[2004] KEHC 920 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

CIVIL CASE NO. 35 OF 1995

(FORMERLY S.P.M.C.C. 737 OF 1992)

JULIUS MASIVA OBUGA ::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF

VERSUS

KENYA BROADCASTING CORPORATION

ATTORNEY GENERAL ::::::::::::::::::::::::::::: DEFENDANT

J U D G E M E N T

The history of the matter is that the plaintiff first filed this case against the Kenya Broadcasting Corporation vide a plaint dated 18th April 1991 filed in court on 7th May 1991 and given the number Eldoret H.C.C.C. No. 79 of 1991. The defendants were served and they entered appearance on 20th June 1991. They filed a defence dated 2nd July 1991 on 8th July 1991.

On 8th August 1991 the plaintiff amended his plaint dated 8th August 1991 and filed on 16th October 1991 introducing the second defendant being the Attorney General of the Republic of Kenya.

On 20th July 1992 by consent of the parties the suit No. Eldoret H.C.C.C. No. 79/91 was transferred from the High Court to the Principal Magistrate’s Court Eldoret for hearing and final disposal. Upon transfer to the lower court the suit was given the number Eldoret PMCCC No. 737 of 1992. While in the lower court on 22nd March 1993 the plaintiff filed an amended plaint amended on 10th May 1993. The defendants put in an amended defence amended on 23rd April 1993 while the matter was still in the lower court.

It appears that an application was made to have the case retransferred to the High Court again from the lower court for hearing and disposal. The court order and case number in which the retransfer order was made are not on the court file. But the court has traced a letter by the Deputy Registrar High Court dated 14th March 1995 addressed to the Senior Principal Magistrate Eldoret acknowledging receipt of File SPMCC No. 737 of 1992 and informing them that the same has been registered as Eldoret HCCC No. 35 of 1995.

On 27th May 1997 the plaintiff filed an application by way of Chamber Summons under order VIA rules 5, 6, 7, 8 and order 1 rule 16 Civil Procedure Rules seeking leave of court to be granted to the plaintiff to amend the plaint in terms of the draft amended plaint filed herewith, that the amended plaint filed herewith be deemed duly filed and served and that costs be provided for. That application came up for hearing on 8. 7.97 and the following orders were made. By consent leave to amend granted as prayed, the amended plaint to be treated as duly filed and served upon payment of court fees, the plaintiff to have seven days from the date of service upon him of the amended defence to put in a reply if any, costs to the respondent. A perusal of the record shows that the defence elected not to amend their defence further. The trial therefore proceeded on the basis of the further amended plaint and the defendants amended defence which was amended in the lower court.

On 5th February 1999 the plaintiff filed a notice dated 5th February 1999 discontinuing the suit against the Attorney General who had been sued as the second defendant.

The key averments in the further amended plaint are that the plaintiff was at all material times the employee of the defendant in the capacity of Senior Studio Operator at a salary of £2424 and later £2820 per annum that the defendant (Kenya Broadcasting Corporation) was created by Act No. 15 of 1988 and took over all operations and liabilities of the Voice of Kenya during the year 1989, subsequently the defendant absorbed those employees of the Voice of Kenya who so desired and the plaintiff who was an employee of the Voice of Kenya as a Senior studio operator and at a salary of £2424 and later £2820 per annum joined the defendant corporation on that capacity, that during or about the year 1987 the plaintiff while an employee of the defunct Voice of Kenya rose to Job Group L and was supposed to earn an increment salary of £4,902 to £6,999 per annum.That on or about 13th October 1989 the defendants corporation unlawfully and wrongfully terminated the plaintiffs services without any justifiable cause or reason, that on 16th February 1987 the plaintiff earned a promotion to the grade of job group L and now entitled to all dues and benefits under that grade in conforming with his terms of service, that the plaintiff shall at the hearing of this suit prove that at the time of illegal and unlawful termination of his employment he was entitled to earn a salary of £6999 per annum and not £2820 per annum.That the plaintiff shall further at the hearing of this suit prove that when he was irregularly and wrongfully terminated from his employment the defendant failed to pay his earned arrears in the total sum of £6754 Ksh. 135,080. 00 which the plaintiff hereby claims from the defendant, that the plaintiff shall further also at the hearing of this suit prove that he was entitled to a promotion to job group BA 3 from job group L whereby he was now on scale of £5634 to £7296 per annum from 1989, that the plaintiff shall prove that by reason of the defendants said unlawful acts the plaintiff has lost a total sum of £5745 (134,240 for a period running from 1989 to 1994 when the plaintiff would lawfully retire from his employment which sum is hereby claimed from the defendant corporation, that by reason of the said defendants unlawful act the plaintiff could not earn his entitlement in house allowance for the said years that is 1989, 1990, 1991, 1992, 1993 and 1994 whereby the total sum is £27,000. 00 Ksh. 540,000/- which the plaintiff hereby claims from the defendant.That the plaintiff was underpaid in terms of house allowance for the years of 1987, 1988 and lost a total of £7,740 Ksh. 154,800/- which he claims from the defendant, he plaintiff claim the total sum of £5448 – Ksh. 108,960/- being unpaid leave for the period between 1989 and 1994, the plaintiff also claim against the defendant is for payment of pension, entitled to an increment and benefit consonent with his grade and rank in the defendant services status, that he did not want to retire at 50 and he therefore never made any voluntary application to that effect, avers that his retirement was improper and irregular as the Kenya Broadcasting Corporation Act became operational on 19th February 1989 hence the plaintiffs retirement should have been under the Kenya Broadcasting Corporation and not the public service commission, that under the Kenya Broadcasting Act aforesaid the board was to compare the super-numerical scheme for retirement which ought to have been applicable in the plaintiffs case, that the purported retirement under the 50 year rule was out of proportion, unlawful and therefore void, seeks orders that retirement without prejudice to payment of pension to him did not conform with the Civil Service code of requisite regulations and therefore the plaintiff is still validity in employment also seeks damages, for wrongful termination, payment of unpaid increment, full terminal benefits and pension arrears at the right scale representing under payment, further prays for orders that the defendants in retiring the plaintiff at the purported age of 50 years was in breach of the plaintiff, contract of service and the plaintiff should be remunerated accordingly.

In consequence thereof the plaintiffs prays for judgement against the defendant for the sums claimed in paragraphs 6 (b), 7b, 7c, 7d, 7e and 8 of the further amended plaint, an order for payment of pension arrears at the right scales. And general damages for unlawful dismissal under retirement/termination, all unpaid increment and arrears and full benefits, orders that the plaintiffs employment with the defendant subsists, costs and interest.

The defendants have defended those claims by averments in their amended defence filed in court on 10. 5.1993. The key averments of the same are that the defendant denies that the plaintiff was its employee as alleged in paragraph 3 of the plaint. Without prejudice to the foregoing the defendant avers that at all material times the plaintiff was an employee of the public service commission under the Ministry of Information and Broadcasting and was merely attached to the service of the defendant for a period of 273 days from 1st February to 31st October 1989, that the defendant does not admit paragraph 4 of the plaint and maintain that in or around October 1989 it neither had a payroll nor employees of its own, further denies that it had a contract of employment with the plaintiff as alleged or at all and maintain that it was not responsible for the plaintiffs public service, maintain that since it came into operation only on 1st February 1989 vide legal notice No. 23 of 1989 it could not have been involved in the alleged denial of promotion, increments, dues, benefits etc. to the plaintiff which allegedly occurred before it came into existence. Without prejudice however if the plaintiff suffered damage at all (which is denied) the defendant denies responsibility therefore, that the defendant is not aware if the plaintiff retirement was out of proportion, unlawful and void and or did not conform to the Civil Service code of regulations as alleged in paragraphs 10 and 11 of the plaint, the defendant contends that it is not subject to the civil service code of regulations and in any event there are records to show that the plaintiff voluntarily applied to his employer for permission to retire from the civil service under the 50 year rule and was allowed to do so, that the rest of the allegations in the plaint were denied.

For reasons given the defendant prayed for the plaintiffs suit against it to be dismissed with costs. The plaintiff was the sole witness on his side, while the defence also called one witness. The salient feature of the plaintiffs testimony are as follows:-

1. That as at the time of testimony in court he was a retired civil servant having been an employee of the Voice of K enya within the Ministry of Information and Broadcasting. As at the time he retired he had been transferred to Eldoret in 1989 to be in charge of Western, Nyanza and the North Rift while based at Eldoret. His duties entacled him being in charge of both the Radio and Television news coverage and film designation.

2. In the year 1988 a bill of Parliament was enacted into law whereby the Voice of Kenya was translated into a parastatal which action gave birth to the Kenya Broadcasting Corporation. The said bill became an Act of Parliament on 19. 2.89 by which time he was still in the employment of the Voice of Kenya which he had joined in the year 1966 as junior technical operator and between 1966 and 1989 he had served the said Voice of Kenya in various stations including Nairobi, Mombasa, Nyeri, Kisumu and Eldoret just to name a few and also he had performed various duties as assigned to him by his superiors. At some point in time he was promoted to Senior Technical Manager in 1987 but could not produce documents to prove that promotion because in the year 1992 he became a victim of the infamous Rift Valley tribal clashes whereby his home together with his valuables as well as vital documents were burnt down.These matters were reported to the police at Eldoret police station who issued him with an abstract giving a list of what he reported lost in the arson among them the employment letter. promotion letters and the last payment voucher which were documents relevant to this case. But to his recollection his last salary was Ksh. 4,730. 00 per month plus a house allowance of Ksh. 1,566. 00. Other employment benefits included 30 days annual leave and first class railway travel while proceeding on leave with his family or its equivalent monetary terms.

