[2024] KEELRC 13520 (KLR)

Amara & another v Nairobi Water and Sewarage Co. Ltd; Ethics and Anti-Corruption Comm (Interested Party) (Employment and Labour Relations Petition E212 & E219 of 2023 (Consolidated)) [2024] KEELRC 13520 (KLR) (19 December 2024) (Judgment)

Neutral citation: [2024] KEELRC 13520 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Employment and Labour Relations Petition E212 & E219 of 2023 (Consolidated)

MN Nduma, J

December 19, 2024

Between

Liza Anyoso Amara

1st Petitioner

Vivian Khasandi Ayisi

2nd Petitioner

and

Nairobi Water And Sewarage Co. Ltd

Respondent

and

Ethics and Anti-Corruption Comm

Interested Party

Judgment

1. The Petitioner, Vivian Liza Anyoso Amara and Vivian Khasandi Ayi filed separate petitions E219 of 2023 and E212 of 2023. The Petitioners subsequently amended their petitions and same were consolidated as they raised similar issues against the same Respondent.

Facts of the petition Liza Anyoso Amara 2. The Petitioner was employed by the Respondent as a Data Clean up Officer (Grade 8) on 3/4/2013 and was on 10/9/2013 deployed to the Human Resource and Administration Section. The Petitioner was also appointed to the position of Acting Human Resource & Administration Supervisor and had served as such for a period of 3 years.

3. The Petitioner received a notice to show cause from the Respondent dated 30/5/2023 concerning her degree certificate from the University of Nairobi.

4. The Respondent alleged that it had received a report from the Academic Registrar of University of Nairobi that the Petitioner was not a bonafide student of University of Nairobi and the degree certificate held by the Petitioner was not a genuine document as it was forged.

5. The facts of the case indicate that a verification exercise of 169 degree certificates had been conducted following a request by the Public Service Commission dated 19/10/2022 for authorized officers in the public service to initiate the verification exercise.

6. The Petitioner responded to the notice to show cause vide a letter dated 15/8/2023 in which the Petitioner had denied that she had submitted a forged document and pleaded not guilty.

7. The Petitioner was on 24/8/2023 suspended from service pending further investigations and during the time the Petitioner was entitled to payment of house allowance and medical cover but not the basic salary.

8. The Petitioner alleges that the Respondent did not follow the laid down procedure therefore conducting the disciplinary process and violated its own Human Resource Procedure and Policy Manual.

9. The Petitioner further alleges that she had solely depended on her Human Resource qualifications and competency skills and at no time had she presented a Degree from the University of Nairobi to support her employment. The alleged Degree presented by the Respondent on Bachelor of Commerce had nothing to do with her employment and was not in line with the Petitioners profession and role as a Human Resource practitioner since the alleged docket had no human resource specifications.

10. The Petitioner cites violation of clause 8. 23. 2.1 of the Human Resource manual which provides in the case of gross misconduct, for the Director of Human Resource to recommend to the Managing Director to communicate to the corporate disciplinary committee and the union representative and the matter is then referred to the Security Department for appropriate investigation. That submissions to the corporate disciplinary committee for the disciplinary proceeding against an officer must be factual and complete and should be showing other things including a report from the Security Manager on the findings of the investigations.

11. That in the case of the Petitioner no investigations were conducted and no investigation report existed.

12. The Petitioner denied the charges in her response to the notice to show cause indicating that being a member of HRM No. 010808 she has never presented any other qualifications.

13. The Petitioner states that on 28/9/2023, she was summoned to a disciplinary hearing to be held on 12/10/2023 which she attended and reiterated the contents of her response to the notice to show cause.

14. That the Respondent failed to pay the Petitioner her August 2023 salary despite having worked the whole month and further subsequent months was only paid house allowance which occasioned the Petitioner great financial hardship.

15. That upon filing of the suit, on 7/12/2023, the court on 17/11/2023 directed that the Petitioner be paid her full salary and any outstanding amounts from the months of August to date pending hearing and determination of the petition.

16. The Respondent however, in a bid to circumvent the court process sent an email containing a back dated letter of summary dismissal dated 8/11/2023.

17. That the Petitioner is and remains a holder of a Diploma in Human Resource and Business Management which are minimal qualification required to hold the position held by the Petitioner. That no advantage has been conferred to the Petitioner on account of the alleged Degree.

