[2024] KEELRC 13500 (KLR)

Mwangi v Ethics and Anti Corruption Commission (Cause 885 of 2017) [2024] KEELRC 13500 (KLR) (19 December 2024) (Judgment)

Neutral citation: [2024] KEELRC 13500 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause 885 of 2017

B Ongaya, J

December 19, 2024

Between

Kevin Njuguna Mwangi

Claimant

and

Ethics and Anti Corruption Commission

Respondent

Judgment

1. The claimant filed the memorandum of claim on 07. 06. 2018 through Enonda & Associates Advocates. The claimant prayed for judgment against the respondent for:a.A declaration and finding that the claimant was unfairly dismissed.b.An order directing the respondent to pay the claimant all outstanding dues as pleaded in paragraph 34 above.c.An order directing the respondent to pay the claimant general, punitive and exemplary damages for the breach of contract and for the loss of career progression, negative publicity and for the pain and suffering experienced.d.Cost of this suite.Interest on b), c) and d) above at court rates from the date of filing this claim until payment is fully made.f.Any other further and better relief that this honourable court may deem fit.

2. The respondent’s memorandum of response was filed on 03. 09. 2018 through Jackie Kibogy Advocate. The respondent prayed that the claim be dismissed with costs.

3. The claimant’s case was that he was employed as a Forensic Auditor by the respondent vide a letter of appointment dated 23. 06. 2005.

4. He was placed on probation for a period of 6 months. He was confirmed as a full employee of the respondent vide a letter dated 20. 06. 2006.

5. On 03. 07. 2008, the claimant’s contract was renewed. Subsequently, on 11. 09. 2012 the claimant was offered employment by the Ministry of Justice and National Cohesion and Constitutional Affairs and was to be deployed to the respondent with effect from 08. 08. 2012.

6. The claimant accepted the offer of employment and signed the same on the 17th September 2012.

7. Thereafter, the claimant underwent a vetting exercise with the respondent in March, 2013 from which he emerged successfully and was offered a letter of employment on permanent and pensionable terms.

8. On 30. 03. 2015, the claimant received a letter of notice to show cause from the Director, Investigation, allegedly for misconduct for having been in communication with a key suspect in the Anglo Leasing matter, one Deepak Kamani through his cell phone number.

9. The claimant states that he responded to the said letter vide a letter dated 31. 03. 2015 indicating that these allegations were not true.

10. Shortly after, the claimant received a letter dated 14. 04. 2015 from the respondent indicating that the respondent had decided to forward his case to the disciplinary committee and that the claimant should arrange to appear before the committee on 22. 04. 2015 at 2:30pm.

11. On 22. 06. 2015, the respondent wrote to the claimant informing him that his employment contract had been summarily terminated due to gross misconduct.

12. It is the claimant’s case that prior to the disciplinary hearings he had been subjected to investigations by two separate respondent’s officers and that the officers had cleared him of any wrongdoing. None of the findings had been considered or brought about during the disciplinary hearing conducted by the respondent on the 22. 04. 2015.

13. The claimant states that he was earning a salary of Kshs 194,457/= at the time his employment services were terminated.

14. The claimant through his advocates on record served the respondent with a demand letter for reinstatement to which the respondent replied declining the claimant’s demands.

15. The claimant maintains that the manner in which the respondent undertook to terminate his employment was illegal, unlawful, and unfair.

16. The claimant pleads that there was no direct and personal communication between him and said Deepak Kamani and the respondent did not prove the same, and that he only made calls when under instruction from his superiors as a means of conducting investigations.

17. On the part of the respondent, it is stated that the claimant was employed by the Commission with effect from 01. 08. 2005 on a contract term of (3 years), renewable by mutual consent and upon claimant’s satisfactory performance.

18. The claimant’s employment contract was renewed with effect from 01. 08. 2008 vide a letter dated 03. 07. 2008. The renewed contract retained the same terms as the previous contract, save for an enhanced salary, a contract term of four year and a one-month termination notice.

19. On 11. 09. 2012, the Ministry of Justice, National Cohesion and Constitutional Affairs offered the claimant appointment as financial forensic investigator III and deployed the claimant to the Commission on a contract term of 12 months with effect from 08. 08. 2012 or until further decision by the respondent whichever was earlier.

20. The claimant was appointed as a Forensic Auditor III with effect from 07. 08. 2013 vide a letter dated 05. 08. 2013. The said appointment was a contract term of one year renewable by mutual consent and upon the claimant’s satisfactory performance.

21. The respondent states that the claimant was paid gratuity in accordance with the terms of each contract entered into between the parties.

22. At the lapse of the one year contract the claimant vide a letter dated 30. 07. 2014 was offered employment as an Investigations Officer II with effect from 01. 08. 2014. The terms of the offer were that the claimant was employed on a permanent and pensionable basis and that termination of the employment was by giving one-month notice or equivalent salary in lieu of notice.

23. The claimant was issued with a notice dated 14. 04. 2015 to appear before the staff disciplinary committee on 22. 04. 2015. The invitation was as a result of the respondent being dissatisfied with the explanation given by the claimant to a show cause letter dated 30. 03. 2015 over an allegation that the claimant was in communication with a suspect in a matter that he was investigating and therefore suspicion of passing vital information to the suspects.

24. The disciplinary hearing did not proceed as scheduled on 22. 04. 2015 because when the staff disciplinary committee sat for a briefing on 21. 04. 2015, it was resolved that the matter be professionally and thoroughly investigated before the hearing.

25. The staff disciplinary committee reconvened on 09. 06. 2015 when the claimant appeared and was given an opportunity to make representations to the allegations made against him.

