[2015] KEELRC 340 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS

COURT AT NAIROBI

CAUSE NUMBER 599 OF 2012

NICHOLAS MUEMA MUTEMI…….………………….……….CLAIMANT

VERSUS

KENYA WILDLIFE SERVICE ……….………..…….……RESPONDENT

JUDGMENT

The Claimant was employed by the Respondent as a ranger on 21st December, 2001. He worked in several stations until 24th October, 2011 when he was transferred from Chyulu Hills National Park to South Turkana National Reserve.

The Claimant was paid an imprest of Ksh.20,300. 00 at Chyulu to facilitate his travel to South Turkana National Reserve. He was also paid a transfer allowance of one month’s salary. The claimant travelled up to Kitale but received a message that his 4 year old son had been admitted at Aga Khan Hospital, Mombasa. He therefore sought permission of 5 days to attend to his son’s medical needs. The permission was granted by the Warder in charge of South Turkana National Reserve David Kones (RW2) through the Assistant Director of the Respondent at its Kitale office. The Claimant was to be away from 10th November, 2011 to 15th November, 2011 when he was expected to report to South Turkana National Reserve. He however did not report back. On 22nd November 2011 the Claimant sought extension of his off duty to 30th November, 2011 by RW2. This was not granted as RW2 had already reported the Claimant’s absence after he failed to report on 15th November, 2011 and the Claimant was already deemed to be Away Without Official Leave (AWOL).

On 11th December, 2011, the Claimant sent a text message to RW2 asking for the email address for the office. RW2 sent him the email address on the same day. On 12th December, 2011 RW2 received an email from the Claimant attaching a resignation letter dated 24th November, 2011. The Respondent did not respond to the resignation letter on grounds that it was irregular having been sent by email, and because disciplinary proceedings had already been commenced against the Claimant.

The Claimant was dismissed from service by letter of dismissal dated 6th March, 2012. The letter states that the reason for dismissal is that the Claimant was deemed to have deserted duty by absenting himself from duty without leave for a period of 113 days. The Respondent offered to pay the Claimant full salary including applicable allowances up to 29th February, 2012 and benefits under the Respondent’s staff superannuation scheme.

The Respondent enclosed a copy of the official Secrets Act Declaration Form with the dismissal letter with instructions to the Claimant to sign and return for the Form for record. The Claimant was also advised to surrender his service identity card and all items of uniform and other property of the Respondent as part of clearance.

The letter of dismissal informed the Claimant that he had a right of appeal to the Respondent’s Director within 7 days. The letter was sent through RW2. The Claimant did not appeal or do anything after receiving the letter of dismissal until 12th April 2012 when he filed this suit.

The case was heard on various dates between 29th April, 2013 and 17th November, 2014. The Claimant testified on his behalf while the Respondent called three witnesses: Francis Kirimi Mbaka, the Warden in charge of Turkana South National Reserve (RW1), who was in charge of Chyulu Hills National Reserve at the time of transfer of the Claimant, David Kones (RW2), the Warden in Charge of South Turkana National Reserve at the time of transfer of the Claimant and Wison Mulwa (RW3), the Respondent’s Human Capital Officer. The parties thereafter filed written submissions.

Claimant’s Case

The Claimant’s case is that he was transferred from Chyulu Hills National Park to South Turkana in very unclear circumstances and without regard to the Kenya Wildlife Services Standing Orders which prompted him to opt for a resignation. The Claimant states that he has been receiving summons to report to his former employer yet he is no longer an employee, that the summons are irregular, intimidating and unjustified. He seeks the following reliefs in his Memorandum of Claim:-

(a) A declaration that summoning of the Claimant is illegal and unlawful since he has resigned from Kenya Wildlife Service,

(b) The Claimant be paid all his terminal dues and be issued with a certificate of service for the period he served at Kenya Wildlife Service,

(c) Costs of this suit and interest,

(d) Interest on (b) and (c),

(e) Any other relief that this Honourable Court may deem fit and just to grant.

Respondent’s Case

The Respondent avers that the Claimant deserted duty for 113 days between 15th November, 2011 and 6th March, 2012 when he was dismissed. The dismissal was pursuant to Section 31(1), (2) and (3) of Kenya Wildlife (Conservation and Management) Act. Disciplinary proceedings against the Claimant were held in absentia and he was lawfully dismissed from service.

The Respondent contends that having been lawfully dismissed from employment the Claimant’s allegations that he resigned from employment are not tenable. The Respondent further contends that the Memorandum of Claim does not disclose any cause of action against the Respondent.

Issues for Determination

The issues for determination are whether the Claimant resigned or was dismissed and whether the Claimant is entitled to the remedies sought.

Findings and Determination

According to his letter of appointment the Claimant was required to give 2 months’ notice of resignation or pay 2 months’ salary in lieu of notice. As a uniformed officer, the Claimant had a responsibility to clear and return his uniforms and work identification card to the Kenya Wildlife Services upon resignation.

In his letter of resignation the Claimant did not indicate whether he was giving notice or paying in lieu of notice. He did not offer to do clearance. The resignation was written after he had already been away from work without permission for 10 days. He must or ought to have been aware that disciplinary action had commenced against him for desertion at the time he sent his resignation letter to the Respondent. This is because he resigned after his application for extension of off duty had been rejected on 22nd November, 2011 on grounds that disciplinary action had already been commenced against him after he failed to report on 15th November 2011.

The Claimant did not submit any proof of delivery of his letter of resignation to the Respondent by G4S as he alleged in his testimony. The only evidence available is delivery by email on 12th December, 2011. By the time he was sending the letter of resignation he had already received both an imprest of Ksh.20,300. 00 for relocation from Chyulu Hills to Turkana and a transfer allowance of Kshs.20,000. 00 which was paid together with his November, 2011 salary.

The Claimant is seeking a declaration that the summons by the Respondent are illegal. The summons cannot be illegal as he has not cleared and signed the official Secrets Declaration Form sent to him together with the letter of dismissal. The Claimant admitted not returning uniforms and his work identity until 27th July, 2012 after filing this suit on 12th April, 2012.

I find this request to be vexatious. The Claimant has a duty to go and clear with the Respondent and cannot expect the Respondent to stop summoning him to go and do so until he has complied and has been cleared.

The Claimant further seeks terminal dues but does not specify what the terminal dues are. His letter of dismissal clearly sets out what he is entitled to; full salary including applicable allowances up to 29th February, 2012 and benefits under the Respondent’s staff superannuation scheme. These have already been offered to him in the letter of dismissal and are payable once he clears and signs the Official Secrets Act Form.

I also find the Claimant’s assertions in his testimony that he was not aware that the Respondent was looking for him to be flagrant. In his claim he is seeking orders that the Respondent stops summoning him. He would not seek such orders if he was not aware that the Respondent was looking for him through the summons for purposes of clearing.

Having been a uniformed officer who had served for more than 12 years and had undergone disciplinary training before being confirmed into the service, the Claimant was aware about his obligations to the Respondent and the processes and formalities to be complied with before being discharged.

From the foregoing reasons, I find no merit in this claim and dismiss it with costs.

I further direct the Claimant to go and clear with the Respondent within 30 days from the date of Judgment to facilitate the closure of his file with the Respondent. Failure to do so will constitute contempt for which the Respondent will be free to institute contempt proceedings against the Claimant.

Dated ………………………..day of……………………………2015

MAUREEN ONYANGO

JUDGE

Delivered in Nairobi this 29th day of October 2015

HELLEN WASILWA

JUDGE