[2018] KEELRC 713 (KLR)

REPUBLIC OF KENYA

IN THE INDUSTRIAL COURT AT NAIROBI

CAUSE NUMBER 152 OF 2011

BETWEEN

JOHNSON K. CHERUIYOT........................CLAIMANT

VERSUS

THE ATTORNEY-GENERAL................RESPONDENT

Rika J

Court Assistant: Benjamin Kombe

__________________________

Omao Omosa & Company Advocates for the Claimant

The Attorney-General for the State

__________________________________________

JUDGMENT

1. This is an old matter, filed in the year 2011. It was after 7 years, heard during the Court’s service week, on 17th April 2018, in Nairobi. The Claimant gave evidence on this date, as did Principal Human Resource Officer in the Office of the President George Kihara, bringing proceedings to a close. The Claimant filed his Closing Submissions on 23rd May 2018, while the Respondent did so on 28th May 2018. The file was received by the Judge in Mombasa in the month of July 2018 for writing of the Judgment.

2. In his Statement of Claim filed on 9th February 2011, the Claimant avers he was worked as an Area Chief of Ol Moran Location, Laikipia County, within the Republic of Kenya. He was an Officer of the Public Service Commission of Kenya, working under the Ministry of Provincial Administration and Internal Security.

3. On or about June 2006, he received a letter from his Employer advising him he had been retired on the ground of public interest. He states he worked for 13 years. Retirement was arbitrary. He was not given notice of termination. There was no opportunity availed to him to defend himself against any accusations. He was paid nothing on retirement. He prays for Judgment against the State in the following terms:-

a) Declaration that retirement of the Claimant is illegal and/or unlawful, and he is entitled to severance pay, terminal benefits, 3 months’ salary in lieu of notice, unpaid leave, general damages for wrongful dismissal as shall be assessed by the Honourable Court, and/or unconditional reinstatement forthwith.

b) Costs of the Suit.

c) Interest on [a] and [b] above at Court rate.

d) Any other relief that this Honourable Court may deem fit to grant.

4. Cheruiyot told the Court in his evidence that he was involved in settlement of community disputes. He received a letter from the Permanent Secretary, Provincial Administration, dated 23rd June 2005 alleging the Claimant was involved in several acts of gross misconduct. It was alleged that the Claimant: is a drunkard and actually drinks illicit brew even during official hours; he demands cash from his subjects before rendering services to them; he is not very supportive of the Government since he behaves like a Youth- Winger; and his domestic life is wanting as he has neglected his family, and moved in with a concubine. The Claimant was told the Government intended to retire him in public interest. He received this letter from his District Officer. He was asked to hand over Office. He was never heard.

5. He made an appeal to the Public Service Commission of Kenya. He was not granted a personal hearing. He was not in any way involved in decision-making on appeal. The allegations against him from the outset, were totally false, He has never been involved in bribery or drunkenness. He testified that he served as Area Chief for 8 years. He was denied terminal dues. There was no notice of termination. His last salary was about Kshs. 9,000.

6. Cross-examined, the Claimant testified that that he was dismissed in public interest. He was not engaged in bribery and drunkenness. He did not neglect his family. He did not fail to support the Government. He received letter to show cause. He replied. He was advised on his right of appeal. He appealed to the Public Service Commission. He was advised to make a second appeal [review?]. He received communication on the second appeal. He was given the chance to respond to all the allegations. He was however denied a personal hearing. He only responded in writing. Redirected, Cheruiyot told the Court personal hearing would in the circumstances have been proper. He was about 55 years as of the time he gave evidence. He still desires to be reinstated as the Area Chief, Ol Moran Location, Laikipia West District [former], in the Rift Valley Region.

7. In support of the Claim are annexed the following documents:-

i. Letter dated 23rd June 2005 from the Permanent Secretary, Provincial Administration and Internal Security to the Claimant titled ‘Gross Misconduct.’

ii. Letter of response from the Claimant to the Permanent Secretary dated 20th July 2005, under the head ‘Misconduct.’

iii. Letter from the Permanent Secretary to the Claimant dated 7th June 2006, referenced ‘Retirement in Public Interest.’

iv. Letter from the Claimant dated 3rd November 2008 to the Public Service Commission headed ‘Review of Retirement from Public Service.’

v. Letter from the Permanent Secretary to the Claimant dated 7th September 2007, referenced ‘Appeal Against Retirement in the Public Interest.’

vi. Pay slip for the month of November 2005, showing a gross monthly salary of Kshs. 11,081.

The letter containing the Claimant’s initial appeal after retirement does not seem to be on the record.

