would place the investigations or the interests of the affected party in jeopardy, and that the employee is given an opportunity to state his case.

20. The Petitioner further relied on the case of Hon. Simon Rotich Ruto v Judicial Service Commission and Chief Registrar of the Judiciary

21. The Petitioner also contends that the Legal Compliance Audit Report dated 29th July 2020 can never be the basis of Disciplinary action against him or any other officer of ACA as it had no specific recommendation against the Petitioner. That it will be unjust for the Petitioner to be subjected to an illegal process. The Petitioner argues that the Respondents have no power or authority to purport to vary or alter the recommendations contained in the Legal Compliance Audit Report with their own views. That such action is illegal and ultra vires and therefore null and void only to be quashed.

22. The Petitioner has to this end relied on the Court of Appeal decision in Civil Appeal No. 196 of 2015, Teachers Service Commission v Kenya National Union of Teachers and 3 others where it was held that no enforceable right arises and accrues from an ultra vires action. The Petitioner submits that the Respondents having acted ultra vires and therefore illegally in devising their own recommendations that are not contained in the Legal Compliance Audit Report dated 29th July 2020 the same is illegal, contrary to legitimate expectation of the Petitioner to a legal process as envisaged under Article 47 of the Constitution and therefore liable to be quashed.

23. As to whether the Petition meets the threshold set out in the Anarita Karimi Njeru case, the Petitioner argues that the Petitioner has at the very least, pleaded that the impugned letter dated 20th November 2020 violates the Petitioner’s right to procedural fairness under Article 47 of the Constitution. That the Petition has also set out with precision the provisions or Articles of the Constitution alleged to be violated or threatened with violation and the manner in which they are alleged to be infringed or threatened with infringement by setting out with reasonable precision the particulars of infringement. The Petitioner also cited the case of Mumo Matemu v Trusted Society for Human Rights Civil Appeal No 290 of 2012 for the proposition that all that is required to meet the threshold is to set out the particulars of the allegations and the manner of the alleged infringements.

24. The Petitioner contends that in issuing the letter dated 20th November 2020 the Respondents violated the Petitioner’s constitutional rights guaranteed under Article 27 against discrimination, equality and equal benefit under the law as the Respondents did not issue the same letter to two other heads of departments when indeed the Legal Compliance Audit Report covered the entire institution of the 3rd Respondent, that all departments were audited and a report was made that touched all the departments.

25. It is also urged that the Petitioner’s right to inherent dignity under Article 57, 58 & 59 was violated by among other acts, constant harassment and humiliation. The Petitioner made reference to how even before the Legal Compliance Audit Report was prepared, the Respondents had connived to obtain a draft copy which was discussed with a view to scandalizing, harassing and humiliating the Petitioner.

26. For emphasis the Petitioner cited the case of Anthony Kipkorir Sang v The Attorney General Industrial Cause No 2408 of 2012 where the court held that-‘I agree with the holding in Petition No. 93 of 2012, Paul Anupa et al versus the Attorney General et al held that employment is not just a source of livelihood but something that defines our self-worth or dignity. The court made reference In Foley versus Interactive Data Corp (1988) Cal. Rptr. 211 where it was held that ‘A man or woman does not usually enter into employment solely for the money; a job is a status, reputation, way of defining one’s self worth and worth in community. It is also essential to financial security, offering assurance of future income needed to repay present debts and meet future obligations. Without a secure job, a worker frequently cannot obtain a retirement pension, and often lacks access to affordable medical insurance. In short, ‘in a modern economy employment is central to one’s existence and dignity and this sentiment is consistent with the right to dignity guaranteed by Article 28.

27. The Petitioner also argues that the decision contained in the letter dated 20th November 2020 is illegal and unconstitutional for violating or threatening to violate the Petitioner’s guaranteed rights under Articles 41 of the Constitution as the Petitioner was required to respond to matters that fall outside the Petitioner’s job description and responsibility which amounts to unfair labour practice.

