[2015] KEELRC 1642 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS

COURT OF KENYA AT NAIROBI

PETITION NO. 11 OF 2014

(Formerly Nairobi High Court Petition No. 90 of 2014)

NICK GITHINJI NDICHU ……….……………….…. PETITIONER

VERSUS

THE CLERK, KIAMBU COUNTY

ASSEMBLY ……………………………………... 1ST RESPONDENT

KIAMBU COUNTY ASSEMBLY ………..…..… 2ND RESPONDENT

Mr. Mutange led by Mr. Muite for the Petitioner & 2nd Interested Party

Mr. Kibe Mungai for the 1st & 2nd Respondents

Mr. Mbeya for the 1st Interested Party

JUDGMENT

The Petition serving before Court was filed on 27th February 2014 and subsequently replaced by an amended Petition filed on 28th March 2014 seeking principally the following prayers inter alia;

a declaration do issue declaring the Petitioner’s removal from the office by the Respondent as illegal, unlawful and unconstitutional and contravening the Petitioner’s rights guaranteed under the Constitution;

an order of certiorari be issued quashing the 2nd Respondent’s decision to impeach the Petitioner;

punitive and aggravated exemplary damages for libel;

general damages;

compensation for unfair and unlawful loss in terms of paragraph 26 of the Amended Petition;

costs.

The Petition is based on the following grounds set out on the face of the Amended Petition;

The Petitioner was invited by the 2nd interested party (Law Society of Kenya) to its members annual retreat vide a letter dated 5th November 2013. The said retreat was scheduled to take place in Brazil, South America between 22nd – 29th November 2013 at a cost of US£ 5350. 00.

The Petitioner accepted the invitation and informed the 1st Respondent (Clerk, Kiambu County Assembly), who is the Accounting Officer of the 2nd Respondent (Kiambu County Assembly) of his pending travel.

The Respondent facilitated the processing of the payments and necessary travel arrangements with the Law Society of Kenya.

On 1st November 2013, the Law Society of Kenya wrote to the Petitioner confirming his registration to attend the retreat and change of dates for the event from the 22nd to 29th November 2013 to the 3rd to 8th December 2013.

The facilitation money was paid directly to the Law Society of Kenya except for the money expressly stated to be out of pocket expenses.

The Petitioner left the country on 30th November 2013 for the event in Brazil and returned to Kenya on the 4th December 2013, having urgently departed Brazil on 3rd December 2013 due to pressing family issues.

On 25th February 2014, the members of the Kiambu County Assembly through Hon. Mbiyu Nelson Munga the member for Ndeiya Ward introduced a motion to the County Assembly seeking to remove the Petitioner from the office of speaker as an aftermath of the aforesaid trip to Brazil.

The motion raised the following allegations;

that the Petitioner authorized the Finance Department to pay for his travelling expenses to Brazil for the Annual Law Society of Kenya retreat organized by the 2nd Interested Party, on or about 29th November 2013;

that the above authorization was not sanctioned by the interim clerk of the Assembly and was not part of the Petitioner’s work;

that the Petitioner while personally authorizing his trip to Brazil without any legal or policy basis, did not in fact travel to Brazil;

that the Petitioner travelled on 1st December 2013 and came back on 3rd December 2013;

that the money spent for that retreat amounting to Kshs.530,000 was just but a theft of public resources and the payment vouchers that were used to authorize the money had been signed and therefore even the withdrawal of funds from the assembly’s account for this purpose was unlawfully done;

that the Assembly’s procurement staff was not in any way involved in procuring the travel tickets or other incidentals and therefore guilty of flouting procurement laws;

that the County Assembly advertised for prequalification of goods and services in December last year and the 2nd Respondents evaluation Committee completed evaluation on 14th January 2014. The Petitioner ignored the list and single-handedly picked a law firm of his choice to represent the Assembly in a legal suit;

that the Petitioner has been using derogatory language to members of the Kiambu County Assembly who have raised concern over his leadership style as he has employed political persecution to instill fear.

The Kiambu County Assembly on 25th February 2014, passed a motion for removal of the Petitioner as the speaker of the Kiambu County Assembly on the above grounds.

