[2024] KEELRC 2090 (KLR)

Njue v Kenya Maritime Authority & another (Cause E026 of 2023) [2024] KEELRC 2090 (KLR) (25 July 2024) (Judgment)

Neutral citation: [2024] KEELRC 2090 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Mombasa

Cause E026 of 2023

M Mbarũ, J

July 25, 2024

Between

Robert Mutegi Njue

Claimant

and

Kenya Maritime Authority

1st Respondent

Board Of Directors Kenya Maritime Authority

2nd Respondent

Judgment

1. The Claimant is a male adult. The respondents are established under section 3 of the Kenya Maritime Authority Act to administer and enforce the provisions of the Merchant Shipping Act, 2009 (No. 4 of 2009) and any other legislation relating to the maritime sector.

2. On the 15th Day of October 2020, the Claimant was appointed as the Director General at the Respondent Authority earning a Salary of Kshs. 506,000. His employment was regulated under various policies of the respondent and the government including the Kenya Maritime Authority Act and the Mwongozo, Code of Governance for State Corporations 2015. Under the Mwongozo Code of Governance for State Corporations, section 1. 18 (e) stipulates that the Board, upon the appointment of the Chief Executive Officer (CEO) is required to set performance targets in the Performance Contract.

3. The claim is that despite the Claimant's appointment by the Cabinet Secretary for Infrastructure, Urban Development and Public, on 15th October 2020, the Respondent did not set targets for him for the Financial Period 2021/2022. Further vide Board Paper No. 505/14/01/2022 dated 10th January 2022, the Board, under Board Evaluation carried out for the 2020/2021 Financial Year, the Claimant was rated at 83. 34%. This demonstrated the Claimant's exemplary performance.

4. Through a letter dated 26th May 2022, the respondents issued to the Claimant a Notice to show cause on a myriad of allegations among others that his performance was subject to deliberation during a special full board meeting held on 26th May 2022. However, the deliberations and all resolutions made during the Special Board Meeting were null and void and had no effect for the reasons that the Board Chairperson's term expired and no appointment had been made by the President of the Republic of Kenya. The absence of the chairperson of the Board did not warrant the Board members to appoint a substantive Chairperson or vice Chairperson. The Kenya Maritime Authority Act only stipulates the situation where the Board Chairperson is absent, the Board Members can appoint a chairperson for the particular session of the meeting and not where such appointment had not been made by the appointing authority.

5. Section 6 of the Kenya Maritime Authority Act provides that the Chairperson of the Board shall be appointed by the President. Since the expiry of the term of the Chairperson in February 2022, the president has not appointed another Chairperson of the Board as required by the Act. Since the expiry of the Chairperson's term, the Board was therefore not properly constituted to transact any 1st Respondent business unless such appointment is done.

6. The Respondent through a letter dated 26th May 2022 issued to the Claimant a Notice to show cause on a myriad of allegations among others that the Claimant's performance was subject to deliberation during a special full board meeting held on 26th May 2022. On 6th June 2022, the Claimant responded to the Show Cause Letter and requested further information to enable him to respond to the allegations which he had no information at hand from the Respondent. Instead of providing the required material information, evidence and/or documentation, as requested, the Respondent on 7th July 2022 issued the Claimant with a letter titled "Interdiction for Gross Misconduct" without any hearing as required by law before such a drastic decision is taken the Respondents.

7. On the same date herein 7th July 2022, the Respondents issued the Claimant another letter Titled "Disciplinary Hearing Notice" an action that ought to have been taken by the Respondents before issuing an Interdiction Letter. The Respondent failed to comply with the disciplinary process stipulated under the Employment Act, 2007, Kenya Maritime Authority Human Resource Manual and International Conventions amounted to unfair termination.

8. The Respondent interdicted the Claimant while he was on official duties at Lagos Nigeria and the interdiction letter sent to the Claimant via his email address was an indication that it was malicious and failed to comply with the provisions of the Constitution and the Law. After interdiction while in Lagos, the Respondents instructed the Claimant driver not to pick him up at the Airport an indication that the same amounted to unfair labour practices as provided under Article 41 of the Constitution. The Claimant was instructed not to set foot in the office and was denied the right to pick up his personal belongings that were in his office, thereafter his office locks were changed and could not access his office. This clearly shows malice, bad faith discrimination and unfair labour practices. The Respondents already had a predetermined decision terminating the employment contract of the Claimant.

9. The claim is that the respondent violated the claimant’s right to fair administrative action. Through a letter dated 5th August 2022, the respondent notified the Claimant that the disciplinary hearing was rescheduled to 29th August 2022. In the said letter, the Respondent warned the Claimant to desist from using official stationery and correspondence in any matter appertaining to the Respondent while on interdiction. The action of the Respondents to warn the Claimant to desist from using the Authority stationery herein letterheads at a time when he is still an employee of the Authority implied that the Respondents had already made a predetermined decision to dismiss him. On 28th July 2022, the claimant requested the Respondents for documents to be used to mount the defence before the disciplinary hearing which was scheduled to be on 29th August 2022. The Claimant enumerated all the documents he intended to use during the disciplinary hearing with specificity.