28. The Petitioner submits that to the extent that the interdiction period is not stated, the same is illegal, ultra vires, unreasonable and procedurally unfair. The Petitioner further argues that the coupling of the interdiction and the notice to show cause is apposite what the Policies and Procedure Manuals provides. That it was inappropriate to interdict the Petitioner and issue the Petitioner with a Notice to Show Cause at the same time. That this is an incurable impropriety that violates the Petitioner’s rights under Article 47 of the Constitution.

29. The Petitioner submits that the decision as communicated in the letter dated 20th November 2020 is tainted with illegalities, actuated by malice, bias, procedural unfairness, is prejudicial, is bereft of any justifiable reason, was made without authority or jurisdiction.

Respondents’ Written Submissions 30. The Respondents submitted that this Honourable Court lacks jurisdiction to entertain an employment claim formulated in terms of a petition under Article 41 of the Constitution. That the Petitioner’s cause of action is purely contractual as between employer and employee. That the right to fair labour practices has been given effect by the provisions of sections 41 to 49 of the Employment Act and a litigant cannot bypass the Employment Act and seek to establish a cause of action under Article 41 of the Constitution unless the cause of action is based on challenging the constitutionality of sections 41 to 49 of the Employment Act.

31. The Respondents relied on the decision in Barbara De Klerk v Cape Union Mart International (PTY) Ltd Case No. C 620/2011(2012) ZALCCT22, a decision of the Labour Court of South Africa, Cape Town where a claim for unlawful dismissal was based on a provision of Labour Relations Act (LRA), South Africa and section 23 of the Constitution which provides that everyone has a right to fair labour practices. A preliminary objection was raised to the suit on the grounds that a claimant could not rely directly on the Constitution without challenging the Labour Relations Act which had been enacted to give effect to the right of fair labour practices. The decision was upheld by the court holding that the applicant had not challenged the constitutionality of the LRA in her statement of claim and lacked the particularity to sustain a cause of action as pleaded.

32. The Respondents also relied on the decision in Uhuru Muigai Kenyatta v Nairobi Star Publications Limited (2013) where Lenaola J. as he then was, cited a decision of the Court in Trinidad and Tobago which held that the Constitution is not a general substitute for the normal procedures of invoking judicial control of administrative action. That where infringements of rights can found a claim under substantive law, the proper course is to bring the claim under that law and not under the constitution. That the Petition is an abuse the power of the Court by elevating a grievance through constitutional petition while the nature of the complaint is an ordinary employment contractual grievance.

33. The Respondents further relied on the case of Anarita Karimi Njeru v Republic (No. 1) (1979) 1 and Mumo Matemu v Trusted Society of Human Rights Alliance, Civil Appeal No. 290 of 2012 (2013) to argue that it is now a well-developed principle that in constitutional litigation, a party that alleges violation of his or her rights must plead with reasonable precision the manner in which the violation has been committed and the Articles of the constitution which the Petitioner relies on must be precisely enumerated and the claim pleaded to demonstrate such violations in a precise manner.

34. The Respondents submitted that it is clear from sections 2. 11. 3 of the Manual that the Petitioner is an appointee of the Board of Directors and it is therefore the Board of Directors which has the purview to discipline staff in grades ACA 1 – ACA 4 in accordance with section 10. 38(ii) and (iii) of the Manual which states that discipline of staff in grades ACA 1-ACA 4 shall fall under the purview of the Board.

35. The Respondent has further cited the case of Kenyatta Maita Mwawashe v Plan International Kenya (2017) eKLR which cited with approval, Industrial Court of Kenya at Nairobi, Cause Number 746 of 2009 which cited Kenya Union of Journalist v The Standard Group Limited where the Court held that Human Resource Manuals are not in themselves contracts of employment but are aspects of human resource management, which are generated by senior management. To be considered terms and conditions of employment, they must be adopted as part of the employment contract. Adoption means they are received, acknowledged, read, understood and signed by the employee.