3. It is his evidence that when the Kenya Broadcasting Corporation was born it absorbed the employees of the Voice of Kenya automatically and by virtue of that he also became an employee of the Kenya Broadcasting Corporation by virtue of the Kenya Broadcasting Corporation Act which came into force in February 1989 when he was still in employment before he was unceremoniously and unlawfully retired from the service in October 1989.

At that time he was waiting for a letter from the management of the Kenya Broadcasting Corporation absorbing his services and instead and to his shock he received a letter from Permanent Secretary Ministry of Information and Broadcasting through the Managing Director Kenya Broadcasting Corporation dated 13. 10. 89 informing him that he had been retired by the Public Service Commission under the 50 years rule. Upon receipt of that letter the plaintiff was not happy as he was no longer under the Permanent Secretary Ministry of Information and Broadcasting after the Kenya Broadcasting Corporation had been born. He plaintiff wrote several letters to the managing director Kenya Broadcasting Corporation seeking clarification but he received no replies. He also made efforts to go and see him personally but he was not given an opportunity to see him. He also made efforts to see the pensions officer in Jogoo house but he too could not offer any assistance to him. The copies of the letters he wrote were among those that were destroyed during the arson. It is further his evidence that the pension officer failed to get a letter from the department concerned showing that the plaintiff had opted to retire at the age of 50 years. Meeting a dead end in his struggle to regain back his employment he asked the pension officer to calculate his pension at job group H. It is his evidence that the pension at Job group H was properly calculated and he was receiving the same.

4. It is his evidence that since he was an employee of Kenya Broadcasting Corporation he should have been retired under the Kenya Broadcasting Corporation terms and he should be paid his pension on Kenya Broadcasting Corporation terms. It is further his evidence that he became aggrieved as he never applied to retire at the age of 50 years hence his lodging of the claim he has presented to court as enumerated elsewhere in this judgement.

When cross examined by the defence lawyer he stated that that he was recruited by Voice of Kenya after a successful interview.He was issued with letters of appointment and promotions and those showing his job group but these are among the items which were destroyed during the arson attack in his house, he confirms that all these documents were from a government department, he maintained he lost all the documentation detailing his promotion, salary and benefits during the arson but agrees that copies could be traced in his personal files with his former employers but he did not bother to go and get their copies neither did he advise his lawyers to have these documents produced, he agrees that although he maintains that his pension was wrongly calculated he never went to court to compel his former employers to calculate his pension properly, he agrees that the pensions he started getting in August 1991 relate to the period between 1966 – 31. 10. 89 under the employment of Voice of Kenya , he agrees that he worked for the Kenya Broadcasting corporation for 273 days as stated in the defence but the pay came from the Voice of Kenya . He agrees that there was no secondment for him to the Kenya Broadcasting Corporation neither was a letter send to him by the said Kenya Broadcasting Corporation asking him if he could offer or elect to work for Kenya Broadcasting Corporation, he agrees that he has no letter from Kenya Broadcasting Corporation that he was their employee.He also agrees that he never contributed any monies to the Kenya Broadcasting corporation Pension Scheme and his only assurance of employment by Kenya Broadcasting Corporation was the Act of Parliament which is very clear on the issue of transition. He however confirms that despite that there is no time he ever received a payslip from Kenya Broadcasting Corporation for his salary up to the time he was pushed out by Kenya Broadcasting Corporation in October 1989, he maintains he is still awaiting for his correct pension. He agrees that Kenya Broadcasting Corporation was to have its own Finances within a year and then take over the liabilities of the Voice of Kenya but by the time it did so he had already been pushed out of his employment. That the booklet on Kenya Broadcasting Corporation pension scheme became operational on 1. 7.91 and clause 3 thereof clearly shows that to join the scheme one had to join it in the first day of each succeeding month and he must be 18 years and not reached 54 years. Secondly to join the scheme one must sing the forms authorizing deductions of funds towards the scheme. P.W.1 the plaintiff confirmed to court that he had not signed any forms authorizing deductions of funds from his salary towards the defendants because neither was any money ever deducted from him towards the said scheme.On further cross examination the plaintiff reiterated his earlier evidence that there was no letter of offer of employment between him and the defendant and no letter of acceptance of employment from him to the defendant. But to him the issue of letters of offer and acceptance did not apply because the Act says that all employees of the defendant upon the Act becoming operational. He plaintiff also maintained that there was no need for a letter from the Ministry releasing him to join the defendant services neither does he have evidence to show that he went to Kenya Broadcasting Corporation wanting to join their services but he was chased away. Neither does he have a personal number with the defendant. He however said that he wrote letters complaining why he was not offered employment but his copies got burnt which letters were not replied to by the defendants. He maintains the letter from the permanent secretary retired him illegally.

In re-examination the plaintiff reiterated his evidence in chief and cross examination and stressed the following points namely that exhibit 2 was written through the defendants Managing Director because he was his boss, he maintains he was an employee of the defendant because upon commencement of the Act creating the defendant all the employees of Voice of Kenya became employees of the defendant and it was not necessary for him to have a letter of offer and acceptance. That from what was shown to him in court shows that letters of offer were sent to employees illegally 2 years later. Lastly by accepting the letter which was forwarded through the defendants Managing Director the defendants Managing Director accepted and acquiesced as his boss. That he has been truthful when he said that he was a victim of tribal clashes during which arson he lost all his documents relevant to the case.

The salient features of the defence evidence is that they have never had the plaintiff as their employee, agrees they inherited staff from the Voice of Kenya but the plaintiff was not among them, that under section 16 and 17 of the parent Act Cap 221 Laws of Kenya the defendant was to offer letters of employment to the Voice of Kenya employees who were to respond within 6 months whether they accept the offer or not, he has knowledge that he plaintiff was never made such an offer because as at the time the letters were issued the plaintiff had already left the employment of Voice of Kenya . It is his stand that the plaintiff has wrongly sued them. He should have sued the Attorney General on behalf of the Ministry of Information and Broadcasting. They cannot pay the plaintiff pension in terms of the defendants pensions scheme because he did not contribute any money to that scheme and the plaintiff should be content with what he is earning from the government.

When cross examined D.W.1 agreed that the defendant is a predecessor of the Voice of Kenya but its operations were to be governed by the Act creating it and it is up to the court to determine whether the Act applied to the plaintiff or not. That even if it is admitted that he plaintiff worked for the defendant for 273 days he was still an employee of the Voice of Kenya as his services with the defendant had not been regularized in accordance with the Act that the two personnel file exhibit D 2, 3 all go to confirm that at all material times the plaintiff was an employee of the Voice of Kenya and not the defendant, that the letter forwarded through the managing director of the defendant does not support the plaintiffs claim as it was merely forwarded through him after it had been done by the right authority which is the Permanent Secretary Ministry of Information and Broadcasting.

In his re-examination he agreed that by the time the plaintiff was retired the defendant was operational but the instrument dealing with pension had not become operational. That the letter of offer and acceptance was a must in order to determine that one was an employee of the defendant and had accepted the terms of employment of the defendant and was willing to work for the defendant none of which acts were done by the defendant. The defendant was not party to the decision making to retire the plaintiff but there are correspondences on the matter in the two files showing how the decision was arrived at.

As part of the evidence the court has also had occasion to peruse the two personal files both general and confidential produced as exhibits D2 and D3. In D2 there is a copy of a letter dated 7th April 1966 addressed to the plaintiff Julius Masiva of P. O. Box 17055 Nairobi. The subject was an application as operator. |In the contents of the letter the plaintiff was being advised to call at college house and obtain copies of government form PSC 2 from their personnel office. The plaintiff was instructed to fill them and then make an appointment with Mr. P. Ngusi at Broadcasting House who was to give the plaintiff an aptitude test. Subsequent correspondence show that the plaintiff was successful in his interview and he was employed by the then Voice of Kenya . The letter of appointment is dated 5th January 1967. He was employed as a junior Technical operator with effect from 2nd November 1966. The plaintiff was confirmed in employment on 29th July 1970 after fulfilling the requisite conditions. The pension period was to start running from 2nd November 1960. After the said employment the file shows that the plaintiff worked for the Voice of Kenya at various stations just to name a few Mombasa, Nairobi, Kisumu, Nyeri and Eldoret. The file also shows that during that time the plaintiff was an active member of the Kenya Civil Servants Union and the Kenya Football Federation. There are also numerous correspondences between him and the employers concerning requests for promotions, requests for redesignation in his job and requests for redeployment in various other activities. The court will concentrate on correspondences which have a direct bearing on the proceeding herein.