10. On 11th August 2022 the respondent served the Claimant Advocates herein with a bundle of documents requested by the Claimant. The said bundle of documents was received on 17th August, 2022 as indicated in the received copy in the Advocates office. Upon careful perusal and scrutiny of the documents requested by the Claimant and the documents availed to the Claimant Advocates, it was established that the majority of documents requested were never availed and the ones availed were documents and/or evidence that occurred before the Claimant was appointed hence they were irrelevant. On 19th August 2022, the claimant notified the Respondents that his request for the documents to be used during the disciplinary hearing was never availed.

11. The claimant also notified the respondent he would not appear during the scheduled disciplinary hearing of 29th August 2022 for the sole reason that the documents requested were never availed and that he would require a further 30 days upon receipt of the requested documents to prepare for defence. He further notified the respondent that the bundle of documents served on 17th August 2022 were voluminous and it would be impracticable for him to appear for the scheduled disciplinary hearing on 29th August 2022.

12. On 25th August, 2022 the respondent in availing the documents requested by the Claimant, it was established that the minutes were extracts of minutes signed by the Corporation Secretary which were not the documents requested. For the Respondents to decide the documents to avail to the Claimant at their convenience is contrary to the Fair Administrative Action Act in regards to information and the same contravenes Articles 35 and 47 of the Constitution.

13. On 1st September 2022, the claimant reminded the Respondents that the documents requested to enable him to mount his defence had not been availed, were not acted upon by the Respondents nor given the seriousness it deserved. The Respondents through their Corporation Secretary through letter dated 30th August 2022 informed the Claimant that the disciplinary hearing shall be 16th July 2022. Interestingly, the Respondents through a letter dated 30th August 2022 again notified the Claimant that the disciplinary hearing shall be on 16th September 2022.

14. On 26th May 2022, the Board of Directors notified the Director General for Heath to convene a Medical Board to assess and ascertain the medical fitness to work and/or perform the function of the position of Director General at a time the Claimant had contracted COVID-19.

15. The claim is that there was malice and bias leading to termination of employment. This is demonstrated by fact that the appointment of John Omingo the Head of Commercial Shipping as the signatory of 1st Respondent Bank accounts as was resolved on 6th August, 2021. This ignored the fact that the claimant was a signatory to all 1st Respondents Bank Accounts and approved payment of acting allowance to Mr. John Omingo head of Commercial Shipping. On 28th January 2022, the Acting Director General requested the Board of Directors to relieve the claimant of the signatory duties. The claimant was accused of failing to renew ISO Certification for the 1st Respondent which expired on 20th May 2020. The Claimant was appointed on 15th October 2020 hence being leveled on an allegation that occurred before the Claimant was appointed is malicious and discriminative. The Claimant was accused to have failed to ensure proper management of the construction contract in regards to 1st Respondent's headquarters building that began five (5) years before the Claimant was appointed clearly demonstrates malice and bias in handling the disciplinary process that is already flowed.

16. The claim is that the respondent violated the Kenya Maritime Act for failing to have a proper chairperson in charge of the board. The Chairperson's term expired on 8th February 2022 and none was appointed until November 2022 when the President appointed Mr. Hamisi Mwaguya as the new Chairperson of the 1st Respondent. The decisions made by the respondent against the claimant were null and void.

17. The claimant filed Petition No. E12 of 2022 — Robert Mutegi Njue v Kenya Maritime Authority & another Others. On 28th March 2023 the court struck out the Petition and advised the Petitioner to file a memorandum of claim.Claimant prays for Judgment against the Respondents for;a.A declaration that the Constitution of the 1st Respondent Board of Directors was not properly constituted as provided for under the Provisions of Kenya Maritime Authority Act No. 5 of 2006 at the time of dismissing the Claimant.b.A declaration that any Decision, Resolution and/or Deliberation of the 2nd Respondent is null and void ab initio from February 2022 the time when the Term of the Chairperson expired to November 2022 when the New Board Chairperson was appointedc.A declaration that the issuance of the letter referenced "Termination Of Contract And Dismissal As Director General Kenya Maritime Authority" to the Claimant amounts to unfair dismissal and contrary to the Employment Act No. 11 of 2007. d.A declaration that the issuance of the letter referenced "termination Of Contract And Dismissal As Director General Kenya Maritime Authority" to the Claimant was unfair and unconstitutional, null and void.e.Reinstatement of the Claimant to his position of Director Generalf.Gross Salary for One (1) year and Six (6) months being the remainder of the Contract Period totaling to Kenya Shillings Seven Million and Eighty-Four Thousand (Kshs. 7,560,000. 00)g.Service Gratuity for three (3) years totaling Kenya Shillings Four Million Three Hundred and Fifty-One Thousand Six Hundred (Kshs. 4,352,400. )h.One (1) month's salary in lieu of Notice of Kenya Shillings Five Hundred and Six Thousand (Kshs. 566,000. 000)i.Damages for unfair dismissal of Kenya Shillings Five Million and Forty Thousand (Kshs. 5,040,000. 00) being gross salary of Twelve Months (12) months.j.Outstanding Leave of Kenya Shillings Four Hundred and Twenty Thousand (Kshs. 420, 000)k.Payment from Interdiction to dismissal for July, August and September 2022 amounting to Kenya Shillings Seven Hundred and Twenty Thousand (Kshs 720, 000)l.Telephone Benefits amounting to Kenya Shillings Four Hundred and Thirty-Seven Thousand (Kshs 437,000) for the remainder of the contract termm.An order for compensation according to Article 23 of the constitution for infringement of the Claimants Bill of Rights.n.Interest in (e), (f) (g) and (h)o.The Respondent to bear the costs of this Suit in any event.p.Such further orders as this Court may deem just and expedient.