36. The Respondents relied on the decision in Geofrey Mworia v Water Resources Management Authority & 2 others Constitutional Petition No. 4 of 2015 eKLR where it was held that the court will very sparingly interfere with the employer’s entitlement to perform any of the human resource functions such as recruitment, appointment, promotion, transfer, disciplinary control, redundancy, or any other human resource functions. That for the court to interfere the applicant must show that the employer is proceeding in a manner that is in contravention of the provision of the constitution or legislation; or in breach of the agreement between the parties; or in a manner that is manifestly unfair in the circumstances of the case; or the internal dispute procedure must have been exhausted or the employer is proceeding in a manner that makes it impossible to deal with the breach through the employer’s internal process.

37. As to whether the Petitioner has satisfied the threshold to warrant judicial review orders sought, the Respondents referred to the case of Cabinet Secretary of East Africa Community and Regional Development where the court observed that the decision of the Respondent was regular and the considerations made in declining the ex parte applicant’s re-appointment were not unreasonable neither were they irrelevant. That having found that the decision of the Respondent was lawful, the applicant was not entitled to the orders of judicial review sought as he had failed to establish that the Respondent misconceived the nature of the discretion conferred upon him or took into account irrelevant considerations or ignored the relevant ones. Further, that the Applicant did not establish that the Respondent’s decision was so grossly unreasonable as to warrant the inference sought or that he had failed to apply his mind to the matter.

Analysis and Determination 38. The issues for determination are whether the petition is properly before this court, whether the letter of interdiction/notice to show cause is irregular and if the court can intervene at this stage of the disciplinary proceedings, and finally, whether the petitioner is entitled to the reliefs sought in his petition.

39. On the first issue it is the Respondent’s position that this petition has been filed prematurely, that the Petitioner has not met the threshold for filing a petition and that this is a matter that should have been filed as an ordinary suit rather than a petition. The Petitioner however insists that his constitutional rights under Article 27 and 47 have been breached by the Respondents and that he has been discriminated hence he meets the threshold for a constitutional petition as enunciated in Anarita Karimi Njeru (supra) and Mumo Matemu (Supra). In both decisions the court emphasized the need for precision on the constitutional violations and a demonstration of the acts constituting the violation.

40. It is my view that the Petitioner has demonstrated with reasonable precision, supported by what in his view constitute the acts of violation, that his rights under Articles 27, 28, 41 and 47 have been violated or threatened by the Respondents. Although it is debatable whether the acts the Petitioner complains of are purely constitutional or statutory violations, there is no doubt that he has stated with precision, what in his opinion are the provisions that have been violated and the manner in which the violations have been committed.

41. It is my view that a more fundamental issue is whether such violations can be redressed otherwise than through a constitutional petition. Mativo J. while dealing with a similar issue in the case of Hakiziman Abdoul Abdulkarim v Arrow Motors EA Ltd & Another (2017) eKLR had this to say:“A constitutional question is an issue whose resolution requires the interpretation of a constitution rather than that of a statute.”

42. He cited with approval the holding in the South African case of Fredricks & Others v MEC for Education & Training, Eastern Cape & Others (200) 23 (LJ.81) where the court held:“The constitution provides no definition of constitutional matter. What is constitutional matter must be gleamed from reading of the constitution itself……. constitutional mattes must include disputes as to whether any law or conduct is inconsistent with constitution.”

43. Often times, it is difficult to draw a line between what is constitutional and what is not. This depends largely on how the issues are framed, as was stated by the Supreme Court in Bia Tosha Distributors Limited v Kenya Breweries Limited in Petition No. 15 OF 2020 when the Court stated:It is worthy of note that the way the dispute is prosecuted through litigation and the surrounding issues determine whether indeed it qualifies to be considered as a constitutional question or not. It is readily determinable for some of them and almost improbable to distinguish constitutional and other underlying issues in others. It is therefore best left to the court on a case to case basis upon critically evaluating the facts, evidence and arguments before it. There will be a level of factual contestations that will inform the court’s determination even at an interim stage to determine whether or not the court should exercise its discretion in favour of the applicant seeking conservatory orders.