On 4th January 1980 vide a letter Ref. VOK/PERS/116219/115 addressed to the plaintiff, the plaintiff was promoted to the rank of technical manager on the existing terms of employment. On 17th March 1986 the plaintiff addressed a letter to the Permanent Secretary Ministry of Information and Broadcasting P. O. Box 30025 Nairobi attention Mr. D. R. Mboya through the Director Film Production Department Box 30025 Nairobi.The contents are as follows:

“Plea for special consideration upgrading I am writing to you sir to register my humble plea for special consideration . I have honestly served the public sector since 1958 and I have made up my mind that I immediately clock fifty years which is twoyears to come. I respectfully leave the civil service.

Sir I joined the Ministry in 1966. I have successfully worked in Radio Studios, Radio OB, Television centre both in Nairobi and Mombasa. I have also worked in film department after successfully working in the presidential press unit. During this period Sir I have educated myself privately acquiring a Diploma in Journalism and Television. I did also attend short courses in Industrial relations, salesmanship and public administration. Though the knowledge I acquired has helped me work efficiently for the public sector the fees I paid was never refunded to me as stipulated in Code of Regulations.

It is therefore for this urge I am writing to register my humble pleas for you to use your good offices so that I could be graded higher than what I am today. Such high grade sir will enable me retire at a reasonable pension. Sir from the records you can see that though I have been a very good worker I have never earned my promotion or scholarship whether local or overseas. I have reached where I am by Presidential directives. My efforts to discover my shortcomings in the civil service from my supervisors have been fruitless. I have never been considered for courses even held at grey studio or Kenya Institute of Mass Communication. It is from such fore goings sir I am appealing to you to use your good office to consider my Diploma in Journalism and Television and upgrade me so that when I retire in two years time me and my family can benefit. Sir I am very optimistic that my humble plea will be considered favourably. Yours faithfully.

Signed.

Julius Masiva Obuga

Pers. No. 000190”

On 21st August 1987 the plaintiff addressed another letter to the Permanent Secretary Ministry of Information and Broadcasting Nairobi through the Director of Broadcasting Voice of Kenya Nairobi. The contents are “ Senior Technical Operator (Technical Manager)

I was employed by the Voice of Kenya in 1966 as a junior Technical operator. Because of my outstanding performance I was promoted to the post of Technical operator the same year.

After successfully working in Radio Studios including (CAR) Control Apparatus room, Television centers both in Nairobi and Mombasa and presidential press unit I was promoted to the post of Senior Technical operator (now known as Technical manager) During this period I attended a Public Administration course at Nairobi University.

Sir in 1982 I was appointed by your predecessor to tour the whole country collect data and recommend how to decentralize film services. My findings and recommendations were immediately implemented and subsequently fitted in the government development policy which I was appointed to be Senior Technical operator (Technical Manager) responsible for Rift Valley, Nyanza and Western provinces based at Eldoret.

In my area of operations there are several radio studios, film developments including mobile film vehicles which fell under my professional responsibility.

In addition to my public administration course at Nairobi University I have also a Diploma in Journalism and Television from U.K.

Sir I am therefore writing to request you to re-adjust my job group in accordance with the Director of Personnel Management 4 of Ref. DPM.SAL. COM. 13/20A VOL.II/(105)dated 16th February 1987. Sir as indicated to you earlier I wish to retire at the age of 50 years which it two years from now. The said adjustment will enable me retire at a higher job group. Yours faithfully,

Signed Julius Masiva Obuga

Senior Technical Operator

Western Kenya Eldoret”

The foregoing letter was replied to by a letter signed by R. Olando for the Permanent Secretary Ministry of Information and Broadcasting reference NO. 060190/88 dated 23rd September 1987 addressed to the plaintiff through the Director of Broadcasting Voice of Kenya. The contents are “Re Promotion I refer to your letter dated 21st August 1987 on the above subject and wish to inform you that there is no vacancy at the moment in the higher grade for which you could be considered. In addition such posts would nomally be advertised through the Public Service Commission and it will therefore be up to you to apply as and when you see a suitable post advertised. Yours faithfully

R. Olando

For Permanent Secretary”

The plaintiff was not satisfied with that answer and so he wrote a letter to the Permanent Secretary/Director of Personnel Management Office of the President Attention Mr. Wahiu through Permanent Secretary M. I. B. Nairobi the assistant Director Film Production Department. The contents are

“Re: Senior Technical Manager Vis Avi Technical Manager

On 21st August 1987 I addressed my Permanent Secretary in connection with the above subject matter. I copied the said letter to you and the secretary Public Service Commission. On 23rd September 19087 my Permanent Secretary replied to me. A copy of the said letter is here attached.

According to me the Permanent Secretary’s reply is very irrelevant to my humble request. Because information available is that your Personnel circular No.4 was fully implemented at the top. Therefore I see no valid reason why others affected including myself should not benefit.

Sir to my letter to the Permanent Secretary I did not ask for promotion. What I wanted the Permanent Secretary to do was to amend the records. In fact in terms of salary I am already on ‘K’. What I would have benefited would be the French (fringe) benefits that goes with scale ‘K’. I am therefore appealing to your good offices and perhaps talk to my Permanent Secretary in my favour.

I am currently in charge of Western Kenya that is Rift Valley, Western and Nyanza Provinces both for Radio and Television Technical operation in Eldoret. Those responsibilities have been increased by the additional of video filming and editing the same, showing of films in the region Yours faithfully

Technical Manager

Western Zone”

The plaintiff’s letter of 3. 11. 87 was forwarded to the Director of Broadcasting Voice of Kenya Nairobi vide the Permanent Secretary’s letter No. PERS/000110/VOL.III (102) dated 6. 1.1988. The salient feature of that letter is that the writer was asking the addressee to confirm that Mr. Obuga is correctly graded so that they may forward his letter to the Directorate Personnel Management with their comments

On 25th January 1988 a letter was written by a Mr. B. N. Muinde for Chief Engineer. The letter is reference No. V.O.K. File No. VOK/ENG/PERS/000190/137 addressed to the Director of Broadcasting Voice of Kenya . Attention Administrative Secretary. The contents are as follows

“Re: Appeal on upgrading Mr. Julius Masiva Obuga

Reference is made to the letter No. PERS OO0190/VOL. III (1O2) dated 6th January 1988 from Ministry Headquarters on the above stated subject and wish to inform you that before the scheme of service for technical officers became effective in 1981 titles/designations of technical officers were differently named from those proposed in the scheme.

After 1981 serving officers were required to adopt the new grading structure, designations and salary scales in the scheme of service as appropriate.

Prior to the effective date of the scheme of service for technical manager on Job Group “h” having been promoted to it on 21st November 1979. The scheme re-designed the grade of Technical manager as Senior Studio Technical Operator on Job Group“H’.

Apparently in the D.P.M. personnel Circular No.4 dated 16th February 1987 which dwelt on grading of posts in the Civil Service the grade of studio technical operators was placed on Job Group “K”.

Currently the Senior most officers in the technical operators section in the Ministry are graded as Principal Studio Technical operators in Job Group “J”. This grade is the same as the one grade as Technical operator 1 Job group “j” in the DPM personnel circular No.4 referred above.

Mr. Obuga is therefore correctly graded in the Ministry as Senior Studio Technical Operator in Job Group “H”. In this connection it should be noted that titles/designations given in the Directorate of Personnel Management Personnel Circular No.4 are not consistent with those in the Ministry and in particular those shown in the schemes of service. For instance the grade of Senior Technical operator Job Group ‘K’ as shown in Directorate of Personnel Management Personnel circular No.4 should be reflected as Chief Studio Technical operator on Job Group “K’. At present there are no officers appointed in this grade in the Ministry except that two are deployed to perform duties for this grade.

Therefore in order to avoid re-occurrence of similar appeals as the one under reference the ministry should harmonize gradings and titles/designations of all their officers with those in the Directorate of Personnel Management records as advised in personnel circular No.4 signed B. M. Muinde for Chief Engineer”

The foregoing memo was reacted to by a letter dated 24th March 1988 addressed to the AG. Chief Superintendent Engineer from the Director of Broadcasting office. It is signed by one E. Mulli Mbusi on behalf of the Director. The central message in respect of the same is that in the establishment of the Voice of Kenya in the Ministry of information and Broadcasting there was no post known as Senior Studio Technical operator.”

Next is a letter dated 5th May 1988 written by the same assistant chief Engineer P. M. Muinde to the Director of Broadcasting Voice of Kenya Nairobi through the Ag. Chief Superintending Engineer Voice of Kenya . The salient features of the said letter shows that the plaintiff Mr. Masiva had been transferred to Nairobi from Eldoret. He had allegedly appealed to have the transfer order rescinded because he only had 4 months to go before retiring from the civil service.

On the record there is also a letter dated 15th February 1989 addressed to Mr. Masiva the plaintiff through the Director Broadcasting Voice of Kenya written by J. G. Mwambiri for the Permanent Secretary’s.

The contents are “Re: Retirement under the “50” year rule

I refer to your letter dated 30th May 1988 requesting to retire voluntarily under the 50 year rule, and wish to inform you that your request has been approved. You will therefore be paid salary upto and including 31st August 1989 on production of a clearance certificate and proceed on retirement with effect from 1st September 1989. Please complete and return the enclosed commutation of pension and address forms in duplicate to enable this office process your retirement benefits. Your should also sign the enclosed Official Secrets Act declaration form (on leaving the service). Thereafter return it to this office together with a certified copy of your identity card.