8. The Respondent filed its Statement of Response on 8th March 2011. It is agreed that the Claimant was employed by the Government as Area Chief, Ol Moran Location. The Claimant was retired in public interest for acts of gross misconduct, particularized at paragraph 4 of this Judgment. The Respondent did not breach Claimant’s contract of employment, or act illegally. The Claimant has not suffered any loss and damage attributable to the Respondent. The Respondent did not receive any notice of the Claimant’s intention to sue. The Claim has no merit. The Respondent prays the Court to dismiss the Claim with costs.

9. George Kihara confirmed that the Claimant was employed by the Office of the President as a Chief. It was reported by Claimant’s Supervisor, the Provincial Commissioner that the Claimant drunk illicit brews; he asked for bribes from his Subjects; he neglected his Family, and acquired the comfort of a concubine; and his conduct in general deteriorated.

10. The matter was placed before the Ministerial Committee. It was recommended the Claimant is retired in public interest. His file was forwarded to the Public Service Commission. The Commission concurred with the Committee that the Claimant should be retired in public interest. There was no requirement for personal hearing in the Code of Regulations applicable to the Claimant.

11. He appealed against the initial decision, and sought review after appeal was rejected. Review was similarly rejected and the file closed. Due process was followed to the letter. Cross-examined, Kihara told the Court that the Respondent sought the comments of Claimant’s Supervisor before making decision. These comments and recommendations were not binding on the Ministerial Committee. The comments were not ascertained by the Committee. The Witness clarified on redirection that there was no new evidence, nothing positive, about the Claimant, as the dispute progressed from one level to the other.

12. There are no documents filed by the Respondent in support of its position.

The Court Finds:-

13. The Claimant was employed by the Public Service Commission, under the Office of the President, Ministry of Provincial Administration and Internal Security. He worked for 13 years. He was retired in public interest on 7th June 2006.

14. It was alleged by his Employer that the Claimant was a drunkard. He took illicit brews, even during working hours. He asked for bribes from the public in return for rendering public service. He was not very supportive of the Government, since he behaved like a Youth-Winger.

15. The Claimant’s response to these allegations is contained in his letter dated 20th July 2005. Although his evidence before the Court was in the nature of general denial, his written response is detailed.

16. He admits he used to take alcohol during initiation ceremonies, in accordance with Kipsigis customs. He stopped doing this in the year 2003. Those who desired to see his downfall misrepresented the facts, alleging he was a habitual drunkard. He denied ever asking for bribes from the public. This was an unfair allegation. He was surprised by the allegation that he was not supportive of the Government. He was very supportive and crime rate had drastically gone down under his watch. He listed various occasions when he led Police Officers in arresting chang’aa brewers, and in destroying their wares and tools of trade. He stated he never had a concubine, and demanded the Employer names who the alleged concubine was. He revealed he had one Wife. He had 3 Children, all well-schooled and well-fed. He offered his Wife to the Government for interrogation on the subject. Lastly, he stated if he was proved unworthy of public service after investigation, he was ready to embrace positive change.

17. The Employer did not accept this response. On 7th June 2006, the Claimant was retired in public interest.

18. The Court has not been shown any record from the Employer, justifying the decision to retire the Claimant in public interest. There were accusations made against the Claimant. He was asked to show cause why, he should not be retired in public interest. He complied and gave a detailed response. Was his response considered and at which forum? Were the allegations against him established and at which forum? If he had moved in with a concubine, is this the business of the Government? He asked the Government to consult his Wife on the subject. Did the Government take evidence from his Wife and where is this evidence on record? Was there a report from the local Children Office to confirm allegations that the Chief had neglected his Children?

19. The Court does not understand how the Claimant was unsupportive of the Government. He gave examples of how he diligently discharged his role in fighting illicit brewers. There is not a single incident given by the Respondent, to suggest the Claimant was unsupportive of the Government. It was not shown what being supportive entailed. It was quite perplexing, to equate the Chief to a Youth-Winger. In any case, the Court was not shown how a Youth-Winger ordinarily behaved and how such behaviour invariably amounted to gross misconduct. Which Youth-Winger, from which Organization, did the Employer have in mind? The Government was insensitive to the Youth of Ol Moran, by implying that their general behaviour was a byword for gross-misconduct.

20. The allegations relating to taking of bribes from the public were not established. There is no record of any specific complaint. No member of the public is recorded anywhere to have complained about the Claimant having made a demand before he could discharge his public functions. On drunkenness, the Claimant gave a plausible explanation that he drunk during initiation rites, in deference to Kipsigis customs. It was not shown that he was drunk in the course of his work, and became unable to discharge his role. It is not an employment offence to take alcohol, or even report to work while under the influence of alcohol; it only becomes an employment offence if during working hours, by becoming or being intoxicated, the Employee renders himself unwilling or incapable to perform his work properly. It was not shown that as a result of taking alcoholic beverages, the Chief rendered himself unwilling or incapable to perform his work properly. The Employer seems to have misunderstood the Claimant’s dual role as a Chief and an Elder within his community. It was in order for him to participate in Kipsigis circumcision rites which included taking of traditional brew.