44. In the instant case, as I have stated above, I am satisfied that the Petitioner has demonstrated with some degree of precision that he has justifiable reason to believe that his constitutional rights have been or are likely to be infringed by the actions of the Respondents. I hasten to add that at this stage the court need not agree with him on whether the acts complained of and the provisions of the constitution cited really constitute the wrongs that he alleges. All the court has to establish is that he has justification, based on his beliefs as demonstrated in his pleadings, that he has a constitutional issue that he can present to the court by way of a constitutional petition.

45. The second issue for determination is whether the letter of interdiction/notice to show cause is irregular and if the court should intervene in the disciplinary process. It is the petitioner’s argument that the letter dated 20th November, 2020 is prima facie illegal, unlawful, irregular, procedurally unfair, unreasonable, bereft of justifiable reason and made without the requisite authority. The Respondents on the other hand insist that the 3rd Respondent has authority to discipline its staff and that it complied with the provisions of its Manual, Mwongozo and labour laws. The Respondents accuse the Petitioner of applying the manual selectively in a narrow and selfish manner to defeat the objective thereof.

46. The Petitioner and the Respondents referred the court to the following sections of the Manual which in their opinion are relevant for purposes of this suit:1. 2Objectives1. 21The general objective of this Manuals to summarize Human Capital Management policies, procedures, regulations and other administrative processes to facilitate those responsible for managing the Agency use one common reference document on all human resource related matters.1. 22The specific objectives of this Manual are to ensure: -i.Adherence to the Constitution and other government guidelines.ii.Support from employees, stakeholders, the Government, the public and the development partners.iii.The staff policies, organizational structure and individual roles operate in an integrated manner so that ACA objectives are met in a timely and cost effective manner.iv.Adherence to various professional etiquettes public expectation of a work environment of zero tolerance to corruptionv.A common understanding by ACA employees of stipulated standards and procedures in monitoring their performance for continued improvement.2. 11Appointments y the Board2. 11. 1The ED shall be appointed by the Board through an open, competitive, fair and merit based process. While making the appointment, the Board shall adhere to national values and principles of Governance and the values and principles of public service as set out in the constitution2. 11 .2The ED shall be appointed on contract terms in accordance with Regulation 2. 5 of this Manual. 211. 3Appointments to positions in ACA 1 to ACA 4 shall be made by the Board in accordance with the approved procedures The power to appoint from positions in ACA 5 to ACA I l is delegated to management.