18. That on 15/2/2024, the Respondent filed a cross-petition which included a Degree certificate bearing the Petitioner’s name from the University of Nairobi and a personal record form.

19. That the Degree certificate does not belong to the Petitioner there being no evidence that the Petitioner furnished the said alleged forged documents to the Respondent. That the Petitioner was not served with the alleged forged document before the disciplinary hearing was conducted. That even in the recent application in July 2023, for the position advertised Ref: NCWS/HR & ADMIN; HRAS/02/07/2023, the Petitioner states that she only relied on her Diploma certificate. That there is evidence that she has not at any one time produced a Degree certificate in her quest to get the current job or any other.

20. That a request by the Petitioner for the Respondent to produce before court her application form for the current job was not acceded to, todate. That there was no valid record for the summary dismissal. That the Respondent violated her right to a fair hearing and the procedure followed was in violation of Article 47 of the Constitution and amounted to unfair labour practice in violation of Article 41 of the Constitution.

21. The Petitioner also cites violation of section 45 of the Employment Act, 2007 and prays for the reliefs set out in the petition as follows:a.A declaration that the Petitioner’s disciplinary process particularly the notice to show cause and subsequent processes having been initiated without adherence to the Respondent’s Human Resource Manual and Articles 41 & 47 of the Constitution is a nullity.b.Compensation for violation of the Petitioner’s rights under Articles 41 & 47 of the Constitution.c.A declaration that the Petitioner is in possession of a valid Diploma in Human Resource and Business Management and also a profession in IHRM which entitles her to all the trainings she has attended for her to earn points as a profession.d.An order of CERTIORARI to quash the decision of the Respondent to initiate the Petitioner’s Degree certificate on allegation of forgery.e.The Petitioner be reinstated to her position without loss as to benefits; a position she has held for 3 years without confirmation, which the Petitioners applied being her substantive position and has the minimum qualification of diploma in HR as required by the Respondent structure.f.Costs of the petition and interests thereon.g.Any other further relief that this honourable court shall deem fit to grant

Vivian Khasandi Ayisi Facts of the petition 23. The Petitioner studied for a Bachelors of Law (LLB) Degree of Moi University from August 2003 to June 2007 and graduated with LLB on 19/10/2007. The Petitioner was enrolled to Kenya School of Law and was admitted as an Advocate of the High Court in the year 2014 and assigned P.105/11 144/14.

24. The Petitioner was employed by the Respondent as a Legal Assistant Grade 8 from August 2017 and worked continuously rising to the position of Investigation Officer in May 2019.

25. The initial job was not advertised. The Petitioner was initially placed on six (6) months’ probation. The position of investigation Monitoring Officer advertised on 15/10/2018 required a Bachelor’s Degree in Security, Criminology law. The applicant was the only applicant with a law degree. The applicant produced original documents during the interview and no issue was raised. The Petitioner was employed to the position.

26. The Petitioner posses a Masters of Arts in International Studies from the University of Nairobi.

27. On 8/8/2023, the Petitioner was issued with a notice to show cause on allegations that she had forged her LLB certificate. The forged Degree certificate was not attached.

28. The Petitioner was only shown the personal form/document and she disputed having indicated: Second Class Lower Division. On 21/8/2023 the Petitioner responded to the notice to show cause attaching her Degree certificate and an authentication letter from the University.

29. On 28/9/2023, the Petitioner was summoned to a disciplinary hearing held on 12/10/2023. Up to that time the Petitioner had not been furnished with the alleged forged degree certificate. The Petitioner reiterated the contents of the response to the notice to show cause.

30. The Respondent did not pay the Petitioner the August 2023 salary despite her working the entire month and for the subsequent month was only paid house allowance which occasioned her great hardship.

31. Pursuant to a petition filed on 15/11/2023 and an application, the Petitioner was granted orders on 28/11/2023, to be paid her full salary and any outstanding amount from the month of August 2023 to date pending interparties hearing of the application.

32. The Respondent blatantly disregarded the orders and on 7/12/2023, sent an email containing a back dated letter of summary dismissal dated 8/11/2023.