Please note that in accordance with section N. 3(5) of Code of Regulation you should utilize all leave dues to you (3) three months before you proceed on retirement. I take this opportunity to thank you for the success that you have rendered to the government and in particular to this Ministry and wish you a happy retirement. Yours faithfully.

J. G. Mwambiri

For Permanent Secretary”

This letter was followed by leave form dated 7th April 1989. It indicates that the plaintiff had applied for 30 days leave with effect from 2. 5.89 to 13. 6.89. The forms also indicates that there were no leave days carried forward for the previous years and after taking the 30 days there were no leave days to be carried forward and it was duly signed.

The leave approval form was followed by a letter Ref. 000190/125 dated 13th October 1989 addressed to the plaintiff through the Managing Director Kenya Broadcasting Corporation Nairobi. The subject content are “ Re: Retirement from the service under ‘50’ year rule

The public service commission has directed vide its letter No.3/60/33/30 dated 20th September 1989 that you be retired from the service under the ‘50’ year rule. Accordingly you are hereby given notice to work upto and including 31st October 1989 and thereafter proceed on your retirement with effect from 1st November 1989.

Please complete the enclosed commutation of pension and address forms (in duplicate) and the official secrets Act Declaration from (on leaving the service) and thereafter return the same to this office together with a certified copy of your identity card for our further action.

You are asked to forward clearance certificate duly signed by the head of your department to facilitate payment of the October 1989 salary.

Yours faithfully

J. G. Mwambiri

For Permanent Secretary."

The court also perused the confidential file exhibit D2 which also contains correspondences relevant to the matters subject of those proceedings and which it is only proper that they be set out herein for ease of reference and also for purposes of the record. The court has traced a long letter dated 5. 11. 1986 Ref. PERS/000190 emanating from the plaintiff addressed to the permanent secretary Ministry of Information and Broadcasting through the District Information Officer Eldoret. The contents are “Retirement under the 5-0 year rule

I held discussion with your predecessor both in Eldoret and in his office. During these discussions I brought to his notice that I had studied privately and gained a Diploma in Journalism and Television and public administration.

I then pleaded with him to use his good offices to upgrade me as it had been done to other civil servants.

I also indicated to him my desire to retire when I reach 50 years. He advised me to write and enclose relevant certificates. The two departmental heads namely Director of film production department and Director of Broadcasting were accordingly informed. I was surprised on 1st July 1986 when I received Yours Ref. 000190/C (94) dated 24th June 1986.

I responded to the said letter on 11th July 1986 hence your letter of Ref. 000190/C/97 dated 10th September 1986. Sir I have checked my files and I detected no letter referred to in your above last reference written to you by me on 31st July 1986. However since your last referred to letter touches on my performance in this ministry I wish to accord my following observations.

1966 – I was recruited and assigned to Radio Studios at Broadcasting house within months I was able to man without supervision all continuity, talks and productions studios including CAR. I was able to train other Kenyans which made it easy to Africanize radio studios. When I joined these studios were dominated by “Wazungus” and Indians. I remember being one of those who recorded the radio news signature tune in grey studio.

1967 – since I had successfully handled radio studios I was picked to join Mr. Abdalla Jairara (now with P.P.U) to work at T.V. Studios. All major sections like U.T.R. master switcher studio B and Telecene were manned by “Wazungus” and “wahindis”

I was stationed on the (master switcher)mixing bench. This time some Senior officers had been tried here and let down the Ministry badly, the said Wazungus or Wahindis used such Africans to claim that No. black man could be able to mann the said sections. Sir within months I had not only managed to work on my own, I was able to train other Kenyans who came from KIMC like Richard Safari, Mpanda just to mention a few. Todate both radio studios and T.V. studios are 101% Kenyans.

1971 – I was transferred to Mombasa to join other staff in establishing the present sat house. I left Mombasa when it was fully operational.

1974 - I was posited to P.P.U to start sound work. Todate it speaks for itself.

1976 – I was posted to Technical Manager Newsroom in 1978 me, Mr. Akwera and the then Administrative Secretary Mr. Kirui stood firm against some elements in the Voice of Kenya who were not touring Nyayo path. This sindicate because of powerful connection, removed Mr. Kirui, me and Mr. Akwera were posited to Mombasa House to take over from where Mr. Adagala had left in the formation of the present Film production department.

1983 – The then Permanent Secretary in the Ministry Mr. Kiti assigned me and Mr. Gichinga of the Kenya News real to find out ways and means of decentralizing and how effectively establish television news coverage in the whole republic. This exercise was taken without prior knowledge about the present District Focus for Rural Development when our report was submitted to the Permanent Secretary it was accepted in total and Television cameramen were posted to most districts such set up is effectively contributing to the success of D.F.F.R.D. programme.

1983 - When I was posted to Eldoret to be Technical manager Western zone some officers who were suffering from inferiority complex misreported me that I had acquired offices illegally.

I am proud to say that due to my initiative the Ministry has been able to acquire offices in Eldoret which is good to make the ministry serve wananchi effectively. Some of those who were accusing me are ashamed to date because they are housed in the same offices.

I have witnessed other officers in the ministry being promoted without an extra academic qualifications. I know of a case where a subordinate staff was promoted to the post of assistant news editor. He does not have the qualifications I have.

I know I was not popular with the former chief engineer Mr. Macharia. I know of a group in the Ministry who one time made me arrested unlawfully and detained in a police cell for five days. Those officers continue to harass me using remote controls.

I have been very precise. I would have written pages and pages to depict what good I have done for this country and the ministry.

Those people I have worked with know that I am a good worker. Thereof a few who dislike my personality. Hence false accusations against me

. I am still therefore sir appealing to you to look at my files objectively and consider me for the said promotion.

The knowledge I received in journalism and Televisions has been utilized by the Ministry. Ask both the Chief News Editor Voice of Kenya and the Chief Producer Television productions and they will tell you how helpful I have been to them. Though the Ministry refused to refund my fees paid for at the Nairobi University when I attended the Public Administration courses the knowledge I received there has been of great use to the Ministry.

Yours faithfully

Julius Masiva Obuga”

The court has also traced in the file a photo copy of a letter dated 27th June 1986 Ref. 000190/C/(94) addressed to the plaintiff by a Mr. G.G. Kabaki for the Permanent Secretary. The contents of the said letter dated 27th June 1986 are “Retirement under the ‘50’ year rule

I wish to inform you that your compulsory retirement under ‘the 50 year rule” is under consideration and you are hereby requested to confirm if you would wish to retire voluntarily or if you wish to make any representations of a personal nature against your compulsory retirement in accordance with the provision of Regulations of the Code of Regulations.

If no representations is received from you within 21 days from the date of this letter this office will assume you have no objection to your retirement and the necessary action will be taken without further reference to you.

If you have any leave balance to your credit for this leave year, you are advised to take it immediately to avoid forfeiture” Yours faithfully,

G. G. Kibaki

For Permanent Secretary.

It appears the writer of this letter was not aware that the plaintiff had already written a letter dated 17th March 1986 expressing a wish to retire when he clocks 50 years and was only appealing for promotion to enable him retire comfortably.

The plaintiff reacted to the foregoing letter vide his letter dated 30th May 1988 addressed to the Permanent Secretary Ministry of Information and Broadcasting through the Director of Broadcasting. The contents are

“Retirement under the 50 year Rule. I am writing the last reminder in response to your letter of Ref. No. 000190/C(94) dated 27th June 1986I will be grateful if you can arrange and send me the retirement documents for my signature so as to avoid last minute rush. I have taken all my leave as stated in the last paragraph of your above quoted letter. Please expedite

Yours faithfully

Julius Masiva Obuga

P/No. 000190”

The plaintiff’s letter of 30th May 1988 was responded to by one J. K. Wanjau Ag. Director of Broadcasting in his letter dated 2nd June 1988 addressed to the Permanent Secretary Ministry of Information and Broadcasting. The salient feature of this letter is that the writer referred to the Permanent Secretary’s letter to the plaintiff ref. 000190/C(94) dated 27th June 1986 whereby the plaintiff had been asked to show cause why he should not be compulsorily retired under the 50 year rule and the Permanent Secretary was informed that the officer had written giving the Permanent Secretary to go ahead and process the retirement.

On 21st July 1988 another officer by the name Simeon M. Anabwani on behalf of the Director of Broadcasting wrote to the Permanent Secretary inquiring about the progress in the processing of the retirement of the plaintiff vide his letter Ref. VOK/dir/000190/C/36.

On 2nd August 1988 another officer by the name W. W. Muita Mrs. wrote a letter to the Director of Broadcasting informing him that according to records held by them the plaintiff was due to attain the age of 50 years on 18th August 1989. This was vide their letter ref. 000/90/C/122. An officer on behalf of the Director of Broadcasting passed on that information to the plaintiff vide their letter ref. VOK/DIR/00190/C/39 dated 8TH August 1988 informing the plaintiff was due to retire under the 50 year rule in August 1989 when he would attain the age of 50 years and not August 1988 as earlier communicated to him. The court has perused both files and finds that there is no trace of the plaintiffs reaction to the Director of Broadcasting letter to him regarding the change of the date of retirement.