2. 11. 4The Board may enlist the services of a relevant independent professional body to conduct the recruitment exercise, if considered necessary.2. 11. 3Appointments to positions in ACA 1 to ACA 4 shall be made by the Board in accordance with the approved procedures The power to appoint from positions in ACA 5 to ACA I l is delegated to management.2. 11. 4The Board may enlist the services of a relevant independent professional body to conduct the recruitment exercise, if considered necessary.10. 32Disciplinary Procedure10. 32. 1Counseling(i)This should be the first step in a disciplinary procedure. An employee who has committed minor disciplinary case should be counselled. The supervisor should—discuss the matter with the employee and advise the employee to reform(ii)If the employee repeats same o another offence of similar nature, the formal disciplinary procedure should be invoked.10. 32. 2Verbal warningi.The immediate supervisor will issue a verbal warning in respect of the first instance of minor offence.ii.The supervisor will note any verbal warning in his diary for future reference.10. 32. 3Written Warningi.Where an employee has been cautioned verbally by the supervisor and continues to commit the offence, a first warning letter will be issued. The employee will be required to signify in writing that he has read and understood the contents of the letter.ii.A warning letter shall be in force for six (6) months.iii.A second written warning shall be given to an employee who having committed a minor offence earlier, hall repeat a similar offence during the period when 1st warning shall still be in force.iv.A third written and final warning shall be issued hen the employee commits the same or another offence of similar severity, during the period when a second warning shall still be in force.v.The warning will be deemed invalid after six from the date of the third and final warning and following satisfactory improvement in performance or behaviour, but will not be removed from the employee's file.vi.If the offence is repeated or the failure not corrected or should the employee commit an offence of similar severity even after receiving the third and final warning letter he/she shall be issued with a notice to show cause letter and shall have a right to respond within seven (7) days.vii.In certain cases, the misconduct might be serious enough to satisfy dismissal without any warning.10. 32. 4Show Cause Letteri.The formal disciplinary procedure starts with a "show cause letter". The employee will be informed in writing by the supervisor of the nature of the complaint or allegation. The employee will be required to submit his response within at least seven days.ii.Where an employee deserts duty or his whereabouts are unknown, the show cause letter will be addressed to the employee's last known contact address by registered mail and he will be given at least seven days to respond.iii.Where the supervisor is satisfied with the response, the matter is deemed as closed.iv.Where the supervisor is not satisfied the response, a report on the same shall be made to the ED with appropriate recommendations on disciplinary action.10. 33Disciplinary Hearingi.Upon receipt of the supervisor’s report and recommendations, the ED shall (in the case of employees in the positions of ACA 5 to ACA 11) appoint an Ad hoc disciplinary committee that shall consider the matter and make recommendations to the Human Resource Advisory Committee, which shall then review and make recommendations to the ED. For employees in positions ACA 2 to ACA 4, the ED shall refer the matter to the Board10. 34Interdictioni.Interdiction is a procedure applied on serious disciplinary cases that require investigations involving any breach of the rules and regulations in order to allow establishment of fact(s) of the case.ii.The employee shall be interdicted from exercise of his duties by the ED pending determination of the case.iii.This formal disciplinary punishment will be applied to major disciplinary offences. An employee who is on interdiction will be paid not less than 50% of his basic monthly salary less any statutory deductions. During this period the employee will continue to receive house allowance, commuter allowance and medical benefits at full10. 38Disciplinary Powers and Appeali.The ED will handle and determine disciplinary matters of staff in grade ACA 5 to ACA 10. Appeals from these cases shall lie with theii.The discipline of staff in Grades ACAM ACA shall fall under the purview of the Board.iii.All appeals on disciplinary matters falling under the purview of the shall lie to the Public Service Commission (PSC) or as otherwise delegated.iv.Any such appeal (to the ED or Board or Public Service Commission) shall be in writing within six (6) weeks from the date of the letter conveying the disciplinary decision. 47. From Regulation 2. 11. 2 and 2. 11. 3 of the manual it is clear that appointments to positions in job grades ACA 1 to ACA 4 are vested in the Board. According to the Career Progression Guidelines for Staff of the Respondent, the Claimant being the Manager, Legal Services, is in job grade ACA 3. His appointment is therefore by the Board by virtue of section 2. 11. 3 of the Manual. By virtue of the same provisions, any disciplinary action against him can only be by the Board. The ED therefore properly executed the decision of the Board by signing the interdiction/show cause letter on behalf of the Board.

48. I thus find that the letter of interdiction/show cause was properly issued by the Board as the Petitioner is an appointee of the Board.

49. The next issue for determination is whether the issuance of the same letter to serve as both an interdiction and a notice to show cause was procedurally irregular.

50. Show cause is provided for in section 10. 32. 4 of the Manual while interdiction is provided for at section 10. 34 of the Manual. Both sections have been reproduced above. A reading of the sections gives the inescapable conclusion that interdiction and show cause cannot be issued together and/or in the same letter.

51. Section 10. 32. 4(i) starts with the words: The formal disciplinary procedure starts with a “show cause letter”. The section provides that the employee will be required to submit his response to the show cause letter before a decision is made if further disciplinary action is necessary. The response to the show cause letter must therefore be received before a decision can be made to interdict as the explanation in the show cause letter determines the next course of action. This position is confirmed by section 10. 32. 4(iii) which states: Where the supervisor is satisfied with the response, (in the response to the show cause letter) the matter is deemed as closed.

52. Section 10’32. 4(iv) states what action the supervisor takes where the response from the employee is not satisfactory. The supervisor is required to make a report with appropriate recommendations on disciplinary action.