33. The Respondent filed a cross-petition dated 15/2/2024 and attached alleged forged Degree certificate bearing the Petitioner’s name for the first time with the qualification of Second Lower an application letter dated 19/6/2017 and a personal records form which documents were never furnished to the Petitioner.

34. The Petitioner denies that the alleged forged Degree certificate belongs to her. There is no job advertisement to which the Petitioner applied for by an application dated 19/6/2017. The application bears a signature that does not belong to the Petitioner. The application does not indicate to which position the Petitioner had applied. The application form does not have a slot for the Petitioner to indicate the specific grade or clarification of the Degree obtained. That no investigation internally was conducted prior to the institution of the disciplinary process to the loss and prejudice to the Petitioner since there was no opportunity to unearth all these discrepancies.

35. Like with 1st Petitioner, the Petitioner alleges violation of Articles 41 and 47 of the Constitution of Kenya and section 45 of the Employment Act, 2007 citing unfair labour practice and unfair administrative action and that the summary dismissal was not for a valid reason following a fair procedure provided under sections 41, 43 and 45 of the Employment Act 2007.

36. That the Petitioner be granted reliefs set out in the Petition which are on forms with those already set out in respect of the 1st Petitioner.

Answer to amended petition 37. The answers to the amended petitions may be summarized as follows:-

Petition No. E219 Liza Anyoso 38. The Respondent admits that Liza was its employee and that had produced academic and professional certificates upon recruitment. That among academic certificates produced was a Bachelor of Commerce Certificate from the University of Nairobi. That same was indicated in the curriculum vitae when she applied to the position of Human Resource and Administration Supervisor in November 2021. That the fact of having produced a forged certificate suffices regardless of whether the certificate aligned with the Petitioner’s professional roles. That the Petitioner indicated that the qualification was obtained between 2005 to 2008 and with Second Class Upper Division.

39. That proper investigations were done contrary to allegations by the Petitioner since the Respondent did thorough investigations in collaboration with relevant institutions. That investigation revealed that the Respondent had forged the employment through a fraudulent scheme of deception that had negative ramification on the institution of public service.

40. That sometime on 19th October 2022, the Public Service Commission issued a directive referenced PSC/ADM/13 requiring all authorized officers in the public service to inter alia undertake an audit of academic and professional certificates of newly appointed officers to maintain the integrity of public service.

41. That in compliance with the directive, the Respondent set to verify academic and professional certificates submitted by all existing staff.

42. On 5th May 2023, the Respondent requested the Academic Registrar, University of Nairobi to verify and confirm a set of 169 certificates that had been issued by the institution. The Academic Registrar on 30th May 2023 confirmed that the Petitioner was not a bonafide student of the institution and the Degree certificate was not authentic as it was a forged document. The Petitioner was asked to explain, and her explanation was not satisfactory and the Respondent on 24/8/2023 suspended the Petitioner from service pending further investigation.

43. Accordingly, the Managing Director addressed a letter to the Ethics and Anti-Corruption Commission informing that an internal verification exercise had unearthed 18 fake certificates from the Respondents employees, among them the Petitioner herein.

44. On 26/10/2023 EACC requested documents and information relating to 17 employees among them the two Petitioners herein.

45. On 21st November 2023, the documents relating to the two Petitioners were submitted to EACC.

46. That EACC is an independent body with statutory and Constitutional mandate to investigate such matters.

47. Therefore, the process leading to the suspension of the Petitioners was regular and in line with the Human Resource Policy and Procedure Manual of the Respondent.

48. The Respondent states that the suspension and disciplinary procedure followed was justified on the available information.

49. That the Petitioners were paid allowances as per clause 8. 24 of the HR & Policy Manual having been suspended for gross misconduct and that during that time are not entitled to basic pay.

50. That it is not true that letters of summary dismissal were back dated and the Petitioners were put to strict proof thereto. The Respondent states that recruitment of Petitioners was through a competitive process as is always the case.

51. The Respondent reiterates the false certificates submitted by Liza was considered during her 1st recruitment and during her promotion. The Respondent states that the recruitment of Liza was preceded by a formal application contrary to her averments. That clause 8. 23. 2 of HR Policy and Procedure permitted the disciplinary process and same was followed.