The Petitioner alleges that;

he was denied a chance to respond to the allegations raised after the motion was debated by the members of the Kiambu County Assembly contrary to standing order 64(3) of the Interim County Assemblies standing orders;

that the voting on the motion was in fragment breach of the standing orders by invoking standing order number 68 in the first instance which was not applicable in the circumstances;

that the purported impeachment from office was unfair, unreasonable, unconstitutional and offended the mandatory provisions of the Constitution to wit;

(i) Articles 27, 47, 50 and 236 in contravention of the doctrines of Audi Alteram Patem by denying the Petitioner the opportunity to respond to the allegations raised by members of Kiambu County Assembly;

(ii) Article 47 and 50 by failing to ensure that the Petitioner appeared before a relevant select committee of the Kiambu County Assembly considering the matter and to ensure that the Petitioner had been given a chance to enlist legal representation. Furthermore, the 2nd Respondent failed to ensure that any Report on the findings of a select committee together with any other evidence adduced were availed to the Petitioner at least three (3) days before the debate on motion.

The 2nd Respondent further contravened statutory rights of the Petitioner as follows;

(i) in contravention of Section 11(4) of the County Governments Act and standing order 58(2) of the 2nd Respondent’s standing orders in tandem with Article 178(3) of the Constitution, the 2nd Respondent’s members unprocedurally failed to issue a Notice of Intention to mo the 2nd er 58(2) of the 2nd adduced were availed to the Petve a motion to the Clerk of the Kiambu County Assembly signed by at least a third of the members of the Kiambu County Assembly.

The Petitioner avers that the actions of the members of the County Assembly were activated by malice in so far as the same were unsubstantiated and same amounted to political witchhunt and mob lynching.

That the Petitioner’s trip was processed through the Clerk’s office who is the Accounting Officer of the County Assembly and the relevant departments in accordance with the Public Finance Management Act, No. 18 of 2012 and parliamentary practice and procedures.

That the Petitioner was informed through the Secretary vide a Report of the Evaluation Committee of 14th January 2014, that the firm of Mugoye and Associates Advocates, the 1st Interested Party was among the law firms prequalified to provide services to the Kiambu County.

Unfair termination

The Petitioner avers that his removal from office constitutes unfair termination and or summary dismissal and therefore claims compensation for the same and infringement of Petitioner’s rights and legitimate expectation of employment for the whole term. The Petitioner therefore claims quantum and compensation as set out under paragraph 26 of the Petition comprising;

payment of Kshs.13,050,000 being remuneration for the 2nd to 5th year of service;

payment in lieu of three months notice in the sum of Kshs.675,000 (225,000 x 3);

gratuity for the legitimate expected term of five (5) years calculated at 31% of the basic annual income for five (5) years in the sum of Kshs.4,045,500;

sitting allowances for the legislative calendar for plenary services where the speaker presides and chairing of committee sittings in the sum of Kshs.12,480,000;

Kshs.8,640,000 being sitting allowances for chairing County Assembly Service Board in the sum of Kshs.8,640,000; and

payment of kshs.918,750,000 in lieu of leave days for the legitimate expected term of five (5) years.

Defamation

The Petitioner avers that on 26th February 2014, the Respondents jointly and / or severally, maliciously without consent from Petitioner and without justifiable cause wrote, printed, published and / or reported a liberous article in the Standard Newspaper dated 26th February 2014 inspiration at page 7 titled;

“Kiambu Speaker loses seat over fraud claims: Ward reps kick Ndichu out after they allege he defrauded Assembly of Kshs.530,000 by faking a trip to Brazil”the following article was defamatory to the Petitioner and it continued to allege,“Mr. Ndichu seen as key ally of Governor William Kabogo, was accused of defrauding the Assembly of Kshs.530,000. 00 for travel to Brazil, a trip members claimed he failed to make.”

The Petitioner avers that the said publications and defamatory articles have been widely circulated both in print and electronic media including social media.

That the words complained of were false and maliciously authored, printed and / or published in their natural and ordinary meaning, and were understood to refer to the Petitioner and to mean that he is a corrupt, fraudulent, dishonest, untrustworthy and crooked individual and the Petitioner therefore claims punitive and aggravated or exemplary damages / or libel.