21. The Claimant lodged an appeal, and sought review after the appeal was declined. At all levels, there is no recorded hearing, either in the presence of the Claimant or in his absence. The Witness for the Respondent testified it was not necessary under the Public Service Code of Regulations to have the Claimant present. Even if this was so, where is the record of hearing done in the absence of the Claimant? There is no evidence of any hearing at any level. It is difficult to say that the Claimant was heard at any level. There were various organs- the Ministerial Committee, the Public Service Commission Appeals Organ, and the Review Mechanism- which are said to have attended to the disciplinary process. None is shown to have engaged the Claimant personally.

22. In High Court Civil Case No. 3472 of 1994 between Geoffrey Muguna Mburugu v Attorney-General; High Court case between Joseph Mulobi v Attorney-General [Law Monthly No.15 of March/ April 1989]; Industrial Court Cause No. 379 [N] of 2009 between D.K. Njagi Marete v Teachers Service Commission [2013]e-KLR; and more recently E&LRC decision in Sheikh Abubakr Bwanakai Abdallah v. Judicial Service Commission & Another [2017]e-KLR, it was held that the Employer must approach the issue of retirement in public interest with an open mind, and behave in a quasi-judicial manner. The Employer in the proceedings herein, did not have an open mind, and did not exercise its mind in a quasi-judicial way, in treatment of Cheruiyot. There were just allegations made against the Claimant by faceless people. No proper investigation was carried out to establish the truthfulness of these allegations. No hearing is recorded to have taken place. The Government engaged in vituperation and rumour-mongering, in determining that the Claimant should be retired in public interest.

23. The Claimant’s prayers are not very clear. His main prayer is for declaratory orders. He asks the Court to declare he is entitled to severance pay. Severance pay is available to Employees who leave employment on redundancy. He was retired in public interest. He asks the Court to declare he is entitled to terminal benefits. He does not specify what these terminal benefits comprise. He pleads 3 months’ notice pay. He does not state which clause under his contract of employment, which Public Service Regulation, allows him 3 months’ notice or 3 month’s salary in lieu of notice upon termination. He prays for unpaid annual leave. The days of unpaid leave involved are unspecified. The amount is unstated. Alternative to the monetary awards, he seeks unconditional reinstatement.

24. Starting with reinstatement, the Court agrees with the submission of the Respondent, that in considering the remedy of reinstatement, the Court must look into practicability of the remedy. ‘Practicability’ as submitted by the Respondent relying on a decision from New Zealand whose citation is unclear, refers to the capability of being carried out in action, feasibility or re-imposition of the employment relationship to be done or carried out successfully. The Claimant has been out of service since the year 2006. It is 12 years since his departure. Is it practicable to re-impose the employment relationship? It is possible to rebuild the employment relationship after 12 years? The Parties must have moved on, with perhaps many other Chiefs having already served, and continuing to serve, in the Claimant’s previous position. The Claimant must be approaching the mandatory retirement age. He states he is about 55 years. He would be of no public service utility to the residents of Ol Moran at this age. The Court does not think that reinstatement would be practicable, reasonable or lawful, 12 years after retirement.

25. The prayer for severance pay is declined on the ground stated at paragraph 22 above. The prayer for unpaid annual leave as stated above is not supported in evidence and is rejected. Notice pay pegged on 3 months, is similarly not supported. The Court grants him the standard 1 month salary in lieu of notice allowed under the statute for Employees on monthly salary. His pay slip indicates his last monthly gross salary was Kshs. 11,081. He is granted notice pay at Kshs. 11,081.

26. As mentioned elsewhere there is a blanket prayer for terminal benefits. The Court is not able to grant this for want of particulars.

27. Having found that retirement in public interest was unlawful and unfair, the Court grants to the Claimant damages assessed at Kshs. 132,972.

28. No order on the costs.

29. Interest granted at 14% per annum from the date of Judgment, till payment is made in full.

IN SUM, IT IS ORDERED:-

a) Retirement of the Claimant in public interest was unlawful.

b) The Respondent shall pay to the Claimant 1 month salary in lieu of notice at Kshs. 11,081 and general damages for unlawful termination at Kshs. 132,972- total Kshs. 144,053.

c) Interest granted at 14% per annum from the date of Judgment, till payment is made in full.

d) No order on the costs.

Dated and signed at Mombasa this 19th day of September 2018.

James Rika

Judge

Dated, signed and delivered at Nairobi this 12th day of October 2018.

Onesmus Makau

Judge