Vivian Khasandi Ayisi 52. Vivian’s certificate was subjected to the verification exercise narrated herein in respect of Lilian and the facts set out herein before apply mutaiti mutandi except that Vivian was employed to the position of Legal Assistant following production of academic and professional certificates. That Vivian was first placed on 6 month probation. That Vivian like Lilian was issued with a notice to show cause upon discovery that the LLB Degree certificate she had produced during employment by the Respondent is not the same certificate that was authenticated by Moi University to be genuine and the genuine certificate was not part of the employment records of Vivian. That the certificate Vivian had produced during her employment was a forgery.

53. That the disciplinary process was preceded by investigations by the Respondent in collaboration with EACC and so did not violate Respondent’s HR Policy and Procedure Manual. That it does not matter the particular qualifications that were required for the position but what is material is that Vivian presented a false certificate together with her application for employment which is reflected in her personal records form to the effect that she held a degree in law with the qualification of a Second-Class Lower Division when her true qualification was that of a pass.

54. The Respondent states that matter was reported to EACC who collaborated in the investigations and it is immaterial that the Petitioner was not charged with a criminal offence before the disciplinary process for gross misconduct was commenced against her by the Respondent.

55. The Respondent insists that the signature in the application letter of Vivian dated 19/6/2017 is her signature contrary to her denial since she presented the records form to the Respondent. That no one would benefit from forging her signature in the circumstances of this case and Vivian is placed on strict proof.

56. The Respondent states that fair disciplinary process was followed preceded by proper investigation in compliance with HR Police and Procedure Manual and the law.

57. That the Respondent did not violate Article 41 and 47 of the constitution and section 45 of the Employment Act, in the circumstances of the case.

Cross-petition 58. The Respondent in the cross-petition against the two Petitioners seek refund of Kshs. 10,284391. 40 in respect of Lilian and Kshs. 13,434,797. 00 in respect of Vivian being salaries and allowances unlawfully obtained from the Respondent by fact of their employment by the Respondent induced by presentation of false degree certificates as set out in the petition.

Response by Interested Party (EACC). 59. EACC filed replying affidavit of Pius Ndina, an investigator and Michael Ngere a forensic investigator in respect of Liza and Vivian’s degree certificates. The subject of the two petitions states that they were duly mandated to investigate this matter pursuant to a report by the Respondent, which is a public service institution in terms of the provisions of Chapter six of the Constitution of Kenya; the Anti-corruption and Economic Crimes Act 2003 and Anti-Corruption Commission Act 2011 and Leadership and Integrity Act CAP 182 Laws of Kenya which laws empower EACC to investigate the conduct of any person and/or body which in its opinion constitute corruption on economic crime and unethical conduct.

60. The EACC received a report dated 22/9/2023 from the Respondent as outlined in this judgment. That by a letter dated 26/10/2023, the Commission requested the Respondent to furnish personal files, appointment letters and any other related information of the officers in question including the two Petitioners to facilitate investigations. That the documents received vide a letter dated 21/11/2023 in respect of Vivian, EACC established that on 26/7/2017, she was employed as a Legal Assistant and later as an Investigation Officer. That Vivian had filled a personal records form NCWSC/H12/01 form dated 9/8/2017 whereon performance on academic qualification she indicated that she held a Masters Degree, a Degree “LLB – Second Class Lower Division from Moi University.”

61. That the said forms were subjected to forensic document examination alongside Petitioner’s sample handwriting and signature which revealed that the personal record forms filled and signed by the Petitioner.

62. That by a letter dated 27/3/2024 EACC inquired from Moi University whether, inter alia, the Petitioner was enrolled to the University, whether she graduated or completed the course and whether the certificate attached to the letter was issued by the University. Moi University responded by a letter dated 4/4/2024 and advised that the Petitioner was a former student at Moi University admitted under the privately sponsored students programme (PSSP) where she successfully pursued a degree course leading to a Bachelor of Laws and obtained a pass. That her degree certificate for Bachelor of Laws, Pass was awarded on 19/10/2007 is genuine and was issued by the University.

63. It was established therefore that the Petitioner intentionally filled incorrect information in the employment application form and proceeded to attach the said forged certificate in 2017 and then 2018.