18. The claimant testified in support of his claim. He testified that after his appointment as Director General, with the Respondent, on 15th October, 2020, I expected that the provisions of the Constitution of Kenya under Article 47 on Fair Administrative Action and Article 50 (2) in regards to fair hearing should be complied with in handling any dispute. On 26th May 2022, the respondent issued him a Notice to show cause on a myriad of allegations from the Respondent and his Response on 6th June 2022 was to request material evidence to enable him to respond to the allegations levelled against him but the respondent failed to comply. He had a legitimate expectation that he would be supplied with material evidence to enable me to make a proper response in compliance with the Constitution and the Laws. A failure to accord him the requested material evidence is in total disregard of the Law.

19. The claimant testified that he was accused of inactions that happened before I was appointed as Director General at the Respondent. Key roles were taken away from him including being the accounting officer of the Respondent including the signatory of bank account and quick pay contrary to the Respondent's action for the period from December 2021 to the time of dismissal. The dismissal from employment was not fair and failed to meet the provisions of fair procedure. As the Director-General, the claimant was allowed to delegate duties in writing. The Respondents further alleged that he was insubordinate to the Board and lacked respect for lawful authority. No evidence exists to demonstrate insubordination and lack of respect to the authority of the Board of Directors hereinafter referred to as 2nd Respondents. The Respondents alleged that he misused public assets by interchanging vehicle registration number plates for KCH 735Q with KCE 625D and Registration number plate KCH 735Q to bear civilian number plates other than the standard parastatal number. Through letter dated 9th September, 2022 the respondent accused the claimant of authorizing the interchange of the Authority vehicle number plate. For the Respondents therefore to terminate and summarily dismiss him on this ground without evidence linking him with the fabrication of the Authority vehicle number plate fabrication is against the law and the same should be termed as unfair termination. The Respondents further levelled wild allegations against him that he misappropriated public funds. No evidence exists to demonstrate that he ever misused public funds as alleged by the Respondents. No Investigation Report was availed or called to record statements. Section 4. 2.1 of the Kenya Maritime Authority Manual, 2020 stipulates that when an officer travelling on duty stays overnight away from his permanent station and makes his arrangements for accommodation, accommodation allowance shall be paid to him at the rates determined by the Government from time to time. In this regard, the Claimant never acted contrary to this provision and complied with all Government Circulars regarding payment. Further, Section 4. 3.1 provides that an employee who is required to travel on duty outside Kenya will be granted Daily Subsistence Allowance at the rates as guided by Government circulars and policies from time to time.

20. The claimant testified that the Respondents have further alleged that he had chronic absence from office without lawful authority. However, the leave applications approved by the Board demonstrate that the Respondents were fully aware of his absence from work. In addition, the sick off reports from the medical practitioner indicate that whenever he was absent he availed evidence explaining the same as required by the Employment Act and other regulations.

21. The response is that the Respondents raised concern with the Claimant's conduct and failure to provide leadership sought an explanation and requested him to show cause why disciplinary action should not be taken against him through a letter dated 18th April 2022. He declined, neglected and or refused to respond to the show cause letter.

22. During a Special Full Board Meeting held on 26th May 2022, a decision was reached that the claimant be issued with a second notice to show cause why disciplinary action should not be taken against him. On 26th May 2022, the claimant was requested to show cause why disciplinary action should not be taken against him within 14 days. He tendered a reply to the notice to show cause letter vide a letter dated 6th June 2022.

23. The Claimant, like every other state officer, had a duty to liaise with his supervisor to set performance targets for the year 2021/2022 and he failed to liaise with his supervisor to set the performance targets.

24. The Respondents admit that the Chairperson of the Board is appointed under section 6 of the Kenya Maritime Authority Act whose duties are set out in paragraph 3(6) of the Second Schedule to the Kenya Maritime Authority Act. Paragraph 3(6) of the Second Schedule to the Kenya Maritime Authority Act provides that in the absence of the Chairperson and Vice-Chairperson, the members present shall elect one of their member who shall, concerning that meeting and the business transacted thereat, have all the powers of the Chairperson. The Code of Governance for State Corporations (Mwongozo) also provides that in the absence of the Chairperson to the Board, one of the Board Members designated by the Board Members present at the meeting will chair the meeting (See paragraph 8(a) at page 47 of the Code of Governance for State Corporations). Every time the Chairperson and Vice-Chairperson were absent a session chair was elected, from amongst the members present, to each meeting.

25. The Respondents admit issuing the Claimant a Notice to Show Cause dated 26th May, 2022. The Claimant responded to the Notice to Show Cause on 6th June, 2022, but failed to respond to the allegations made against him. After considering the Claimant's response during the Special Full Board Meeting held on 5th to 7th July, 2022, the Board decided to interdict the Claimant to pave way for investigations and disciplinary hearing.

26. Disciplinary Hearing Notice was issued to the Claimant after the Board reached a finding that there were sufficient reasons for him to go through a disciplinary hearing. The Claimant moved Court in Mombasa Elrc Constitution Petition No. E012 Of 2022 Robert Mutegi Njue Versus Kenya Maritime Authority And The Board Of Directors Kenya Maritime Authority seeking to stop the disciplinary hearing. The court order issued on the 28th of July, 2022 directed that pending the hearing and determination of the application dated 18th July 2022, the disciplinary process in issue may continue under the applicable regulations, law and contractual provisions. The court further directed that the claimant be provided the relevant information or documents in the Respondent's possession as may be requested by the petitioner for adequate defence.