26. Following the hearing, respondent’s staff disciplinary committee found that the claimant’s action amounted to gross misconducted and was in violation of section 33(1) of the anti-corruption and economic crimes act section 5(b) (c) and 9(b) of the code of conduct for members and employees of the commission (third schedule) to the Ethics and Anti-Corruption Commission Act 2011. The staff disciplinary committee arrived at a verdict to summarily dismiss the claimant with immediate effect pursuant to section 44(4) (g) of the Employment Act and clause 9. 16. 1(vii) of the EACC Human Resource Manual.

27. That on being dismissed the claimant was duly paid the following dues;i.Salary earned up to 22. 06. 2015ii.The pension contribution dues as per the respondent’s staff retirement benefits scheme.iii.Commutation to cash for 42 leave days earned and not taken, on a prorate basis up to 22. 06. 2015.

28. The claimant was summarily dismissed with immediate effect pursuant to section 44(1) of the Employment Act 2007 which provide for summary dismissal without notice or with less notice than that to which the employee is entitled by any statutory provision or contractual term.

29. The respondent states that the claimant was not suspended from duty pending investigations and therefore the claim for salary for days on suspension is misplaced and ought to be dismissed.

30. The respondent maintains that the due process of law as required under section 41 of the Employment Act 2007 was followed. That the respondent conducted an unprejudiced disciplinary process resulting to the summary dismissal and therefore the claimant is not entitled to general, special, punitive and exemplary damages as pleaded.

31. The claimant testified to support his case. The respondent’s witness (RW) was Douglas Olang’, the respondent’s Senior Human Resource Officer.

32. The parties filed their respective submissions. The Court has considered the parties’ respective cases, material on record and makes finding as follows:a.There is no dispute that parties were in a contract of service, which was terminated because of gross misconduct. The letter of summary dismissal was dated 22. 06. 2015. the reason for termination was that the claimant engaged in improper communication with one Deepak Kamani a key suspect in the Anglo Leasing Security case matter through cell phone No. 0XXX/XX. It had been established that in a span of one month alone (March 2015) the claimant had communicated with the suspect for a record 47 times. The same comprised of 27 calls made by the claimant and 20 times when the the claimant was called back. Some of the calls had been made late in the evening after official working hours. Further, the letter of summary dismissal stated that the investigations had disclosed that crucial evidence in the claimant’s possession or care had been stolen with severe detriment to the Commission in the Anglo Leasing cases. The letter further stated that it was reasonably suspected that the claimant had had passed vital information relating to the Anglo Leasing Security case to the suspect to the detriment of the Commission. Accordingly, he was summarily dismissed under section 44(4) (g) of the Employment Act and clause 9. 16. 1 (vii) of the EACC Human Resource Manual. The dismissal was with immediate effect on 23. 06. 2015. b.The Court finds that the respondent has not established that the reasons for termination existed as valid at the time of termination per section 43 of the Employment Act, 2007 and, were fair per section 45 of the Act because they were about the claimant’s conduct in breach of the respondent’s operational requirements. The claimant testified that he did not dispute communicating by the cell phone numbers in the allegations levelled against him. He testified that call logs exhibited confirmed such communication. He testified, “It is not in contention that in March 2015 there were 47 conversations between the two numbers.” He confirmed some of the conversations were outside working hours. He confirmed that he made the conversations without informing his supervisor as was required by the respondent’s policy. He also testified that he spoke to Kumar Patel who worked for Prima Rosa Limited. While Deepak Kimani, the suspect in the investigation was not shown to be a Director of Prima Rosa Limited, the Court finds that on a balance of probability the claimant had failed to explain the many abnormal conversations and in view of the very important and sensitive investigation he was handling. However, the respondent has failed to show the relationship between Patel Kumar and the suspect Deepak Kimani. In the same vein, the claimant has failed to explain the many abnormal telephone calls he made.c.On the procedure, the respondent has shown that it substantially complied with the need to serve a notice and a hearing as per section 41 of the Act. However, the claimant has established that the respondent’s one Abdi Mohamed was the investigator and one who had made an endorsement on an internal communication prior to the disciplinary process that the claimant was culpable. RW testified thus, “I see page R95. Is addressed to Director of investigations. It was Abdi Mohamed. He issued notice to show cause. He indicated in endorsement evidence was overwhelming. He is the same one told by disciplinary Committee to investigate.” The same Abdi Mohamed attended the disciplinary hearing and Vice Chairman of the Disciplinary Committee. The respondent equally failed to inform the claimant about his right to appeal. The Disciplinary panel also suffered quorum shortfall as only 6 and not prescribed 7 members were present. In those considerations, the Court upholds the submissions made for the claimant that the procedure adopted for his summary dismissal was not fair as envisaged in section 45 of the Act.d.The Court has considered the factors in section 49 on grant of compensation for unfair termination. While the summary dismissal is found to have been unfair, the Court finds that the claimant significantly contributed to his termination in the manner he made many suspicious telephone calls. He is awarded two months in compensation plus one-month in-lieu of termination notice making Kshs.347,336. 00. Leave days due 42 were shown unpaid and he is awarded Kshs. 121, 567. 60. Gratuity for years worked had been paid at end of each term contract. There was no suspension and salary while on suspension was misconceived. The costs follow event and the respondent will pay accordingly.In conclusion, judgment is hereby entered for the claimant against the respondent for:a.The declaration the summary dismissal was unfair.b.The respondent to pay the claimant a sum of Kshs.468, 903. 00 (less PAYE) by 01. 03. 2025 failing interest to be payable thereon at court rates until full payment.c.The respondent to pay costs of the suit.

SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS THURSDAY 19THDECEMBER 2024. BYRAM ONGAYAPRINCIPAL JUDGE