53. From the foregoing I find that the Respondents failed to give the Petitioner an opportunity to first respond to the allegations against him through a response to the show cause letter, before a determination is made whether or not to commence disciplinary action against him, which would be based on whether or not he absolved himself in the response to the show cause letter. By combining the show cause letter with the interdiction the Respondents gave the impression that even before the Petitioner was given an opportunity to respond to the allegations against him there was already a determination that he had no satisfactory explanation to the charges against him and therefore he should be interdicted and subjected to a disciplinary hearing. The Petitioner was therefore justifiably apprehensive of the existence of bias against him.

54. The Petitioner further raised the issue about the other departmental heads named in the Report but not issued with interdiction/show cause letters. The Petitioner did not indicate who the other heads of departments are or which departments he was referring to. The parties did not address the issue in their written submissions. I am therefore unable to determine, based on the evidence presented before me, whether the petitioner was discriminately picked out for discipline while other heads of departments mentioned in the report were spared.

55. The other issue raised by the Petitioner is that the Legal Compliance Audit Report does not constitute a complaint or allegation against him, and neither did it recommend any disciplinary or administrative action against him or indeed any other officer of the Respondent. The Respondents did not address this issue in either their reply to the petition or in the submissions.

56. I have read the Audit Report. The objective of the report is captured in the Forward thereof which I reproduce below:ForwardThis audit was done pursuant to Articles 10 and 156 of the Constitution, 2010 and Paragraphs 1. 53 and Chapter 8 of the Mwongozo Code of Conduct, 2015. The Audit was undertaken following a request to the Attorney-General by the Executive Director, Anti-Counterfeit Authority vide a dated the 10th November, 2017. The Audit exercise was commenced on the 13th February, 2019 following the inception meeting with the audit team from the Office of the Attorney-General and agreement on the Terms of Reference and the framework to guide the conduct of the exercise. The objective of the audit was to establish the level of adherence to applicable laws, rules, regulations and standards by the Authority in implementing its core strategic functions.In undertaking the exercise, the office adopted a participatory approach which guaranteed adherence to the constitutional requirement of fair hearing. The audit has established instances of non-adherence to government policies, laws and regulations with regard to the processes of executing the strategic functions of the Authority, the net effect of which is to expose the Authority to possibilities of legal liability. The findings are attributable to a number of factors including: capacity challenges within the Authority, information asymmetry with key stakeholders and officers within the Authority, un-coordinated performance of the functions of the Authority, and the lack of systems to facilitate the functions of the Authority.It is imperative that the Board and the management prioritize the implementation of this report in order to enhance efficiency and effectiveness in executing the strategic functions of the authority.SignedKennedy Ogeto CBSSOLICITOR-GENERAL

57. I agree with the Petitioner that the objective of the report was not to assign liability against any officer of the 3rd Respondent but to establish the level of adherence to applicable laws, rules, regulations and standards by the 3rd Respondent in implementing its core strategic functions.

58. The recommendations in respect of the legal services which the Petitioner was responsible for are summarized in the Audit Report at page (vi) as follows: 29. The Legal Department is understaffed considering the volume of legal work handled yearly and the job description of each Counsel. There are only three (3) active prosecutors against a workload of about ninety (90) active criminal cases pending in the FY 2019/2020;

30. Legal issues at strategic regional stations are handled by legal officers who are employed at the entry-level grade and are still serving their probation period. This has the potential to compromise the quality of legal services for want of adequate qualification and experience;

31. Only two legal counsel are gazetted to handle criminal cases on behalf of the ODPP against a workload of 90 active criminal cases pending in the FY 2019/2020;

32. The Executive Director should follow up on the pending request to the ODPP (letter referenced ACA/ENF/C/1VOL.5/ (31) dated 5th April, 2019) to have the following officers gazetted at the earliest: Lorna Khamusa Miima, Jane Karwitha Mugambi, Valerie Jerotich Kasaiyian, Manwa Lucas Ongeri, Aluvsia Mary Kihamba, and Gitere Susan Nyawira;

33. The Authority does not have a Corporation Secretary contrary to rule 1,21 of the Code of Governance for State Corporations (Mwongozo), January 2015;

34. The Legal Services division is fused with enforcement services under the head of a Deputy Director thereby compromising the principle of separation of powers and functions between enforcement, investigations and prosecutions. This further negates the objectivity in reporting and independent advisory to the Authority; and

35. The Authority still rely on non-lawyers serving as inspectors to prosecute criminal cases contrary to Article 157 of the Constitution and the current policy to phase out lay prosecutors.