On 15th February 1989 the plaintiff was again addressed by J. G. Mwambiri on behalf of the Permanent Secretary vide letter Ref. 000190/121 and the contents are as set out here under “Retirement under the 50 year rule

I refer to your letter dated 30th May 1988 requesting to retire voluntarily under the 50 years rule and wish to inform you that your request has been approved. You will therefore be paid salary upto and including 31st August 1989 on production of a clearance certificate and proceed on retirement with effect from 1st September 1989. Please complete and return the enclosed commutation of pension and address forms in duplicate to enable this office process your retirement benefits.

You should also sign the enclosed official secrets act declaration forms (on leaving the services) thereafter return it to this office together with a certified copy of your identify card.

Please note that in accordance with section No.3(5) of Code of Regulation you should utilize all leave due to you (3) three months before you proceed on retirement. I take this opportunity to thank you for the services that you have rendered to the government and in particular to this Ministry and wish you a happy retirement.

Yours faithfully

J. G. Mwambiri

For Permanent Secretary"

This was followed by another letter by the same writer J. G. Mwambiri on behalf of the Permanent Secretary addressed to the plaintiff Ref. No. 000190/C/133 dated 31st March 1989. The salient feature of that letter is that the plaintiff was being informed that according to records held in the office that he plaintiff was going to attain the age of 50 years on 18th September 1989. Further that it was not the intention of the Government to retain him in the service beyond that age. The writer was therefore according the plaintiff an opportunity to submit his formal retirement notice from the service under the 50 year rule. He plaintiff was further informed that on retirement he would be eligible for retirement benefits in accordance with the existing pensions rules as stipulated in Pension Act. The plaintiffs early response was requested for and it was indicated that it would be appreciated.

On 3rd July 1989 the plaintiff wrote a lengthy letter Ref. KBC/WK/HP 31/1/89 To Mr. Joseph Arap Leting E.G. H. Head of Public Service and Secretary to the Cabinet Harambee House Nairobi. In the said letter he plaintiff set out the history of how he came to be requested to retire under the 50 years rule. The contents of the said letter are as follows:

“Humble request to intervene

1. I am an indigenous Kenyan Civil Servant with the Ministry of Information and Broadcasting now Seconded to the Kenya Broadcasting Corporation. I am writing to appeal to you to personally attend to and intervene in what appears to be a sinister attempt to tamper with my hard won years of public service as here below explained.

2. I have put in 31 years of public service in this country. Eight in the Railways and Harbours and the rest in the central government service. In the recent past it has come to my notice that there has been a move by someone in the Ministry attempting to throw my public service down the drain under the guise of 50 year rule early retirement.

3. (a) In 1986 the Permanent Secretary Ministry of Information Broadcasting astounded me with compulsory notice directing me that he was retiring me from the Public Service under 50 years rule. He ordered me to take my leave balance to avoid forfeiture. Please see a copy of his letter Ref. 000190/C/94 of 27. 6.85 (27. 6.86). The tone and substance of the letter clearly indicate that the author was acting in bad faith and totally out of the very rules he was quoting.

(b) Sir the most revealing and disturbing fact is that the Permanent Secretary has all my personal details in my service file. He has my birth certificate indicating that I was born on 19. 8.39. Therefore by any strech (stretch) of mind I could not have been 50 years old on 27. 6.86. I respectfully replied his letter while awaiting his next step. Could you please find out from the Permanent Secretary what became of this compulsory notice he served on me?

4. On February 15th 1989 the same permanent secretary vide his letter Ref. 000190/21 revived the subject but twisted the issue to indicate that I had requested him to retire at 50 years of age. I enclose a copy of his letter to me for your reference. Once again he directed me to proceed on leave months before retirement.

5. A month later the same Permanent Secretary served me with another letter through the Managing Director Kenya Corporation Broadcasting (KBC) telling me that the government did not intend to retain my service beyond 18. 9.1989 on my attaining 50 years of age. He directed me to submit a notice to retire. See his letter Ref. 000190/133 of 31. 3.89.

6. A close look at all the three letters by the Permanent Secretary to me definitely do not conform to the laid down procedure of retirement. And I find it hard to believe that the author of these letters a seasoned and high experienced officer could have been acting out of Regulations as such. It is this in mind that I wish to think that someone in the Ministry has been trying hard to throw me out of service.

Sir the truth of the matter is that there are still some remnants of the clique who were bent on destroying government news and the Presidents news. When our beloved President His Excellency Daniel T. Arap Moi came to power in 1978 we had Mr. Kirui as the Administrative Secretary to Voice of Kenya . I was in the Newsrooms as Technical manager together with a Mr. Caleb Akwera. The three of us discovered these misguided clique and exposed them. It therefore came as no surprise when Mr. Kirui was removed from Voice of Kenya .Caleb Akwera was removed from the Newsroom and later forced to retire under the 50 year rule. I was removed from the newsroom to start the present Film Production at Mombasa House. That apart after the 1982 disturbances every officer was expected to pass any information which was vital. I happened to have given to the security information about the roles some members of the said clique had played in the disturbances. It is apparent that the clique came to know about this. It is these same clique who have stepped up their campaign to molest me to throw me out of government service. Sir a look at my file will show that I have been subjected to for too many transfers perhaps more than any one else in the Voice of Kenya .

On the other hand members of the evil clique continue to protect each other in the Ministry at the expense of the government. There are cases when one of them absconded from the Public Service and worked for the Standard Newspapers on failing to make headway there he was gladly taken back into Voice of Kenya to continue as although he had never broken his service.

Recently some of the clique members in the North Rift were found using government E.N.G. on private non official work. Their masters in the head office took pains to conceal the offence and protected their henchmen. I am prepared to substantiate my allegation. If needed and called upon to do so.

Sir just before the move to retire me began I had applied to the Permanent Secretary to raise me to Job Group K so that I could retire on a reasonable scale. This could also help me repay N.H.C. loan comfortably.I have never received any reply to this application. I am therefore appealing to you as the head of the Civil Service and Permanent Director of Kenya Broadcasting Corporation to personally look into my case and advise me. I have given faithful and devoted service to my country. I would not like it tampered with unduly.

Sir on the 19th February 1989 the Kenya Broadcasting Corporation Act 1988 became operational. Hence all assets, employees, movable and immovable (unmovable) properties of theVoice of Kenya held by the Government was vested on Kenya Broadcasting Corporation without further assurances (see part IX sub-head Transitional Provisions para 54. Hence unless otherwise I became a Kenya Broadcasting Corporation employee since then.

The Permanent Secretary and his clique should give the corporation a chance to implement part IV – staff para 15 (2) read together with para 16(V) and (2) upto para 17 (1) to (4) and since I have attained 50 years of age I will then voluntarily retire accordingly.

Yours faithfully Julius

Masiva Obuga”

On 3rd August 1989 one D. K. Ole Nasieku the Ag. Managing Director wrote a letter to the Permanent Secretary Ministry of Information and Broadcasting whose contents are “Mr. Julius Masiva Obuga – P/No. 000190/C

I refer to Mr. Obuga’s letter ref. No. KBC/W/C/HPA/1/89 OF 3RD July 1989 addressed to Mr. J. T. Arap Leting Permanent Secretary/Secretary to the Cabinet and head of Civil Service, in which this officer has requested Mr. Leting to intervene in his retirement case.The record of this officer is full of controversy and it is not a good one. This is to advise you that the Kenya Broadcasting Corporation will not require his services. Yours truly, Kenya Broadcasting Corporation

D. K. Ole Nasieku

Ag Managing Director”

At the end of the trial only counsel for the plaintiff filed written submissions. The salient features of the same are that

1. The plaintiffs case is that he was an employee of the defendant at all material time with the relationship between the parties having been created in 1988 by an Act of Parliament vide a legal notice number 15 of 1988 whereby at paragraph 9 of the said Act is stated in sub section (1) that the corporation shall assume the broadcasting services of the Kenya Government operations under the Kenya Broadcasting Corporation (Nationalization) Act (now repealed).

2. That prior to the defendant assuming the services of the Government the plaintiff was an employee of the Voice of Kenya whose services including its employees were taken over by the defendant by the creation of the said Act by virtue of section 54 (8) and part (iv) of the said Act.

3. That it has been established and the defence does not deny that all along the plaintiff was an employee of the Voice of Kenya and was so at the time when the said Act establishing the Kenya Broadcasting Corporation which assumed the functions and the staff of the Voice of Kenya came into operation . This is confirmed by the fact that it has been shown and admitted by the defendant that the plaintiff worked for a period of 273 (two seventy three days) for the defendant before being unlawfully retired from his employment.

4. That it was contended by the defendants in their defence that the plaintiff was an employee of the Public Service Commission under the Ministry of information and Broadcasting and was hereby attached to the services of the defendant for a period of (273) days from 1st February 1989 to 31st October 1989. In response to this they submit that it is common knowledge and a well known fact that the Kenya Broadcasting Corporation (defendant) falls under the Ministry of Information and Broadcasting just as much as the Voice of Kenya was before it was repealed and the defendant established for this reason the defendant cannot turn around and tell this Honourable court that the plaintiff was working for the Ministry of Information and Broadcasting while closing an eye to the fact that although it is a corporation it falls under the Ministry of Information and broadcasting.