Response

The 1st and 2nd Respondents filed a Replying Affidavit sworn by Mr. John Mwivithi Mutie, the Clerk, Kiambu County Assembly on 14th May 2014 on 15th May 2014.

The 2nd Interested Party filed a Replying Affidavit sworn to by Mr. Apollo Mboya the Secretary / Chief Executive of the Law Society of Kenya on 30th April 2014 on 2nd May 2014. A further Replying Affidavit, sworn to by Mr. Joseph Kaberia, Isaac, an advocate of the High Court of Kenya and the Speaker of the Meru County Assembly on 30th April 2014 was filed on 2nd May, 2014.

The nub of the Response by the 1st and 2nd Respondents is as follows;

A notice of the intention to remove the Petitioner from office dated 24th February 2014, was issued to the then Interim Clerk on 25th February 2014.

Standing order 83 provides for a notice period of three (3) days for such a motion which touches on the conduct of the Speaker or holder of an office whose removal from such office is dependent upon the decision of the County Assembly but the said notice period of three (3) days can be exempted under Standing order 228 as was done in the case herein. Ay motion for removal takes precedence over all other business in the order paper under Standing order 64(1).

A procedural motion was prior to the impeachment motion proposed by Hon. Simon Kimani Komu and passed by the County Assembly to exempt motion for removal of the Petitioner from the three (3) days’ notice period. The motion was approved by the County Assembly.

That the Petitioner being a member of the County Assembly Business Committee approved both the procedural motion to exempt the three (3) days’ notice period and the substantive motion for the Petitioner’s impeachment.

The Petitioner never raised any procedural flaw on both motions and therefore the allegations in the Petition are an afterthought.

The Assembly also adhered to standing order 58(3) and Section 11(3) of the County Government Act as the motion for the resolution to remove the Speaker was presided over by Hon. Antony Kimani Macharia, a member of the County Assembly.

That the Speaker was accorded an opportunity to respond to the allegations on the floor of the House pursuant to Section 11(4) of the County Government Act and Standing order 58(4) as the hansard shows on page 7 and 10 of the hansard. The Speaker never sought for more time to respond if the notice period was inadequate.

The motion was supported by more than two thirds majority as provided in Section 11 of the County Government Act and Standing order 58(1). A record number of 69 County Assembly members voted for the Petitioner’s impeachment out of the total number of 82 members which exceeds two third majority requirement to impeach a speaker. This fact is not in dispute.

That the Speaker is a member of the County Assembly and therefore does not need to appear in a relevant departmental committee as the same only applies to the County Executive Officers who do not have audience on the floor of the house.

It is the case by the 1st and 2nd Respondents that the County Assembly complied with the Standing orders and the County Government Act in impeaching the speaker.

Grounds

That it is clear that the Petitioner travelled to Brazil on a private trip using public funds. The Petitioner does not deny that he travelled to Brazil upon invitation by the Law Society of Kenya for an Annual retreat, which is a private engagement.

That the invitation was not made to the Petitioner by virtue of his offices as a Speaker of the County Assembly but by virtue of him being a member of the professional body the Law Society of Kenya and therefore the trip did not concern the County assembly. The Petitioner was therefore not on official duty. The Petitioner misused and or misappropriated public funds and had to be held accountable.

Secondly, the Petitioner unprocedurally improperly and single handedly instructed the firm of Mugoye and Associates to handle Nairobi High Court Petition No. 71 of 2014, Rosemary Njeri Nyambura Vs. I.E.B. & others. The said firm of Advocates had not been qualified to offer legal services to the Assembly due to lack of a valid tax compliance certificate.

In his defence at the floor of the house, the Petitioner alleged that he did so as the said matter was filed under certificate of urgency and there was no time to carry out procurement processes. However there is no explanation which has been offered to show why then he did not instruct a firm amongst those ones which had been prequalified. That the firm of Mugoye & Associates Advocates was in breach of the public laws and amounted to abuse of office. The holder of the office of the Speaker of a County Assembly is not a member of the procurement committee.