27. The respondent complied as directed by the court. There was no malice as alleged and the respondents allowed the claimant access to all the records required. Upon failure to attend a disciplinary hearing, a notice terminating employment was issued. Terminating the claimant's employment is not malicious, discriminatory or contrary to the constitution as alleged in paragraph 31 of the Memorandum of Claim. Through a notice dated 5th August 2022, the respondent notified the claimant that the Disciplinary hearing had been rescheduled to 29th August 2022. The Respondents further admit notifying the Claimant to desist from using the Authority's stationery but deny that the Authority had made a predetermined decision to dismiss him.

28. On 28th July 2022, the Claimant requested for adjournment of the disciplinary hearing scheduled for 29th July 2023. On 28th July 2022, the Claimant was advised to make the application for adjournment and request for documents during the disciplinary hearing meeting on 29th July 2022 through letter dated 28th Judy, 2022. However, the Claimant did not show up for the disciplinary hearing on 29th July 2022 notwithstanding that the Respondent expended public funds towards preparations for the disciplinary hearing scheduled for 29th July 2022.

29. On Friday, August 11, 2022, at 5:09 pm, the Claimant forwarded to the 2nd Respondent a letter dated 29th July 2022 seeking adjournment of the disciplinary hearing and information by email. The Special Full Board meeting held on 29th July 2022 considered and approved the petitioner's request to reschedule the hearing and further approved his request to be supplied with additional documents regarding the charges laid against him. On 5th August 2022 the claimant was informed of the decision to reschedule the disciplinary hearing to 29th August 2022 and on 11th of August, 2022 they forwarded documents requested by the claimant for preparation of his defence.

30. The respondent considered all facts and adjourned the disciplinary hearing scheduled for 29th August 2022 to 16th September 2022. On 22 and 25 August 2022 the claimant was issued with all the documents he had requested and there was no violation of Article 35 and or 47 of the Constitution as alleged. The Respondents admitted receipt of the letter dated 1st September 2022 and responded to it on 9th September 2022 and addressed to the claimant, they listed all the documents provided and reaffirmed the Disciplinary Hearing was on 16th September 2022 at 10:00 am at the North Coast Beach Hotel.

31. The Corporation Secretary is an official of the 1st Respondent and acted in line with her mandate as spelt out in Section 13 of the Kenya Maritime Authority Act. The Respondents deny that her actions amounted to psychological torture and insubordination. within 1 hour and 23 minutes of dispatch, they corrected the error in the letter dated 9th August 2022 and notified the Claimant that the correct date was 16th September 2022 and not 16th July 2022.

32. On 9th August 2022 the minutes were signed by the Session Chair elected by members of the board per paragraph 3(6) of the Second Schedule to the Kenya Maritime Authority Act.

33. In requesting the Director General of Health to convene a medical Board to assess the Claimant's Medical fitness to work and perform the functions of the Director General the Respondents had the best interest of the Claimant at heart. The Respondents deny their action was a calculated move to dismiss the Claimant from service. The appointment of the Head of Commercial Shipping as a signatory of the 1 5t Respondent's account was necessitated by the Claimant's illness that necessitated the claimant to be away from work and not by malice, and/or biases as alleged.

34. On 14th January, 2023 the Board deliberated on the issue of the Claimant's resumption of duty and change of signatories the Board resolved that there was need for expert opinion on the Claimant's fitness to resume his duties fully before a decision is made. The Claimant was interdicted between 7th July 2022 and 16th September 2022 and he could not be a signatory to the bank accounts during this time. The Claimant proceeded for annual leave without approval contrary to public service rules and regulations.

35. On 27th April 2022, the claimant was notified that he needed to present his leave application to the Board and await approval before proceeding on leave. The Claimant was allowed to respond to the charges leveled against him but failed neglected and or declined to respond to the charges. The Board was properly constituted when they deliberated and made resolutions regarding the Claimant's contract of employment and denied that the resolution passed was illegal null and void ab initio.

36. The Respondents requested the Claimant to show cause why disciplinary action should not be taken against him through a letter dated 18th April 2022 but he declined or neglected to respond to the letter. This necessitated the issuance of the letter dated 26th May 2022. During the Special Full Board Meeting held on 5th to 7th July 2022, the Claimant's response contained in the letter reference dated 6th June 2022 was considered before a decision to interdict the Claimant to pave the way for investigation. The reason for the administrative action was communicated to the Claimant.