5. That the present statute that governs the operations of the defendant became operational on the first February 1989 the time when the defendant admits that the plaintiff was attached to it for a period of (273) days before he was wrongfully retired which goes to establish as a fact that the plaintiff at all material time was an employee of the defendant.

6. It has been contended by the defence that the letter of the unlawful retirement was signed by the Permanent Secretary Ministry of Information and Broadcasting and therefore the plaintiff was retired by the Public Service Commission. To this they submit that that contention on their part is negated by section 4 subsection 1 of the said Act which provision goes to show that the alleged Permanent Secretary acted as a mere member of the board of directors of the defendant and not as the Permanent Secretary in the Ministry of Information and Broadcasting and they content that it follows that by virtue of what they have said the said Permanent Secretary was performing administrative matters of the defendant who could not perform judicial function for the defendant and the Kenya Broadcasting Corporation Act 1988 clearly shows that the said Permanent Secretary acted on behalf of the Managing Director.

7. They contend that the plaintiff has established beyond reasonable doubt that he was an employee of the defendant at all material times until the unlawful retirement from the employment. They contend the plaintiffs retirement is unlawful because of the following factors:-

(i) According to the retirement benefits scheme of the defendant it is stated clearly that the retirement age is 55 years. They contend that the plaintiff has established that when he was unlawfully retired he was 50 years of age which means that he had five (5) years to go before the defendant could legally retire him.

(ii) They content that had the defendant acted lawfully the plaintiff could have attained the following namely promotion, salary increases, higher allowances.

(iii) If they go by the right retirement age the plaintiff would have been appointed to job group ‘M’ to Job group “l” whereby his salary would have been increased by virtue of that unlawful retirement by the defendant the plaintiff was deprived of the sum of Kenya Shilling 83,580.

(iv) The plaintiff was also entitled to owner occupied house allowance of Kenya shilling 140,000. 00 as a result of salary adjustment in lieu of promotion as aforesaid.

(v) It is also the plaintiffs contention that by virtue of the said salary increments leave allowances would have gone up to Kenya shilling s 108,960. 00.

(vi) They also contend that between February 1987 to February 1989 the plaintiff also lost owner occupied house allowance in the sum of Kenya shillings 154,580. 00 as a result of the defendants unlawful acts.

(vii) They contend that the plaintiff has shown that when the defendant assumed the operations of the Voice of Kenya he had been promoted to Job Group “L’ from Job group H where by he would have been paid as here under

(a) Salary 135,080. 00

(b) Owner occupied house allowance Ksh. 154,800. 00

( c) Leave allowance Ksh. 108,960. 00 which are in accordance with section 54 (7) of the Kenya Broadcastig Act No. 15 of 1988.

8. They contend that the defence had at the hearing of the suit been referring to the Kenya Broadcasting Corporation Act Chapter 22 Laws of Kenya which had been repealed upon the gazzeting of the Kenya Corporations Act No. 15 of 1988 which became operational on the first February 1989 on the basis of the foregoing counsel submitted and reiterated that the plaintiff had established his case on a balance of probabilities of success and therefore prays for the reliefs sought in the further amended plaint.

In the assessment of the evidence the court has taken an overview picture of the pleadings, the evidence adduced by both sides both oral and documentary, it has also taken into account the submissions of the plaintiff’s counsel and its findings are as set out here under. A reading of the plaintiff’s plaint and his evidence creates an impression in the mind of the court that he was complaining of events which took place prior to his alleged unlawful retirement and what he lost financially as at the time of his alleged unlawful retirement. However upon perusal of the plaintiffs counsels submissions it has come out clearly that the plaintiff’s complaint can be summed up as being that because of the alleged unlawful retirement the plaintiff lost what he would have earned from the defendant had his services been retained by the defendant and he plaintiff been legally and lawfully allowed to work for the defendant till he retired at the age of 55 years. While on the other hand the courts understanding of the defence case as set out in both the original defence and the amended defence is that the plaintiff is the author of his own retirement as at the time he was retired, the said retirement was not unlawful but lawful, that although they admit that the defendant became operational before the plaintiff was retired and indeed the plaintiff worked for the defendant for 273 (two hundred and seventy three days) nonetheless measures were not put in place to absorb his services into the defendants service in accordance with the statute which had given birth to the defendant or brought it into its existence. The court further observes that the plaintiff and his counsel have countered that by saying that originally the plaintiffs employer was Kenya Broadcasting Corporation under the Ministry of Information and Broadcasting and when it was nationalized is when it became the Voice of Kenya which was later changed into a corporation and reverted to the old name. To them it is one and the same thing and all it has done is just to change clothes evidenced by the fact that it still falls under the same Ministry of Information and Broadcasting. It is further the argument of the plaintiff that the errors of omission and commission at the time of transition of both duties obligations employees inclusive of him, movable and immovable properties from the Voice of Kenya the defendant and that that is the point where injustice was meted out to him which actions grieved him leading to these proceedings through which he seeks redress for those actions.

Since the plaintiff’s record with the defunctVoice of Kenya is inter twined with much what would have formed his service with the defendant it is necessary for the court to make findings on the same as the proceedings are cemented on the same and a resolution to the grievances cannot be found without reference to the said record. The major aspects are already set out elsewhere in this judgement and the courts observation on the same are as stet out hereunder.

1. There is no dispute that the plaintiff was employed by the Voice of Kenya under the ministry of Information and Broadcasting.

2. There is no dispute that vide letter reference No. VOK/PERS/110219/115 dated 4th January 1980 the plaintiff was promoted to the grade of Technical Manager on Job Group ‘H’ and it is the same job Group “H” on which he was retired.

3. There is no dispute that the issue of the controversy of the plaintiffs retirement started long before the defendant came into being or existence. This is confirmed or proved by the fact that

(i) The plaintiff wrote a letter of his own volition to the Permanent Secretary dated 17. 3.1986 pleading with the Permanent Secretary Ministry of Information and Broadcasting that he be upgraded from Technical Manager to Senior Technical Manager. A further observation of the contents of the said letter by the court shows that as at the time it was written the plaintiff by his own words had only two years to clock 50 years and him the plaintiff had taken the first initiative to inform his employers that it had been his wish to retire from the civil service at the age of 50 years and he was therefore asking to be upgraded so that he could retire from the service comfortably in terms of retirement benefits.

(ii) It is further observed that it is not clear whether the Permanent Secretary was responding to the plaintiffs letter of 17. 3.86 or not but the said Permanent Secretary wrote a letter dated 27. 6.1986 to the plaintiff asking him to show cause why he should not be retired from the Public service under the 50 year rule. However it is to be observed that the contents do not show what prompted the Permanent Secretary to write the said letter.

4. There is no dispute that in the year 1988 vide his letter dated 30th May 1988 the plaintiff showed a willingness to retire from the Public Service at the age of 50 years apparently in response to the Permanent Secretary’s letter of 27. 6.1986 and in furtherance of his letter of 17. 3.1986 he plaintiff asked for the retirement forms to be sent to him to fill and also asked the department to expedite the same to avoid last minute rash. He plaintiff also confirmed that he had taken all his leave entitlement prior to that. Infact it is this courts findings that from the observation of the correspondences concerned the plaintiff would have retired from the Public Service in the year 1988 had it not been discovered that infact he was to attain the age of 50 years in the year 1989 and not 1988. This is evidenced by the contents of the letter reference No. 000190/C/122 of 2nd August 1988 whereby one officer by the name A.W. Muita (Mrs) wrote to the Director of Broadcasting Voice of Kenya informing them that the plaintiff would attain the age of 50 years on 18th August 1989. The plaintiff was informed of this revelation vide letter ref. No. VOK/dir/000190/c/39 of 8. 8.1988 emanating from the Office of Director of Broadcasting. A perusal of both open and confidential files of the plaintiff which were exhibited as exhibit D 2 and 3 show that as at August 1988 the plaintiff had not recented his earlier letters of wishing to retire from the Public Service at the age of 50 years neither had he raised any complaint to the Permanent Secretary’s letter to him asking him to show cause why he should not be compulsorily retired from the Public Service at the age of 50 years.

5. There is no dispute that by virtue of the plaintiff attaining the age of 50 on 18th August 1989 he was still under 50 years as at the time the defendant came into being in February 1989 and was therefore still in their service and continued so for a period of 273 days as admitted by them.

6. There is no dispute that after the defendant corporation was born the issue of retirement of the plaintiff upon attaining the age of 50 years was still pursued. This is confirmed by the fact that on 15. 2.89 vide letter ref. No. 000190/121 the Permanent Secretary wrote to the plaintiff intimating that they had approved his retirement from the Public Service under the 50 year rule as per the contents of the plaintiff’s own letter dated 30. 5.1988. this was followed by another letter dated 31. 3.1989 by the same Permanent Secretary to the plaintiff indicating their stand that they do not wish to retain the services of the plaintiff beyond the 50 years and he should submit his retirement forms for processing.

7. There is no dispute that the first move made by the plaintiff to resist his own move to retire upon attaining the age of 50 years and the defendants wish to have him retired from the Public Service when he attains the age of 50 years either voluntarily or compulsorily came vide the plaintiffs letter dated 3. 7.89 to the Head of the Civil Service and Secretary to the cabinet ref. KBC/WK/HHPS/1/89. The salient features of this letter are that :-

(i) The plaintiff never mentioned in this letter that he was the first one who in the first instance had indicated to his then employers that he wished to retire from the Public Service as soon as he clocked the age of 50 years.