Thirdly, the Petitioner was accused of using abusive words against the members of the County Assembly who are his employer. Using abusive / insulting language against a fellow employee or the employer is a ground for summary dismissal under Section 44(4)(d) of the Employment Act. No. 11 of 2007. That the Petitioner did not apologise on the floor of the house for using abusive language.

The 1st and 2nd Respondents submit that the grounds for removal of the Petitioner from the office of the Speaker were sound and well set out. He Petitioner was given opportunity to convince members of the County Assembly to the contrary but failed to do so on the floor of the house.

Defamation

With regard to the allegations by the Petitioner that the Respondents caused to be published defamatory words set out on the face of the amended Petition in several dailies notably The Daily Nation, The Standard, People Daily, The Star and publication on capital FM Website, the 1st and 2nd Respondents have denied these allegations in paragraphs 44, 45, 47 and 48 of the Respondent’s Replying Affidavit and place the Petitioner on strict proof thereof.

Breach of the Constitutional Rights of the Petitioner

The 1st and 2nd Respondents in view of the aforegoing deny having breached any of the Petitioner’s Constitutional rights and in particular they deny having violated Articles 27, 28, 38 41, 47 and 50 in respect of the procedure followed in the impeachment of the Petitioner. The Respondents allege that the Petitioner has not pleaded with specifity the particulars of the alleged breach in the amended Petition dated 27th March 2014. That a party is bound by his own pleadings and on that ground alone the Petition ought to fail.

The Petition lacks merit and therefore the Petitioner is not entitled to any of the remedies set out in the Petition.

1st and 2nd Interested Parties

The 1st Interested Party filed an Affidavit in support of the Petition. The 2nd Interested Party also filed a Replying Affidavit referred to earlier in this Judgment. Mr. Apollo Mboya, the Secretary / Executive Officer of the Law Society, in the replying Affidavit confirmed that on 5th November 2013, the Law Society of Kenya invited Speakers of various County Assemblies who are members of the Law Society of Kenya, including the petitioner to an annual retreat vide a letter of the same date. The retreat was scheduled to take place in Brazil, South America, between 22nd – 29th November 2013 at a cost of US£ 5350.

The Petitioner confirmed participation among other Speakers from Meru County Assembly and Kakamega County Assembly.

The retreat was initially meant to take place in Brazil from 22nd – 29th November 2013 but the dates were changed to 30th November to 8th December 2013 due to the delay in processing of visas for the group.

On 18th November 2013, the Petitioner wrote to confirm registration to attend the retreat as per the changed dates from 30th November to 8th December 2013.

That it is a policy of the Law Society of Kenya that payments for conferences, retreats and / or any event organized by it should be paid directly to the Secretariat and this was not an exception.

On 18th November 2013, the Secretariat received US£ 5,550 from the Respondents and were issued a receipt by one Gabriel Karimi Mureithi.

That the group’s departure flight was on the 30th November 2013 and return flight on 7th and 8th December 2013.

That the group was booked in hotel, Grand Mercure in Sao Paulo Brazil upon arrival.

The Petitioner and other members of the Law Society left the Country on the 30th November 2013 to Brazil. The trip would include visits to Rio de Janeiro and Sao Paulo.

That the Petitioner informed Mr. Apollo Mboya and other officials of the Law Society of Kenya that he would be unable to proceed to Rio de Janeiro on 4th December 2013 as he had to travel back to Kenya to attend to pressing personal issues that arose while he was in Brazil.

The Petitioner made own arrangements including payment of extra charges for the change of flight schedule.

The deponent confirms that the Petitioner indeed travelled for a retreat in Brazil, South America on 30th November 2013 and that money for the said retreat were paid directly to the Law Society of Kenya.

Mr. Joseph Kaberia Isaac, the Speak of the Meru County Assembly deposes that he received similar invitation and the Meru County Assembly paid on his behalf US£5,350 and he travelled to Brazil on 30th November 2013 and returned on scheduled flight for the group on 8th December 2013.

The deponent confirms that he travelled with the Petitioner and Speaker Kakamega County Assembly, Hon. Morris Buluma.