37. On 7th July 2022, the Claimant was notified of the charges against him and a disciplinary hearing date of 29th July 2022 but the Claimant failed to respond to the charges against him and or attend the hearing. The Claimant had the opportunity but despite several requests for adjournment of the disciplinary hearings being granted the Claimant failed, declined, neglected and or chose not to respond to the charges against him and or attend the disciplinary hearings. The Claimant remained the accounting officer of the Authority until the time of termination of employment. The issuance of the Claimant with a letter on interdiction and notice of a disciplinary hearing was procedural. The Respondents further aver that they continued to engage the Claimant and supply information and documents to be relied on during in decision making or taking the administrative action per section 4 (3) (g) of the Fair Administrative Act. The Board was properly constituted on 16th September, 2022 when it deliberated on and made a decision to terminate the Claimants contract of employment. Despite being notified of the charges facing him vide a letter dated 7th July, 2022 the Claimant failed to attend the disciplinary hearing or respond to the charges against him. The Claimant had previously filed Mombasa Elrc Constitution Petition No E012 Of 2022 Robert Mutegi Njue Versus Kenya Maritime Authority And Another which was struck out on 28th March 2023. On 21st October 2022, during the subsistence of Mombasa ELRC Petition No. 12 of 2022, the Public Service Commission issued a Circular Referenced dated 21st October 2022. The circular conveyed informed all departmental heads within the civil service of the decision by the Court to declare any provision of the law that requires an employee dismissed from service to forfeit pension claims unconstitutional as it contravenes the provision of Articles 41, 40 and 43(1)(e) of the Constitution.

38. Through a letter dated 21st October 2022, the Claimant was formally requested to clear, settle outstanding liabilities and obtain a clearance certificate then collect his terminal dues vide a letter dated 24th February, 2023. The Claimant acknowledged having assets belonging to the Respondents vide an email dated 18th April, 2023. He proposed to hand over the property to the Respondent's offices located in Kisumu. The Claimant herein finalized the clearance process on 5 May, 2023 and on 26th May, 2022 the Claimant was paid a sum of Kshs. 1,606,129. 45 being his terminal dues. The Claimant has no outstanding leave days or is entitled to one-month salary in lieu of notice, damages for unfair termination or telephone benefits for the remainder of the contract term as he was summarily dismissed from employment after a disciplinary process.

39. The Respondents further aver that compensation under Article 23 of the constitution is not available under the doctrine of constitutional avoidance. The Respondents aver that the suit herein was brought prematurely, is an abuse of the court process and ought to be dismissed with costs.

40. In evidence, the respondent called Jessica Mbae, the Corporation Secretary and Director, of Legal Services who testified that through a letter dated 18th April 2022, the Respondents raised concern concerning the claimant's conduct and failure to provide leadership as the Director General, Kenya Maritime Authority, sought an explanation and requested him to show cause why disciplinary action should not be taken against him. He declined, neglected and or refused to respond to the show cause letter dated 18th April 2022. During a Special Full Board Meeting held on 26th May 2022, a decision was reached that the claimant be issued with a second notice to show cause why disciplinary action should not be taken against him. In a notice dated 26th May 2022, the Claimant was requested to show cause why disciplinary action should not be taken against him within 14 days of the show cause letter. He tendered a reply to the notice to show cause letter on 6th June 2022.

41. Ms. Mbae testified that during a Special Board Meeting held between the 5th to 7th of July 2022, the Claimant's reply was considered and was found to be inadequate and due to the gravity of the accusations against him it was resolved that the claimant be interdicted from exercising the powers and functions of the Director General, Kenya Maritime Authority with effect from 7th July, 2022. The board resolution was communicated to the Claimant vide a letter dated 7th July 2022 . The meeting also resolved that the Claimant be accorded an opportunity to be heard on the accusations against him and to this end he was issued with a hearing notice for 29th July, 2022. Instead, the claimant filed an application dated 18th July 2022 in Mombasa Elrc Constitution Petition No E012 OF 2022 seeking to stop the disciplinary hearing from being held. 28th of July, 2022 the court ordered that the disciplinary process in issue may continue following the applicable regulations, law and contractual provisions. It further directed the Respondents to provide relevant information or documents in the Respondents' possession as may be requested by the claimant.

42. Through a letter dated 28th July 2022 the Claimant sought an adjournment of the disciplinary hearing. In response, the respondent advised him to make the application for adjournment before the 2nd Respondent during the disciplinary hearing meeting on 29th July 2022. He did not show up for the disciplinary hearing on 29th July 2022 notwithstanding that the Respondents expended public funds towards preparations for the disciplinary hearing. Hence, at 5:09 pm the claimant forwarded to the 2nd Respondent a letter dated 29th July 2022 seeking adjournment of the disciplinary hearing and information by email.

43. The Special Full Board meeting held on 29th July 2022 considered and approved the Claimant's request to reschedule the hearing and further approved his request to be supplied with additional documents regarding the charges laid against him. On 5th August 2022, the Claimant was informed of the decision to reschedule the disciplinary hearing to 29th August 2022. On 11th of August, 2022 the Respondents forwarded documents requested by the Claimant for preparation of his defence. The board further rescheduled the hearing for 29th August. 2022.

44. The Petitioner stated that he will not appear at the Disciplinary Hearing scheduled for 29th August 2022 for the sole reason that the time and/or days are given to prepare for hearing from the date of receipt the document is inadequate". The Board acceded to the Claimant's request and rescheduled the Disciplinary Hearing to 16th September. 2022 at 10:00 am at the North Coast Beach Hotel.

45. Ms Mbae testified that on 16th September 2022, the Claimant did not attend the disciplinary hearing. He gave no reason for his absence and made no representation or tender apologies for his absence from the Disciplinary Hearing. The Board of Directors resolved that the Petitioner's contract as Director General, Kenya Maritime Authority be terminated and he be summarily dismissed and notice issued on the same date.

46. The claimant filed an amended petition dated 6th October 2022 in Mombasa Elrc Petition No. 12 OF 2022. He sought damages for unlawful termination of his employment. He did not file any appeal against the decision issued on 16 September 2022 on the summary dismissal.

