[2015] KEELRC 271 (KLR)

REPUBLIC OF KENYA

EMPLOYMENT&LABOUR RELATIONS COURT

AT NAIROBI

CAUSE NO. 429 OF 2013

DR. PRIMUS APAMO OCHIENG………….……….........................................................…CLAIMANT

VERSUS

THE PRINCIPAL SECRETARY MINISTRY OF HEALTH…….……………….….1ST RESPONDENT

THE HON. ATTORNEY GENERAL……............................................................…..2ND RESPONDENT

JUDGMENT

The Claimant sued the Respondents seeking to have the issue of his interdiction resolved. The Claimant averred in his claim filed on 20th March 2014 that the 1st Respondent had placed him on interdiction and half salary from 4th December 2009. The Claimant averred that he was interdicted on the alleged offence of irregular encashment of cheques totaling Kshs. 61,394. 75. The Claimant sought lifting of the interdiction and interim relief for his withheld salary and the training in South Africa, costs of the suit and interest.

The Respondent only filed Grounds of Opposition on 26th March 2014 in response to the interlocutory application filed on 20th March 2014 contemporaneously with the statement of claim and did not file a defence to the action.

The Claimant and Respondent consented to have the matter resolved through the provisions of Rule 21 of the Industrial Court (Procedure) Rules 2010. From the documents filed in support of the claim, the Claimant has shown that the interdiction meted out to him was on the basis of cheques that were cashed in Siaya District when the Claimant was posted there. It emerged that the District Accountant had made some alterations to payments due by encashing cheques that were intended for payment of VAT. In his defence to the show cause letter issued, the Claimant indicated that the cheques he countersigned were accompanied by necessary documentation indicating the payments were legitimate and that the cheques were not in the name of Commissioner of VAT. The Criminal Investigations Department investigated the misappropriation of funds and established that disciplinary action be taken against the officers who handled the cheques and noted that the officer who was responsible for the drawing of the cheques was retired in the public interest while the Claimant was interdicted. The Claimant was not confirmed to his position as Assistant Director of Medical Services due to the interdiction. He also was about to miss a scholarship to further his studies in oncology at the Groote Schuur Hospital in Cape Town, South Africa. The Court granted interim relief that was to permit his travel to join the University of Cape Town. What remained to be resolved was the interdiction and the attendant reliefs sought in respect of half pay, promotion and the costs of the suit plus interest.

In submissions filed on 11th December 2014 pursuant to directions made by the Court, the Claimant submitted that the interdiction was highly irregular and in breach of Rule G33(13) of the Code of Regulations of Public Service and the Claimant’s constitutional rights and freedoms as guaranteed under Articles 10, 41(1), 47, 48, 50 and 73 of the Constitution of Kenya. The Claimant urged the Court to find the interdiction and the administrative process was, in light of the period it had taken to arrive at a verdict, as being in breach of the Claimant’s right to a fair administrative process. He submitted that the provision of Article 47(1) was breached as he had a right to administrative action that was expeditious, efficient, lawful, reasonable and procedurally fair. The Claimant relied on the case of Menginya Salim Murgani v Kenya Revenue Authority [2008] eKLRwhere Ojwang J. (as he then was) held that ‘employer and employees have always been closely bound together. As with their ancestors, master and servant, lord and vassal, or master and slave, the need of each other is mutual in all respects save, as Adam Smith said, the critical one, that the employee’s need is more pressing and immediate.‘ The Claimant also relied on the decision in Republic v Cabinet Secretary Ministry of Health and 2 Others ex parteElizabeth Awino Onyango Misc. Application 391 of 2013 where Odunga J. granted the ex parteApplicant the relief she had sought which was lifting of the interdiction and stated that ‘Disciplinary action is no doubt an administrative action and under Article 47(1) of the Constitution, a person being subjected to such process is entitled to an expeditious, efficient and fair process and may justify the grant of judicial review. It may also amount to abuse of power and discretion.‘ The Claimant submitted that he should have been confirmed in his employment as permanent and pensionable on or about 12th January 2005 and that the failure by the 1st Respondent to comply with the provisions of the law made it appropriate to grant the order sought. The Claimant also cited the International Convention on Economic, Social and Cultural Rights on the position that state parties to the covenant recognize the right to work which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts. The Claimant also sought to rely on the provisions in the covenant which provided that the steps to be taken by the state parties to achieve full realization of this right shall include technical vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full productive employment under conditions safeguarding fundamental and economic freedoms to the individual. The Claimant submitted that the Public Service Commission had on 15th July 2009 recommended the Claimant to fill the position of Assistant Director of Medial Services. The Claimant submitted that he was entitled to damages and relied on the case of Daniel Musinga t/a Musinga & Co. Advocates v Nation Newspapers Ltd [2006] eKLR.

At the time the Claimant moved the Court he had been under suspension from 4 years. The 1st Respondent had interdicted the Claimant on allegations of misappropriation of funds and the resultant investigations did not implicate the Claimant criminally.The Claimant was subjected to the disciplinary process but the disciplinary process seems to have stalled in that since the Claimant gave his explanation there has been no other action other than placing him on interdiction. No sanction was meted out as sought in the surmise of the Criminal Investigations Department of the Police. After investigations had cleared the Claimant of criminal culpability, any wrongdoing the Claimant may have engaged in could have been resolved by imposition of administrative action such as warning, severe reprimand or any other sanction permitted by the Public Service Code of Regulations. As no action was taken in respect to the administrative action, the 1st Respondent is guilty of infringing the constitutional rights of the Claimant. The interdiction by the 1st Respondent should not have subsisted from 4th December 2009 to date. I agree with my brother Odunga J. who stated that disciplinary action is no doubt an administrative action and under Article 47(1) of the Constitution, a person being subjected to such process is entitled to an expeditious, efficient and fair process. The Claimant has not been subjected to an expeditious, efficient and fair process. In the Court’s view, such failure is sufficient basis for the Court to find in favour of the Claimant. Regarding the claim by the Claimant to be confirmed to the position he was ostensibly appointed, the Court cannot grant the relief sought as the employer has the prerogative as to where the Claimant should be placed. He has obtained further training and it is hoped that the 1st Respondent would not act in a manner inimical to the public interest by refusing to promote the Claimant who has acquired more skills at public expense and should be deployed to serve the people of Kenya who contributed to his education at University of Cape Town’s Groote Schuur Hospital. Cancer is devastating many and the extension of services that the Claimant can offer must be embraced by the Respondents. The Claimant’s claim is successful to some extent and the Court enters judgment for the Claimant as follows:-

a. A declaration that the interdiction of the Claimant was unlawful and highly irregular and in breach of Article 47(1) of the Constitution of Kenya.

b. The Claimant’s salary and allowances withheld being the ½ salary withheld since interdiction be paid to the Claimant forthwith

c. The Claimant be paid costs of the suit

d. The Respondent do pay interest on the above sums at Court rates from the date of judgment till payment in full.

Orders accordingly.

Dated and delivered at Nairobi this 29th day of October 2015

Nzioki wa Makau

JUDGE