64. That the degree certificate presented by the Petitioner to the Respondent was altered as above.

65. That EACC is at liberty to pursue prosecution against the Petitioner for forgery.

66. In respect to Liza Moraa, Pius Ndiwa states that EACC was furnished with personal records of the Petitioner upon a report by the Respondent of the matter and the personal documents of the Petitioner were forwarded to EACC by a letter dated 21/11/2023 which included, a copy of the impugned certificate of Bachelor of Commerce, Second Class Honours (Upper Division) from the University of Nairobi, personal records forms filled by the Petitioner in the course of her employment with the Respondent. That the personal records form is signed on 16/10/2012 and 24/3/2020 which contains an entry in the qualification section of a Degree in Bachelor of Commerce from the University of Nairobi.

67. That EACC subjected the said forms to forensic document examination alongside the Petitioners sample handwriting and signature which revealed that the personal record forms were filled and signed by the Petitioner.

68. EACC wrote to University of Nairobi vide a letter dated 18/3/2024, inquiring from the University whether, inter alia, the Petitioner was enrolled to the University whether she graduated or completed the course, and whether the certificate attached to the letter was issued by the University.

69. The University responded to EACC by a letter dated 17/4/2024 and advised that the certificate in question is not authentic because the Petitioner was not a student at the University and that the certificate was not issued by the University of Nairobi.

70. The conclusion of the investigation is that the Petitioner used forged Degree certificate in Bachelor of Commerce from the University of Nairobi to obtain employment and promotion from the Respondent.

71. That EACC was at liberty to commence criminal prosecution against the Petitioner.

Analysis 72. The Petitioners did not file affidavits to contradict the information deposed to by EACC forensic investigations. Primarily the Respondents confirm that they used alleged false information/degree certificate to obtain employment and or promotion.

73. The Petitioners allege that the Respondent violated their rights by not following the provisions of their Respondents, HR Policy and Procedure manual and by so doing engaged in unfair labour practice and unfair administrative action against them and effectively violated the Petitioners right to a fair hearing as enshrined under sections 41, 43 and 45 of the Employment Act, 2007 the Petitioners allege that the Respondent did not in the circumstances prove any gross misconduct against them. That they were wrongly suspended, no paid basic salary during the period of suspension and were summarily dismissed in violation of interim court orders that had directed the respondent to reinstate the Petitioners to their previous positions with full pay.

Determination 74. The parties filed written submissions and list of authorities. The court has considered same together with the deposition by the Petitioners and those by the Respondents and Interested Parties and the issues for determination are:-i.Whether the summary dismissal of the Petitioners was for a valid reason following a fair procedure.ii.Whether the summary dismissal was in violation of the interim court ordersiii.Whether the Petitioners are entitled to the reliefs sought.

75. In employment and labour matters be they brought by way of a petition or memorandum of claim, the fundamental issues for determination are whether the dismissal was for a valid reason and if the employer followed a fair procedure in dismissing the employee from employment.

76. Disciplinary proceedings at the work place are firstly guided by internal Human Resource Policy documents and secondly by relevant statutory provisions. These process need not be elevated to constitutional matters unless the employer threatens or violates human rights and fundamental freedoms of the employee enshrined in the constitution in the process of carrying out the disciplinary action.

77. In the present case, the Human Resource Policy and Procedures Manual of the Respondent provides a procedure for gross misconduct under clause 8. 23. 2.1 which provides that in the event an employee commits a gross misconduct, the DHRA shall make recommendations to the Managing Director on the best course of action. The decision shall be communicated to the employee and copied to the corporate disciplinary committee and the union representatives. The DRA shall then forward the case to the Security Department for appropriate investigations.

78. Clause 8. 24 provides for interdiction or suspension of an employee if disciplinary proceedings against him or her require investigation or when criminal proceedings are being taken against him/her. The clause provides that an officer on interdiction shall receive pay not less than half his/her basic salary. The officer shall receive all allowances due to him/her. That interdictions shall not exceed 60 days while third party cases, decisions to be taken by the company shall commence on the date of court decision.

79. The clause provides that an officer may be suspended from duty only if he/she commits a gross misconduct where an officer is suspended, he/she shall not be entitled to basic salary. The officer shall however be eligible for all allowances due to him/her being taken against him/her.