47. Ms. Mbae testified that on 21st October 2022 during subsistence of Mombasa ELRC Petition No. 12 of 2022, the Public Service Commission issued a Circular Referenced dated 21 October 2022 to the effect that any provision of the law that requires an employee dismissed from service to forfeit pension claims is unconstitutional as it contravenes the provision of Article 41 (1) and (2) (b), 40 of the Constitution. Upon the Circular the Respondents requested the claimant to clear, settle outstanding liabilities obtain a clearance certificate then collect his terminal dues. Regulation 12. 13. 1 of the Kenya Maritime Authority Human Resource Policies and Procedure Manual, 2020 requires all employees to get a clearance certificate certifying that they have returned all assets to the Board and cleared all outstanding liabilities before the payment of final dues. At the time the Claimant brought this suit he had not cleared and obtained a clearance certificate certifying that he has returned all assets to the Board and cleared all outstanding liabilities to enable the Respondent to pay his terminal dues.

48. In an email dated 18th April 2023, the Claimant acknowledged having assets belonging to the Respondent and proposed to hand over the same to the Respondent's offices located in Kisumu. He cleared on 5th May 2023. On 26th May, 2023 the Claimant was paid a sum of Kshs. 1,606,129. 45 being his terminal dues. The suit has no merit and should be dismissed with costs.

49. At the close of the hearing, both parties filed written submissions.

Determination 50. The claimant’s case is that on 26 May 2022, the 1st respondent issued him with a notice to show cause why disciplinary action should not be taken against him over various unfounded allegations. He responded on 6 June 2022 and also requested to be supplied with various documents to allow him answer to specific issues. Instead of being supplied with the documents, the respondents issued a notice of interdiction on 7 July 2022. The claimant moved the court under ELRC Petition No.12 of 2022 seeking to secure his rights and the court directed the disciplinary process to proceed subject to the issuance of all the documents required. However, these documents were never supplied. The respondent issued disciplinary hearing notices but the claimant could not attend without the necessary and relevant records and on 16 September 2022 he was issued with a notice of summary dismissal. The claimant is seeking payment of damages, compensation and terminal dues.

51. The respondents admit that they issued the claimant with the notice to show cause for various acts of misconduct for failure to perform his duties with integrity, failure to implement board resolutions, abscondment of duty, insubordination of the board, misuse of public assets and failure to provide leadership and misappropriation of public funds. A show cause notice was issued and the claimant was allowed to respond but he opted to stall the disciplinary process by filing ELRC Petition No. 12 of 2022 the court allowed the disciplinary hearing to process and that the respondents should supply the claimant will all the relevant documents required for his response. The respondents complied as directed by the court but despite allowing the claimant adjournments, he refused to attend the hearing before the Board. On 16 September 2022 notice of summary dismissal was issued and the claimant has since been paid his terminal dues. The claim is an abuse of court process and should be dismissed with costs.

52. In the letter dated 16 September 2022, the 1st respondent dismissed the claimant from his employment on the grounds that;1. Failure to perform your duties with integrity;2. Failure to implement board resolutions;3. Abscondment of duty and failure to attend scheduled board meetings without lawful authority or before notice to the board;4. Insubordination of the board and lack of respect to lawful authority as required by the Public Service Commission Act;5. Misuse of public assets in case where you illegally interchanged vehicle registration number KCH 735Q with KCE 325D and registration number plate KCH 735Q was illegally fabricated to bear a civilian number plate other than the standard parastatal number contrary to the Traffic Act;6. Failure to provide leadership to the Authority staff;7. Misappropriation of public funds contrary to the Public Finance and Management Act;8. Chronic absence from office without lawful authority.

53. Before the summary dismissal, the claimant was interdicted through a letter dated 7 July 2022 before which he had been issued with a show cause notice dated 18 April 2022. The matters relating to the interdiction were outlined to include the alleged failure to perform duties with integrity, failure to implement board resolutions and attend board meetings, insubordination and misuse of public financial resources and unauthorized absence from office.

54. To these allegations, the claimant filed his response on 6 June 2022. He denied the allegations and noted that he had been diligent in his duties. The issue of renewal of ISO certification for the 1st respondent arose on 20 May 2020 before he was employed. The construction contract for the 1st despondent building had started 5 years before his employment and he required specific details for his alleged inaction. The alleged failure vehicle registration number plate KCH 735Q was interchanged with KCE 625D and number plate KCH 735Q, the claimant took the view that the mandate for registration of number plates of motor vehicles was with NTSA and he required details of any communications he had done in this regard. Over the alleged failure to attend and lead management meetings, the claimant noted that he was employed in November 2020 and had organized several meetings and required particular meeting details that he failed to attend to allow him to make a comprehensive response. On the alleged failure to support the board members in undertaking their mandate, the claimant requested details where such meetings were called and he failed to attend. About the alleged failure to maintain a proper accounting system and accepting payments of Ksh.6,271,327. 31 from 6 November 2020 to 1st April 2022 without supporting documents, the claimant noted that as the director general, he was paid foreign subsistence allowance per government regulations and SRC circulars. On the charge that he had failed to respond within the given timelines, the claimant noted that under the Human Resources Policies and Procedures, he was allowed 14 days to make any responses. Disciplinary power was well addressed under such policy and hence the notice to show cause was with a predetermined decision in violation of his rights, biased and before he was given a hearing.