The deponent confirms that the Petitioner checked out of the hotel, Grand Mercure, in Sao Paulo Brazil on 3rd December 2013 and travelled early back to Kenya due to pressing personal issues.

Issues for Determination

Was the Petitioner removed from office for valid reason(s)?

If the answer to (i) above is in the affirmative, was the Petitioner removed in terms of the prescribed / fair procedure?

If answer to (ii) is in the negative, did the manner of removal violate any constitutional rights of the Petitioner?

Did the Respondents defame the Petitioner?

What remedies if any are available to the Petitioner?

Issue i

It is not in dispute that the Petitioner attended a Law Society retreat in Sao Paolo Brazil between 30th November 2013 and 3rd December 2013. It is also not in dispute that a sum of USD 5350 was paid by the Kiambu County Assembly to facilitate the travel and out of pocket expenses for the Petitioner.

The 1st and 2nd Respondents allege that the payment of USD 5350 was not sanctioned by the Clerk to the County Assembly. It is alleged that the Petitioner bulldozed junior officers to authorize the payment of the amount in respect of what was purely a private trip to Brazil.

The Court has carefully considered the averments and deposition by the Petitioner and noted that the Petitioner has not attempted at all to demonstrate that he was entitled to the use of public funds to fund the trip to Brazil to attend the Law Society retreat.

The Secretary / Chief Executive Officer at the Law Society did not address the issue as to whether members of the Law Society attended the Annual Retreat, purely as a private venture or not.

The Petitioner was impeached by 69 members out of 82 members of Kiambu County Assembly for abuse of office in that, he unlawfully caused public funds to be used for a private trip. The statutory threshold of two thirds was met in the vote that impeached the Petitioner.

The Kiambu County Assembly was of the overwhelming view that the Petitioner had abused office in this respect.

Secondly, the Petitioner was alleged by the Respondents to have wrongfully allocated work to Mugoye & Associates Advocates while the said firm of Advocates was not in the list of prequalified firms of Advocates and had been disqualified for lack of a tax clearance certificate to provide legal services to the Kiambu County Assembly. That this was done in violation of the Kiambu County Assembly procurement regulations and policy.

Again the members of the County Assembly overwhelmingly found the Petitioner guilty of this offence.

Section 43(1) of the Employment Act, 2007 provides;

“in any claim arising out of termination of a contract, the employer shall be required to prove the reason or reasons for the termination, and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of Section 45. ”

The impeachment of a Speaker who the Court in its earlier ruling in this matter found was an employee of the County Assembly is a typical termination of employment. It is the Court’s considered view that the County Assembly must meet the same burden of proof as any other employer.

On the other hand Section 47(5) provides thus;

“For any complaint of unfair termination of employment or wrongful dismissal the burden of proofing that an unfair termination or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds for the termination of employment or wrongful dismissal shall rest on the employer.”

A plain reading of Section 43(1) as read with Section 47(5) shows that;

the employer must demonstrate that the action or omission that led to the termination or dismissal of an employee occurred and that the action or omission was a justifiable reason to terminate employment of or dismissal of an employee.

on the other hand the employee bears the burden of proving that the termination was unfair or the dismissal was wrongful.

It is the Court’s considered view that the employee must on a balance of probabilities demonstrate that the action or omission which the employer has put forth as the justification for the termination or dismissal;

did not actually occur; and

if it happened, it did not constitute a valid reason for the termination or dismissal and therefore the termination was unfair or the dismissal was wrongful.

The Respondents have provided three reasons for the removal of the Petitioner.

The Court finds that the Respondents have demonstrated that the Petitioner used public funds on a private retreat which action was contrary to the Laws and Policy governing the operations of the Kiambu County Assembly.

The Respondents further demonstrated that the Petitioner awarded work to the 1st Interested Party contrary to the procurement policy and regulation of the Kiambu County Assembly.

Accordingly, the Petitioner has failed to discharge the burden of proof on a balance of probabilities to show that the removal of the Petitioner from the office of the Speaker was for a non valid reason.