80. Where disciplinary action is taken and the officer is found innocent the withheld portion of salary shall be released upon termination of such proceedings. The provision provides that suspension shall not exceed 90 days. That an employee shall be given not less than 10 days’ notice by the Human Resource Manager to appear before the corporate disciplinary committee and the employee shall be informed of the outcome of the disciplinary process within one month on conclusion. The court notes that the provisions of this clause are contained in mandatory terms and must therefore be strictly followed.

81. In the present case the company referred the investigation of the suspected forged certificates to the EACC. The investigations conducted by EACC revealed that the degree certificates presented to the company by the Petitioner were forgeries as earlier described in this judgment. Upon receipt of the findings by EACC, the company commenced disciplinary proceedings against the Petitioners by issuing notice to show cause to the Petitioners to appear before the disciplinary committee.

82. In the case of Liza Anyoso Amara she appeared before the disciplinary committee on 12/10/2023. The Petitioner was accompanied by a union representative from the record placed before court which is signed by the Petitioner and the union representative Wycliffe Onditi dated 12/10/2023.

83. The notice to show cause in respect of Vivian Khasandi Ayisi is dated 8/8/2023 and was responded to by Vivian on 21/8/2023 Vivian was suspended on 24/8/2023 with no basic pay. This procedure was also applied in respect of Liza. Vivian was summoned to appear before the corporate disciplinary committee on the same day with Liza on 12/10/2023. Liza was advised to bring an employee of choice to the disciplinary process.

84. The court is satisfied that the company conducted appropriate investigations on the matter of alleged forged certificates in collaboration with EACC before summoning the Petitioners to answer charges of gross misconduct by presenting false information and certificates to the company at the time of recruitment and promotion. The court finds that the Respondent did not violate the Human Resource Police Manual in the manner it prosecuted the disciplinary proceedings against the two Petitioners. The court finds that the allegation of violation of Articles 27, 28, 41 and 47 of the Constitution in respect of the two Petitioners have not only been adequately substantiated but the cases fall short on sufficient prove of violation of the human rights of the Petitioners in this respect.

85. The court finds that the Respondent has vide their depositions and submissions proved on a balance of probability that there were valid reason(s) to summarily dismiss the Petitioners from employment. The Respondent discharged the onus placed under section 41, 43 of the Employment Act, 2007. The Respondent did not therefore violate section 45 of the Employment Act, 2007 as alleged by the Petitioners or at all.

86. The court finds that the procedure followed by the Respondent was in accordance with the company Human Resource and Procedure Manual and did not violate the provision of section 41 of the Employment Act, 2007.

87. Accordingly, the Petitioners have failed to prove their case against the Respondent with regard to any alleged violation of the HR Policy Manual, the Employment Act, 2007 and the provision of the Constitution of Kenya 2010.

88. The court has determined the petition on the merit having considered that it has appropriate jurisdiction to deal with the petitions presented before it by the two Petitioners.

89. The decision of this court in Susan Khakasa Oyatsi versus Judicial Service Commission (2022) KEELRC 3 KLR does not resonate with this case. The company in this matter satisfied both procedural and substantive fairness in the disciplinary process that culminated in the summary dismissal of the Petitioners.

90. The court is not satisfied that the summary dismissal was backdated to defeat the interim orders issued by the court. To the contrary the Petitioners had obtained interim court orders without full disclosure to the court at the time the interim orders were issued.

91. The orders sought by the Petitioners in the amended petition dated 8/3/2024 are not warranted and are refused by the court.

92. With regard to the cross-petitions by the Respondent to claim back salaries and allowances earned by the Petitioners while they served the Respondent, the Respondent has failed to prove to the satisfaction of the court that the Petitioners did not sufficiently perform the duties they were assigned to do while they worked for the Respondent.

93. The Petitioners had the primary onus of proving on a balance of probability that it suffered loss and damage as a result of the relationship it had with the Petitioners from time of their employment to the date of summary dismissal.

94. The Respondent has not adduced any and or any sufficient evidence to discharge this onus accordingly, the cross-petition by the Respondent has also failed.

95. In the final analysis, the court dismisses the two petitions and cross-petitions in their entirety and each party bear their own costs of the suit.

DATED AT NAIROBI THIS 19TH DAY OF DECEMBER 2024MATHEWS NDUMAJUDGEAppearance:Mr. Malenya for PetitionersMr. Limo for respondentMs. Kibogi for Interested PartyMr. Kemboi – Court Assistant