36. The recommendations running through the entire Legal Compliance Audit Report need for is the strengthening of the capacity of the various departments including prosecution, civil litigation and contracts management. The main recommendations is on the legal capacity of the 3rd Respondent where the report recommends the following:Recommendations6. 19 The Authority should seek for exemption from the National Treasury and Public Service Commission in order to recruit more legal officers in line with the approved staff establishment.6. 20 The Board should revise its staff establishment in order to allow legal officers to be posted in regional offices.6. 21 The Board and the Executive Director of the Authority should consider posting senior legal officers to man Legal Departments at the regional stations.6. 22 The Board should consider revising its staff establishment to incorporate the position of Corporation Secretary and further consider appointing a Corporation Secretary in order to provide guidance to the Board on their duties and responsibilities and on matters of governance.6. 23 The Board should consider revising the organization structure to separate enforcement functions from legal services functions.6. 24 The Authority should put in place a scheme of phasing out lay prosecutors by having an embargo on gazetting more lay officers and training those already prosecuting on behalf of the authority to acquire law degrees

59. From the recommendations it is clear that the duty bearer is the 3rd Respondent and not the Petitioner. The report does not disclose any grounds for disciplining the Petitioner. If anything, the Report exonerates the Petitioner as the problems identified are systemic and cannot be attributed to the Petitioner or any single officer of the 3rd Respondent. I therefore agree with the Petitioner that there was no complaint, allegation or recommendation in the Legal Audit Compliance Report that would justify taking disciplinary action against him singularly.

60. The next issue for determination is the Respondents submission that courts lack jurisdiction to micro manage the Respondent’s Human Resource function. The Respondents cited and relied on the decision of the Court of Appeal in Judicial Service Commission v Gladys Boss Shollei where the court stated:‘It is worth noting that courts ought to be slow to make determinations that are on the face of them, unrealistic and bordering on the cynical. Courts do intervene in employer employee disputes but even as they do so, they must appreciate that the work-place must be allowed and enabled to operate in a manner that is productive and harmonious. Courts cannot micro-manage the human resource function of other institutions be they in the public or in the private sector. It is thus clear to me that a judge oversteps his mandate when he fails to give due and grave consideration to the intractable difficulty an employer faces when faced with insubordination which is really a form of headstrong defiance and open rebellion to lawful authority. In such instances, the act of firing the employee properly taken should not invite the courts' quashing power by way of certiorari as happened herein.”

61. It is noteworthy that this decision has since been overturned by the Supreme Court in a judgment delivered on 17th February 2022.

62. The Respondents further cited and relied on the decision in the cases of Teachers’ service Commission v Thomas Joseph Onyango; Alfred Nyungu Kimungui v Bomas of Kenya and Geoffrey Mworia v Water Resources Management Authority & 2 Others.

63. In Alfred Nyungu Kimungui v Bomas of Kenya the court was dealing with an interim application and in my view the observations of the court are distinguishable from the instant petition where the parties have fully ventilated their issues. Further, in the instant petition the Petitioner has questioned the legality of taking disciplinary action against him at all. He is not only questioning the process but whether the Respondents are justified in taking disciplinary action against him in the first place.

64. In Geoffrey Mworia v Water Resources Management Authority & 2 Others the court observed:The court with very sparingly interfere in the employer's entitlement to perform any of the human resource functions such as recruitment. appointment. promotion. transfer. disciplinary control, redundancy, or any other human resource function. To interfere, the applicant must show that the employer is proceeding in a manner that is in contravention of the provision of the Constitution or legislation; or in breach of the agreement between the arties- or in a manner that is manifest unfair in the circumstances of the case; or the internal dispute procedure must have been exhausted or the employer is proceeding in a manner that makes it impossible to deal with the breach through the employer's internal process...