55. At the core of his response, the claimant required various documents with particulars of the allegations made against him by the respondents.

56. Following his responses to the respondents, the claimant was interdicted through a notice dated 7 July 2022 and a resolution taken to invite him for a hearing on 29 July 2022. Upon this notice, the claimant filed ELRC Petition No. E012 of 2022 seeking to stop the disciplinary hearing and on 28 July 2022 the court directed the respondents to proceed with the same but ensure the issuance of the relevant information or documents as may be requested for adequate defence.

57. The claimant, through his advocates, wrote a letter dated 28 July 2022 seeking for adjournment of the disciplinary hearing scheduled for the same date because he required various records in preparation for his defence.

58. On the same date, 28 July 2022, the claimant wrote a personal letter using the 1st respondent's letterhead and requested 45 documents.

59. The claimant’s letter and that of his advocates were sent via email on 29 July 2022 at 5. 18 pm.

60. Earlier in the day, the respondents held a special meeting to address the request for adjournment and rescheduled the disciplinary hearing for 29 August 2022 after availing the claimant of all the documents he had requested. Notice to this effect was issued to the claimant through a letter dated 5 August 2022 and through a letter dated 11 August 2022 all the documents requested were sent to the claimant. A total of 117 documents were served.

61. The respondents further noted that they had requested the physical location of the claimant to serve him with further documents, but this request had not elicited any response.

62. The respondents advised the claimant to stop issuing communications using the 1st respondent’s letterhead and further notified him that John Odira Oming’o had been appointed as acting director general. The respondents also directed the claimant that according to Section 70(4) of the Public Service Commission Act and based on his letter of appointment, he was required to remain in his duty station (Mombasa) unless with leave by the Board of Directors.

63. Through his advocates, the claimant wrote a letter dated 28 July 2022 forwarded through email and noted he was not in Mombasa and was compiling documents in preparation for his defence. Another communication was on 28 July 2022. In the letter dated 19 August 2022, the claimant responded and noted that he had received bundles of documents from the respondents in two (2) boxes and he needed to carefully scrutinize them. Hence, the claimant advised that;

64. The above notwithstanding, our client shall not appear on 29th August 2022 for a hearing for the sole reason that the tine and/or days given to prepare for the hearing from the date of receipt of documents is not adequate. Notify your clients in advance to aver wasting of public resources in conducting the said board meeting. …

65. He also requested to adjourn the disciplinary hearing scheduled for 29 August 2022 which was allowed and placed for 16 September 2022.

66. The claimant followed up this letter with another dated 22 August 2022 asked for more documents and that he needed 30 days to be able to respond.

67. On 25 August 2022, the respondents responded and supplied further documents. The claimant responded on 1st September 2022 and asked for more documents and reiterated that he required 30 days to be able to respond. He challenged the fact that the board minutes supplied were signed by the secretary and not the board chairperson and hence required those signed by the chairperson.

68. Through a letter dated 30 August 2022, the respondent confirmed that the disciplinary hearing would proceed on 16 September 2022. The claimant did not attend as required.

69. A notice of summary dismissal was issued because the claimant had failed to address the allegations made against him despite an invitation to attend and defend himself.

70. The analysis above is made to demonstrate the back-and-forth engagements between the parties from the point the claimant was issued with a notice to show cause, the interdiction and leading to summary dismissal on 16 September 2022. The claimant remained in the employment of the respondent and following his interdiction through a notice dated 7 July 2022, he was directed to remain in his workstation, Mombasa and not to leave without the leave of the board.

71. The communications issued by the claimant were through his advocates. He admitted in his evidence-in-chief that he left Mombasa occasionally. On 5 August 2022, the respondents asked the claimant to state his location so as to be supplied with the documents he had requested. Indeed, in his response, he noted that 2 boxes of documents were sent to him and he needed time to go through them.

72. The essence of interdiction is a matter addressed by the court at length. This is to allow the employer to remove the employee from the shop floor for the purpose of conducting investigations as held in Kulundu v Chief Executive Officer, Independent Electoral and Boundaries Commission & 9 others (Petition E170 of 2022) [2023] KEELRC. Upon conclusion of investigations, the employee should be recalled back to work to answer the noted allegations and if the investigations result in nothing, the employee is allowed back at work.

73. During the period of interdiction, the employee is bound under the workplace rules and regulations as employment subsists. Hence, during such period, the employee should abide by the lawful and proper directions of the employer as held in Gilbert Michael Maigacho v Coast Development Authority [2021] eKLR.

74. Upon an invitation to address a show cause notice, the motions of Section 41(1) of the Employment Act require the employee to;(1)Subject to section 42(1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.

75. There are two parts to these provisions. Notice must be issued to the employee about the allegations made against him. Upon such notice, the employee should be invited to attend and address in the presence of another employee or a shop floor union representative of his choice. At this stage, shop floor procedures are not akin to criminal proceedings or a judicial process where the employee is an accused or a respondent calling for strict evidence. The employer, guided by the workplace policy must ensure the employee is given reasonable access to all necessary records to allow the employee to appreciate the charges made against him and to be able to make responses and representations. The requirements for external assistance at this stage is not contemplated under Section 41 of the Employment Act.

