[2017] KEELRC 512 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI

CAUSE NO 1099 OF 2017

JOB OMONDI OUMA..................................................................CLAIMANT

VERSUS

KENYA REVENUE AUTHORITY.....................................................RESPONDENT

RULING

1. By a Notice of Motion, under certificate of urgency, dated 15th June 2017, the Claimant seeks the following reliefs:

a) An order of injunction restraining the Respondent from conducting any further disciplinary proceedings against the Claimant and/or re-opening the case over the same issues already determined by the Anti-Corruption Court;

b) An order directing the Respondent to immediately reinstate the Claimant;

c) An order declaring the Claimant’s interdiction for a period of six months and the attendant delay in his reinstatement illegal, null and void.

2. The application, which is supported by the Claimant’s own affidavit is based on the following grounds:

a) The Claimant worked in the Respondent’s Customs Department, until 13th May 2015, when he was interdicted, on various allegations. The Claimant was charged in Mombasa Chief Magistrate’s Anti-Corruption Case No 5 of 2015 and was acquitted on 14th April 2016;

b) The Claimant was called to appear before the Disciplinary Committee over the same issues and to date the Respondent is yet to communicate the outcome of the disciplinary proceedings;

c) The Claimant has been interdicted and denied his emoluments since May 2015 and his inquiries have gone unanswered;

d) The prolonged interdiction is in contravention of the Claimant’s rights under Article 47 of the Constitution, the law and the Respondent’s Employee Code of Conduct;

e) The interdiction also goes against guidelines on handling of cases of public officers suspected of involvement in corrupt practices, issued on 24th May 2010.

3. The Respondent’s response is contained in a replying affidavit sworn by Grace Mwangi on 17th July 2017. She depones that the Claimant who was employed by the Respondent on 21st December 2006, was an officer in the Customs and Border Control Department, stationed at Mombasa.

4. Mwangi further depones that on 15th April 2015, the Claimant was charged with crimes contrary to Section 45(2)(b) as read with Section 48(1) of the Anti-Corruption and Economic Crimes Act, 2003. The Claimant was interdicted on 13th May 2015, pursuant to Section 8. 1 of the Respondent’s Code of Conduct.

5. The interdiction was to allow further internal investigations on allegations made against the Claimant to wit; failure to comply with applicable guidelines relating to auction of goods. The investigations revealed that the Claimant had breached the Respondent’s Code of Conduct and was thereforesubject to disciplinary action, of which the Claimant was duly notified on 18th October 2016.

6. Mwangi states that decisions from a criminal court do not absolve an employee from accountability under the Respondent’s Code of Conduct. She points out that matters prosecuted under the Ethics and Anti-Corruption Commission are criminal in nature, while the disciplinary process under the Code of Conduct is administrative.

7. There are two (2) issues for determination in this application:

a) Whether the Claimant’s acquittal by the Anti-Corruption Court acts as a bar to disciplinary proceedings on the same set of facts;

b) The effect of delay in concluding the Claimant’s case.

8. On the first issue, the Claimant submits that he cannot lawfully be subjected to disciplinary proceedings on the same charges of which he was acquitted by the Anti-Corruption Court. The Respondent disagrees, citing Clause 12. 1 of its Code of Conduct which provides as follows:

12. 1 the fact that criminal proceedings have been instituted againsta staff member shall not preclude the Authority from taking anydisciplinary action for the same report, act or omission, neither shall an acquittal or a discharge by a Court of Law for the same act/omission stop the Authority from initiating the disciplinary process

9. On his part, the Claimant submits that the Respondent’s action of subjecting him to a disciplinary process on issues for which he was tried and acquitted by the Anti-Corruption Court, exposes him to double jeopardy. In support of his case, the Claimant referred to the decision in David Nyamai & 7 others v Del Monte Kenya Limited [2015] eKLRwhere the Court (Ongaya J) found a necessary nexus between disciplinary proceedings and a criminal trial.

10. I think however that the reasoning behind the decision in the David Nyamai Case(supra) was overturned by the Court of Appeal inAttorney General v Andrew Maina Githinji and another [2016] eKLRwhere it was established that there is in fact no such nexus. In reaching this decision, the Court of Appeal relied on its earlier decision in Kibe v Attorney General (Civil Appeal No 164 of 2000), to the effect that acquittal in a criminal trial does not automatically render an employee immune to disciplinary action.

11. The second issue has to do with the delay in concluding the Claimant’s case. On this account, the Claimant argues that because the Respondent has exceeded the disciplinary time limit set out in its Code of Conduct, then the Court should terminate the disciplinary proceedings and reinstate him back to work.

12. In considering a similar application in Loice Mutai v Kenya Revenue Authority [2017] eKLRthis Court stated the following:

“No doubt the Court has wide discretion to grant orders. Discretion must however always be exercised judiciously and with circumspection. This is more so because by ordering reinstatement, the Court is in effect, reversing a management decision. The Court must therefore tread with caution, especially at the interlocutory stage, when not all the facts are on the table. In my view, an employee seeking reinstatement must earn their stripes by going through a full trial.”

13. I have no reason to change my mind on this matter and therefore decline to grant the interlocutory orders sought.

14. The costs of the application will be in the cause.

15. Orders accordingly.

DATED SIGNED AND DELIVERED IN OPEN COURT AT NAIROBITHIS 3RDDAY OF NOVEMBER 2017

LINNET NDOLO

JUDGE

Appearance:

Mr. Odhiambo for the Claimant

Miss Mburugu for the Respondent