(ii) In this letter the plaintiff maintained that he had all along had a good record of work and failed to disclose that at times he had been reprimanded for shortcomings such as being absent from duty without permission. It is however noted that from both files he was at times commended for good work done. He blames his woes to a clique in the department who were opposed to the government.

(iii) In this letter the plaintiff confirms that the Voice of Kenya as a department had become extinct and its functions taken over by the defendant.

(iv) He plaintiff confirms that as at that point in time he was writing that letter the defendant had not complemented the transitional provisions translating his services from the Voice of Kenya terms to those of the defendant.

(v) There is no complaint raised concerning leave earned and not taken as at that point in time.This is confirmed by his own letter of 30. 5.1988 to the effect that the had no leave arrears not taken. Further confirmation is from the leave form for the year 1989 contained in his file which shows that he had no leave days balance carried forward to 1989 and there were no leave days balance carried forward after 1989. Infact the issue came out clearly in the plaintiffs own pleadings in the further amended plaint paragraph 7(e) which shows that the leave unpaid for that he was complaining about was the leave that he would have earned between 1989 to 1994 when he would have retired upon attaining the age of 55 years. As stated above the leave for 1989 was taken vide leave form No. Ref. 000190/123 of 7. 4.1989 which is self explanatory that there was no leave days carried forward and no leave days balance left after the leave for 1989 was taken.

8. There is no dispute that contrary to the submissions of the plaintiffs counsel that the increments and loss of earnings complained relate to the period the plaintiffs services should have been retained by the defendant upon transition the plaintiffs pleadings speak otherwise. Paragraph 4 C of the further amended plaint pleads that he plaintiff was employed by the defunct Voice of Kenya as a Senior Studio Operator, paragraph 4(d) pleads that in the year 1987 the plaintiff rose to job group L and was supposed to earn an increment in terms of what was shown there, paragraph 6 pleads the same, paragraph 6(a) pleads the salary the plaintiff was supposed to earn as at the time of the illegal termination, paragraph 6(b) pleads that he was not paid arrears earned. A perusal of both the open and confidential files reveals that indeed in the year 1980 vide letter ref. VOR/PERS/110219/115 OF 4. 1.80 the plaintiff was promoted to the rank of Technical Manager job group “H”. Further perusal of the record shows that vide the plaintiffs own letter of 17. 3.1986 already set out in this judgement in full he was pleading with the authority to upgrade him from Technical manager to Senior Technical manager. This was followed by the plaintiffs own letter dated 21. 8.1987 whose contents are also set out elsewhere in this judgement asking the permanent secretary to have his job group readjusted. It is on record that the permanent secretary replied vide his letter ref. No. 000190/88 of 23. 9.19987 in which it was stated that there was no vacancy the plaintiff could be promoted to and secondly such jobs are usually advertised by the Public Service Commission and he plaintiff should be on the look out for such advertisements and then apply for the same. The plaintiffs own letter of 3. 11. 1987 whose contents are already set out in this judgement still goes to show that he plaintiff as at that point in time was appealing to the authorities to be upgraded. Further the contents of the permanent secretary’s letter ref. PERS/000190/VOL.II/(120) dated 6. 1.88 No decision had been taken at that point in time as regards the upgrading of the plaintiff from Job group “H” to Job Group J or K. On the same subject there is letter ref. VOK/ENG/PERS/000190/137 dated 25. 1.1988 which shows that the plaintiff was asking his superiors to upgrade his job group in line with the Director of Personnel Circular No.4. It is indicated in that circular letter by the writer that the Job groups indicated in the Director or Personnel circular No.4 do not tally those in their ministry and maintains that the plaintiff was correctly designated as Senior Technical operator Job Group “H”. The foregoing letter was countered by the letter from the Director of Broadcasting dated 24. 3.1988 in reply to the Acting Chief Engineers letter of 25. 1.1988 that they do not have an establishment for the Job of Senior Studio Technical operatorThe foregoing outline of the correspondences therefore go to show that it is not true as pleaded by the plaintiff in the paragraphs already set out above that he was promoted to job group “L or K” in the year 1987 and earned increments which were not paid to him as at the time of the unlawful retirement from his employment. He plaintiff conceded in cross examination that he had no documents to show that he had been promoted to another job group other than job group “H” because his documents were destroyed during the 1992 clashes but records held by the defendant would show the correct position. The said records have shown that the plaintiffs pleadings are contrary to the correct position displayed by the said records. These records were produced in evidence by the defence and there was no allegation raised that the same had been tampered with. The court has viewed the same and finds no evidence of tampering either real or imagined and so finds that these records display the correct state of affairs of the plaintiffs job group description as at the time of retirement which was job group “H”. This is further fortified by the plaintiffs own conduct as admitted by him in cross examination that despite his allegation that he was upgraded in 1987 he took no action to compel the defunct Voice of Kenya by taking them to court to compel them to re-adjust the job group and pay him his increments till the time he retired from their service.

9. There is no dispute that the plaintiff was retired from the public service under the 50 year rule. In paragraph 9 (a) of the further amended plaint the plaintiff pleads that he did not want to retire at the age of 50 years and he therefore never made any voluntary application to that effect. This pleading is contrary to the contents of the plaintiffs own letter of 17. 3.1986 whereon his own volition intimated to his employers that it was his wish to retire from the public service as soon as he clocks 50 years of age which letter had not been recented by the plaintiff as at the time he was retired. Secondly the plaintiffs letters for upgrading had an element of retirement from the public service under the 50 year rule in them. It is clear from their contents that the reason why the plaintiff was appealing for upgrading was because he wanted to retire on a higher grade and scale so that he can get good pension commensurate to the good work he had put in over the years. Thirdly that pleadings in contrary to the plaintiffs own letter of 30th May 1988 whereby he asked for the retirement forms to be sent to him to fill before hand to avoid last minute rash. In the same letter he asked the employers to expedite the process of his retirement. Infact as stated elsewhere in this judgement the first time the plaintiff showed change of mind on his request to retire under the age of 50 years was when he wrote the letter to the Head of the Civil Service and secretary to the cabinet seeking his intervention in the matter.

The foregoing therefore shows that indeed the plaintiff himself was the first prime mover of the idea of him retiring from the public service under the 50 year rule and it is therefore not true as pleaded by him that he never applied to retire voluntarily under the 50 year rule. Indeed he never applied to the defendant to retire voluntarily under the 50 year rule but it is on record from his own pleading and evidence that the incoming employer the defendant was to carry on from where the defunct Voice of Kenya left.

10. There is no dispute that the Act No. 15 of 1988 which gave birth to the defendant came into effect in February 1989. A perusal of the Act itself shows that it commenced on 1st February 1989. It therefore follows that by the date of 15th February 1989 when the Permanent Secretary wrote the letter Ref. 00190/121 asking the plaintiff to fill the retirement documents under the 50 year rule the defendant was already operational. There is no dispute that the Permanent Secretary’s letter of 15. 2.89 referred to the plaintiffs letter of 30. 5.1988. it is not disputed that by this time the plaintiff had changed his mind and asked the Head of the Civil Service and Secretary to the Cabinet seeking his intervention.There is no dispute that the head of the civil service never intervened to save the job of the plaintiff. It may be because the Ag. Managing director wrote letter Ref. KBC/MD/000190/L/46 OF 1. 8.1989 to the effect that the plaintiffs file is full of controversy and so they were not willing to retain his services. Which letter was followed by the letter Ref. 000190/125 of 13. 10. 1989 finally retiring the plaintiff from the service of the defendant. The letter is made out on the letter heads of the Ministry of Information and Broadcasting and signed by the Permanent Secretary. The plaintiff was thus aggrieved by the events leading to his retirement hence these proceedings. The grievances can be summed up as:-

1. He never applied to retire voluntarily and so the defendant was wrong in retiring him in the manner it did.

2. He should have worked and retired upon attaining the age of 55 years.

3. The defendant upon coming into existence assumed the duties and obligations of the former employer the defunct Voice of Kenya and by virtue of that assumption the defendant should have paid him his incremental arrears.

4. Upon assumption of the duties and obligations of the defunct Voice of Kenya inclusive of employees he plaintiff automatically became an employee of the defendant which fact was admitted by the defendants that he worked for them for 273 days and further confirmed by the fact that the retirement letter exhibit 2 dated 13. 10. 1989 was sent to him through the managing director of the defendant. That exhibit 6 the birth certificate shows when he was born and it is clear that as at 13th October 1989 he was not 55 years of age. On the basis of the foregoing the plaintiff says that his retirement was illegal and unlawful and so he is entitled to the reliefs he is seeking. He relies on the staff retirement benefits exhibit D 1 and section 54 of the Act Cap 221 Laws of Kenya.