76. In this case, the claimant, was properly placed on interdiction s allowed under the workplace policy and directed to remain within Mombasa as his work station as he remained the employee of the respondent. He opted to operate from Kisumu or at a place outside Mombasa. Serving him with the documents required for his response resulted in a back-and-forth exercise with constant demands for different documents. Efforts to have him in the office to have access to such records were not addressed.

77. Eventually, the respondents directed him to attend the disciplinary hearing where he would be able to make his requests for the relevant documents. The claimant declined and was categorical that he would not attend unless the above notwithstanding, our client shall not appear on 29th August 2022 for a hearing for the sole reason that the time and/or days given to prepare for the hearing from the date of receipt of documents is not adequate. Notify your clients in advance to aver wasting of public resources in conducting the said board meeting. …

78. He took the view that until his demands were fully satisfied, armed with a court order that required the respondent to supply him with documents, he would not attend the disciplinary hearing. He would only do so under his terms.

79. An employee who fails to abide by lawful and proper directions of the employer only acts to frustrate his employment. If called to attend a disciplinary hearing, whether with justified reasons as to the motions leading to such invitations, the employee should seize the moment and attend. Such would give him the chance to urge his case and clarify the required records. Remaining outside the workplace and insisting that he would not attend until his set conditions were met only acted to the detriment of the claimant.

80. In the case of Wanyagah v Market Development Trust t/a Kenya Markers Trust (Civil Appeal 356 of 2017) [2023] KECA the Court of Appeal in addressing a case where the employee had refused to attend a disciplinary hearing until the employer met the conditions he had given held that such demands were unreasonable. The offer by the employer to have employee;… visit the office to access all records, documents and emails that he required so as to respond to the allegations against him was reasonable and generous of the respondent [employer]. The appellant [employee] declined and made conditions to have unrestricted access. The respondent and its chairperson then felt exasperated to make a decision as efforts to ensure procedural justice to the appellant had failed.

81. The rationale is that an employee who is allowed to attend on the shop floor but squanders the same through unreasonable demands cannot turn around and assert that his employment was terminated unfairly.

82. In the case of Jackson Butiya v Eastern Produce Limited Cause No.335 of 2011, the court held that an employee who squanders the internal grievance handling mechanisms provided for by the employer cannot claim to have been unfairly treated. The court aptly captured the issues as follows;… Well advised to attend disciplinary hearing on … accompanied by a fellow employee/witnesses of his choice the grievant opted to make unreasonable demands to have the entire workforce attend as his witnesses. The grievant lost his chance to a hearing at the shop floor. He cannot then turn around and assert his right to a hearing was violated

83. In Daniel Otieno Okun v Kenyatta University [2020] eKLR, the court addressed a similar case as herein where the employee was invited to attend a disciplinary hearing but took the view that he could only do so once some members of the panel were removed. He was found to have frustrated his employment by failing to adhere to lawful and proper directions by the employer.

84. In the case of Energy Regulatory Commission v John Sigura Otido [2021] eKLR the court held that;An employee who squanders the internal grievance handling mechanisms provided by an employer cannot come to Court and say “I refused to talk with those people and therefore I was not heard, order them to pay me.” It is not the role of the Court to supervise the internal grievance handling processes between employers and employees. The role of the Court is to ensure that such processes are undertaken within the law.

85. In this case, whatever demands the claimant had against the respondents, given the chance to attend the disciplinary hearing, he should have obliged and exploited the chance to agitate his case. Taking the standpoint that he could not attend on 29 August 2022 until he was issued with all documents only added to conduct that frustrated his employment. Several adjournments were allowed to accommodate the claimant but he remained adamant. The letters from his advocates were categorical. He would not attend a disciplinary hearing unless his set conditions were fulfilled. As outlined above, the motions of Section 41 of the Employment Act do not envisage third parties to the employment relationship but the respondents went ahead to indulge the claimant. He did not budge. He remained obstinate and refused to attend disciplinary hearings as directed.

86. Section 44(4) (e) of the Employment Act allows the employer to summarily dismiss an employee who fails to take lawful and proper directions. In this case, the claimant, invited by the employer to attend a disciplinary hearing on three occasions failed to attend. His employment was secured and terminal dues were paid to the last date of 16 September 2022. To fail to attend to prolong the employment relationship was no longer tenable.The claimant was frustrated his employment.

87. To urge a case that the board of the 1st respondent was not properly constituted to address the allegations made cannot find justification under the conduct the claimant was engaged. Called to respond to allegations made against him, the claimant could not turn around and accuse the respondent of rendering an account about themselves. The issues at hand required the claimant to attend and address, but he failed to seize the moment.

88. The termination of employment was justified and lawful. An order of reinstatement cannot be issued. Notice pay and compensation are remedies removed from the claimant.

89. On 24th February, 2023 the Claimant acknowledged receipt of Ksh.1, 606,129. 45 being payment of his terminal dues. He did not challenge these payments. He has since cleared with the respondent and all unpaid salaries during the interdiction period, leave days and any accrued benefits paid.

90. On the claim for payment for the remainder term of the contract, the finding that employment terminated lawfully and for justified reasons, such matter does not arise.Accordingly, the claim is without merit and is hereby dismissed. Costs to the respondents.

DELIVERED IN OPEN COURT AT MOMBASA THIS 25 DAY OF JULY 2024. M. MBARŨJUDGEIn the presence of:Court Assistant: Japhet Muthaine…………………………………………… and ………………….………..…………..