Issue ii

The Court has carefully analysed the evidence on the procedure followed by the Respondents in the removal of the Petitioner from the office of the Speaker and has come to the inevitable conclusion that;

A notice of intention to remove the Petitioner dated 24th February 2014 was dully issued to the interim Clerk on 25th February 2014;

A procedural motion was moved by Hon. Simon Kimani Komu to exempt the motion for removal from the three days notice and was duly passed.

The Petitioner did not raise objection on both motions.

The speaker was accorded opportunity to respond to the allegations against him on the floor of the house and the Speaker did not request for more time to further his defence per Section 11(4) of the County Government Act and Standing order 58(4).

The motion for impeachment was supported by more than two thirds majority as per Section 11(1) of the County Government Act and Standing order 58(1).

That the Speaker being a member of the County Assembly, there was no need for him to appear in a departmental committee before the impeachment motion was tabled before the full house.

Accordingly, the Respondents have successfully demonstrated that they complied with the procedures provided in the County Government Act and Standing orders of the Kiambu County Assembly in the impeachment and removal of the Petitioner as the speaker of the Kiambu County Assembly.

The Court finds that the third reason advanced by the Respondents that the Petitioner used abusive language against members of the County Assembly was not sufficiently proved by the Respondents to constitute a valid reason to remove the petitioner from the office of the Speaker. However, the other two reasons were sufficient for that purpose.

Issue iii

From the aforegoing, it follows that the Petitioner has failed to prove on a balance of probabilities that any of his constitutional rights as set out in the Petition were violated by the Respondents as alleged or at all and the Court finds accordingly.

Issue iv

Arising from the above finding by the Court, and the Petitioner having held a public office, members of the public had a right and interest to know what was happening at the kiambu County Assembly.

The kiambu County Assembly as a matter of fact, had a constitutional obligation in terms of Article 35(5) of the Constitution which reads;

“every citizen has the right of access to information held by the state.”

The information set out in the Petition and published by the local media reflected the correct allegations made by the 2nd Respondent against the Petitioner and the named media, which in any event has not been enjoined in this suit had a legitimate reason to publish the said information emanating from the floor of Kiambu County Assembly or otherwise.

The defamation suit has not been proved on a balance of probabilities especially in view of the finding by G. G. Odunga J. in Phinelas Nyaga V. Gitobu Imanyara [2013]eKLR as follows;

“the Plaintiff chose not to call anyone from the Star Publication to shed light on where the offending story emanated. In the absence of evidence attributing the statement to the Defendant the mere fact that the same was published by the Star Newspaper does not meet the threshold of proof on a balance of probabilities that the Publication was in actual fact done at the behest of the Defendant.”

In the present case, the information published was not defamatory as it reflected the true position of public proceedings before the Kiambu County Assembly. Furthermore, there is no evidence from any of the cited newspapers or the Petitioner as to the source of the published information.

Issue v

The Petition lacks merit in that the Petitioner was removed as a speaker of the Kiambu County Assembly for a valid reason and the Speaker was removed in terms of a fair procedure. However, the Respondents did not respond to these specific claims;

payment in lieu of twenty one (21) leave days from the 1st year (2013) in the sum of kshs.157,500;

gratuity at 31% for the 1st year (2013) in the sum of Kshs.906,750. 00;

three (3) months’ salary in lieu of Notice Kshs.675,000. 00.

It is not in dispute that the Petitioner had served his first year in office having been removed from office on 25th February 2014. The three (3) specific claims have not been traversed by the Respondents and therefore remain uncontested and the Court finds in favour of the Petitioner in respect of the specific claims as they constitute legitimate terminal benefits duly earned by the Petitioner.

Accordingly, the Petition only succeeds to the extent the Court awards the Petitioner as against the Respondents;

Kshs.157,500. oo in lieu of twenty one (21) leave days for the year 2013.

Kshs.906,750. 00 being gratuity at 31% for the completed year of service (2013); and

Kshs.675,000. 00 in lieu of three (3) months’ notice;

Total award Kshs.1,739,250. 00

The Award to be paid with interest at Court rates from date of filing this suit till payment in full.

The Respondents to pay the costs of the suit.

Dated and Delivered at Nairobi this 25th day of September 2015

MATHEWS NDERI NDUMA

PRINCIPAL JUDGE