65. In Anne Wambui Kamuiru vs Kenya Airways Cause No. 1684/2015, the Court held as follows: - 32. There is a convergence in agreement that an employer who commences disciplinary proceedings must ensure due process, fair hearing and due regard to natural justice. The Courts on their part will not interfere with proper internal disciplinary processes unless the Court is satisfied that the process is marred with irregularities or it is stage managed towards dismissal.

33. The Court will interfere not to stop the process altogether but to put the correct process on course. This position was held in Industrial Cause No. 1789/2013 Rebecca Ann Maina & 2 Others vs. JKUAT where Hon. J. Ndolo made similar findings. See also Cause 324/2012 Aviation & Allied Workers Union vs. Kenya Airways Limited”.

66. And Fredrick Saundu Amolo (suing through the Executive Secretary KUPPET Kajiado County Branch) vs the Principal, Namanga Mixed Day Secondary School & Others, the court held:“25. In conclusion, I find that the Court can only intervene in an employer’s internal disciplinary proceedings until they have run their course, except in exceptional circumstances – that is where grave injustice might result or where justice might not by other means be attained. The hearing of the claimant’s has not run its course, but the procedure adopted with sanction before according him a fair chance to be heard in the presence of his Union or a fellow employee of his choice not accorded to him. This far the court will interference with the proceedings as by not so doing grave injustice will be occasioned to the Claimant. This is one such exceptional case and thus the Court directs as follows;

67. From the above cases it is clear that this issue has been the subject of several decisions of this court as well as the court of Appeal. The general rule is that courts will not interfere in the disciplinary process except in exceptional circumstance some of which have been identified in the said cases. Of course each case will be determined based on its own unique facts and circumstances. In the instant case it is my finding first, that the Respondents did not comply with the Manual in combining interdiction and notice to show cause as this denied the Petitioner the opportunity of responding to the charges against him before a decision could be made whether or not further disciplinary action was necessary. As I have already stated above, this gave the impression that a decision had already been made that the Petitioner should undergo the full disciplinary process even before he had been given an opportunity to show cause.

68. I have further held that the Legal Compliance Audit Report that was used as a basis to commence the disciplinary proceedings against the Petitioner did not recommend any disciplinary action against him and did not constitute a complaint upon which disciplinary proceedings could be anchored.

69. It is these circumstances that I find sufficiently exceptional to justify this court’s interference with the disciplinary proceedings against the Petitioner. In my view, should this court not interfere now, the Petitioner will be forced to go through disciplinary proceedings that are unfounded and appear to be intended to reach a result that has been predetermined.

70. The Respondent further raised the issue whether the Petitioner has met the threshold to warrant the judicial review orders sought. The petitioner sought a declaration that the letter dated 20th November 2020 is irregular, procedurally unfair, illegal, unreasonable, unconstitutional and therefore null and void ab initio; an order of certiorari to quash the letter and any proceedings arising therefrom, an order of prohibition restraining the Respondents from disciplining the him on the basis of the Legal Compliance Audit Report, an order of mandamus compelling the 1st Respondent to expunge the physical letter dated 20th November 2020 from the personal personnel file of the Petitioner, general, exemplary and punitive damages for unfair treatment, harassment, discrimination and violation of his constitutional rights.

71. As I have held above, I am persuaded that the Petitioner has demonstrated that he is entitled to file the Petition herein.

72. Taking into account the relationship between the Petitioner and the Respondents and further taking into account the findings I have made herein above, it is my view that the only orders necessary are an order terminating the disciplinary process commenced by the Respondents against the Petitioner by letter dated 20th November, 2020 and a refund of any salary or benefits withheld consequent upon the interdiction of the Petitioner. All other prayers are either unmerited or unnecessary.

73. The Respondent shall bear the Petitioner’s costs of this suit.Orders accordingly.

DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 12TH DAY OF APRIL 2024MAUREEN ONYANGOJUDGE