The defence agree that indeed the defendant took over the function of the defunct Voice of Kenya inclusive of employees, that the plaintiff was one of those employees taken over and he indeed worked for them for 273 days but denies that the transition from the employment of the defunct Voice of Kenya to that of the defendant was automatic. They contend that there were transitional processes to be gone into whereby the defendant offered letters of employment to the officers of the defunct Voice of Kenya seconded to them.That the said offers were to be given 6 months within which to make an election to join the employment of the defendant and its staff retirement benefits scheme and agree to have deductions made towards the said scheme before benefiting from the same. They contend that those processes were put in place two years after the plaintiff had left and so the plaintiff never became their employee and as such he has no case against them. They rely on the plaintiffs own admission in cross examination that the was never sent a letter of offer of employment and never signed any, he never accepted the conditions of the staff retirement benefits scheme of the defendant and never contributed any money to that scheme and that he never received a letter of secondment seconding him to the services of the defendant from the defunct Voice of Kenya .

The court had the occasion of perusing the booklet exhibit D 1 and finds at the out set that the scheme was to commence on 1st July 1991 which was almost two years after the plaintiff retired or was or had been retired. This is shown on page 6 of the said booklet.On the same page it is stated that eligible employee means an employee in the service who is a citizen and who has been notified by the corporation of his appointment to the Permanent and Pensionable establishment of the corporation. This means that in order to be eligible to benefit under the scheme one must have been in the service of the corporation as at the time of the commencement and one must have been notified by the corporation of his appointment to the Permanent and Pensionable establishment of the corporation. Applying this to the case of the plaintiff it is evidently clear that the plaintiff was not in the employment of the defendant as at 1. 7.1991 when the scheme was born secondly he had not been notified by the corporation of his appointment to the permanent and pensionable establishment of the corporation. Under clause 3 on page 8 one joined the scheme by filing in an application form authorizing the administrators of the scheme to deduct contributions from the salary. When this clause is applied to the plaintiffs case it is clear that he admitted that he never filled any application form authorizing the defendant to deduct money from his salary towards the scheme clause 10 on page 11 shows that the normal retirement is 55 years and under clause 2 on page 8 the employees who could contribute to the scheme are those who are 18 years and not 54 years of age.The finding of the court is that the terms in exhibit D 1 the staff retirement benefits scheme of the defendant did not apply or cover the plaintiff as at the time of his retirement from the services of the defunct Voice of Kenya or thereafter and so exhibit D 1 does not assist the plaintiff’s case.

The plaintiff also relied on section 9(1) of the said Act which simply states that the corporation shall assume the broadcasting services of the government operated under the Kenya Broadcasting Corporation (nationalization) Act now (repealed). The plaintiff also relied on section of the Act. Section 54 (1) states that the funds and other movable and immovable property held by the government for and on behalf of the Voice of Kenya shall be vested by virtue of this sub section without further assurance in the corporation. Section 54(3) states that all rights powers, liabilities and duties whether arising under any written law or otherwise vested or imposed on or enforceable by or against the government for or in respect of the Voice of Kenyashall be transferred to. Vested or imposed on or enforceable by or against the corporation section 54(8) the one relied on heavily by the plaintiff states “unless the Board otherwise directs and subject to part IV all persons who are members of the staff of the Voice of Kenya immediately before the coming into operation of this Act shall be members of staff of the corporation if they so desire and shall be deemed to have been appointed under this Act.”

A reading of this provision shows that it does not give the staff of the defunct Voice of Kenya automatic staff membership to the defendant. It states clearly that those who were staff members of the defunct Voice of Kenya became staff of the defendant upon the Act creating it coming into effect subject to the provisions of part IV of the Act and secondly if they so wish. It means that in order for the plaintiff to qualify under this provision he had to be willing to desire to be one and secondly he has to comply with the provisions of part IV. As regards the desire to be one there is no doubt about this on the part of the plaintiff evidenced by the fact that he wrote a letter to the Head of the Civil Service asking to intervene so that he does not retire at the age of 50 years. As for the second condition the court has to determine whether the conditions set out in section 16 and 17 of part four were satisfied in regard to the plaintiff. Section 16 (1) of the Act states “the corporation shall subject to this section employ such public officers as may be seconded by the government.

2. The government may at any time determine the secondment of any public officer who has been seconded to the service of the corporation under the provisions of this section and the corporation may request the government to determine the secondment of any such officer.

Provided that no such request shall be made unless the corporation has first given to the officer written notice of the corporation intention to make the request”

A reading of section 16 shows that there were three steps to be taken by the parties concerned in determining which officer was to work for the corporation or not. The first prerequisite was that the particular officer had to be seconded by the government.Applying that to the plaintiffs case herein the records show that the government of the day chose to retire the plaintiff rather than second him to work for the corporation. The plaintiff agreed in cross examination that he was not given a letter of secondment to work for the corporation by the defunct Voice of Kenya . The court has also perused both the open and confidential files of the plaintiff and it has not found any letter from the defunct Voice of Kenya seconding the plaintiff to work for the corporation.

The second prerequisite is that the government had a discretion to second an officer to work for the corporation and it also had discretion to withhold or determine that secondment. Likewise the corporation also had a discretion to accept the secondment or determine it. Applying section 16 (a) of the Act to the case of the plaintiff shows that the corporation chose not to retain his services vide their letter ref. KBC/MD/000190/L/46 of 1st August 1989. The proviso to section 16 does not apply to the plaintiff as the first two prerequisites set out in section 16 were not or had not been invoked in his favour as at the time of the retirement complained of.

Section 17 of the Act states“The corporation shall within a period of two years and six months from the date of commencement of this Act offer to every officer seconded to the corporation from the service of the government and whose secondment has not been terminated under subsection (2) of section 16 employment by the corporation from such date upon such terms and conditions as may be specified in the offer

2. Any officer who fails to accept in writing an offer made to him by the corporation under sub section (1) within six months after the offer has been made to him shall be deemed to have refused the offer.

3. If an officer refuses an offer made to him by the corporation in accordance with subsection (1) the obligation to employ the officer imposed on the corporation by subsection (1) of section 16 shall determine upon the expiration of the period of six months following the date of the refusal.

4. When an officer accepts an offer made to him by the corporation under subsection (1) his service with the corporation shall be deemed to have commenced and his service with the government to have ceased on the date specified in that offer.” Applying the provisions of section 17 of the Act to the plaintiffs case shows that those provisions do not assist the plaintiffs case because by his own admission in cross examination the government never seconded him to the service of the corporation.

2. The corporation never gave him a letter of offer for him to offer his services to the corporation.

3. The corporation never accepted the plaintiffs offer to work for the corporation.

The net result of the foregoing assessment shows that the plaintiffs case against the defendant fails on the following grounds.

1. As per records the plaintiffs job was up graded to job group “H” in which job group he plaintiff was retired.

2. The plaintiff was the first one to set the ball rolling by expressing a desire to retire from the public service at the age of 50 years which communications were never recanted during the lifetime of the defunct Voice of Kenya his then employers.

3. The records show that the plaintiffs job group was never upgraded to either job group “L” or “K” in 1987 and so he plaintiff never suffered any loss of increments. This is explained by the fact that records exist to show that he plaintiff has all along been pleading with the employers to upgrade him which pleas were declined because jobs for upgrading used to be advertised by the public service commission and the plaintiff was advised to apply for them upon such advertisement taking place and secondly what he plaintiff was asking to be upgraded to did not exist in their establishment.

4. The plaintiffs attempt to have the then Head of the Civil Service intervene to arrest his impending retirement under the 50 year rule did not receive the blessing of that officer.

5. Despite the fact that he plaintiff had not retired as at the time the defendant came into being and secondly despite the fact that he worked for the defendant for 273 days the requirements of the Act set out in section 54 (8) as read with section 16 and 17 of the same Act were not set in motion in favour of the plaintiff in order to have the services of the plaintiff with the defunct Voice of Kenya translated to be the services to the defendant.

6. The staff retirement scheme for the defendants officers is not applicable to the plaintiff because it became operational long after the plaintiff had retired from his employment. Secondly it applies to officers who were absorbed into the service of the defendant in accordance with the provisions of section 54 (8) as read with section 16 and 17 of the Act which provisions were not invoked and or complied with in favour of the plaintiff. Thirdly It applies to those who have accepted to contribute towards it and have infact contributed towards the scheme a fact the plaintiff admitted not to have done. In the premises the plaintiffs suit against the defendant is dismissed with costs to the defendant.

The reasons for the delay in the writing of the judgement as gathered from the trial judge then seized of the matter are as follows:

1. Work overload and pressure of work before proceeding on transfer to a new station.

2. The defence counsels failure to file written submissions and failure to intimate to the court that they would not do so.

3. The subject was among the matters that were pending writing judgement as at the time the trial judge then seized of the matter was transferred to a new station and a request by her to the authorities concerned to be given leave or sufficient time to clear pending work before proceedings to a new station was declined.

4. The workload at the new station the trial judge then seized of the matter was transferred to was overwhelming and left little time or no time for the then trial judge seized of the mater to attend to work from the former stations.

5. Exhibits were misplaced in the strong room at the former station and were traced belatedly.

Dated, read and delivered at Eldoret this ……………………….. day of ……………………. …………..

R. NAMBUYE

JUDGE

Dated and delivered at Eldoret this 3rd of November 2004.

JEANNE GACHECHE

JUDGE

Delivered in the presence of :

Mr. Keter for plaintiffs.

No appearance for defendants.