[2024] KEELRC 13249 (KLR)

Tindi v Board of Directors, Kenyatta National Hospital; Kamuri (Interested Party) (Petition E081 of 2024) [2024] KEELRC 13249 (KLR) (27 November 2024) (Judgment)

Neutral citation: [2024] KEELRC 13249 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Petition E081 of 2024

B Ongaya, J

November 27, 2024

IN THE MATTER OF ARTICLE 22(1) OF THE CONSTITUTION OF KENYA, 2010; AND IN THE MATTER OF ALLEGED CONTRAVENTION OF RIGHTS AND FUNDAMENTAL FREEDOMS UNDER ARTICLES 27, 73 AND 232 OF THE CONSTITUTION OF KENYA, 2010; AND IN THE MATTER OF THE PUBLIC SERVICE COMMISSION ACT (NO. 10 OF 2017); AND IN THE MATTER OF THE HUMAN RESOURCE POLICY AND PROCEDURES MANUAL OF THE KENYATTA NATIONAL HOSPITAL

Between

George Tindi

Petitioner

and

Board of Directors, Kenyatta National Hospital

Respondent

and

Dr Evanson Njoroge Kamuri

Interested Party

Judgment

1. The petitioner filed the petition dated 29. 05. 2024 through the firm of Adera & Kenyatta Advocates. The petitioner prayed for reliefs as follows:a.A declaration that the failure by the respondent to initiate administrative action against the Chief Executive Officer of Kenyatta National Hospital is contrary to public interest and a violation of the values and principles set out in Articles 10, 73, and 232 of the Constitution.b.A declaration that the continued stay in office of the Chief Executive Officer of Kenyatta National Hospital in the face of serious allegations and investigations of corruption and economic crimes is contrary to public interest and a violation of the values and principles set out in Articles 10, 73, and 232 of the Constitution.c.A judicial review order of mandamus compelling the respondent to initiate administrative action concerning the serious allegation of corruption and economic crimes against the Chief Executive Officer of Kenyatta National Hospital and make costs of the petition.

2. The petition is based upon the following grounds:a.The interested party was on 22nd May 2024, arrested and bonded by the Ethics and Anti-Corruption Commission (EACC) for alleged corruption and economic crimes in the sum of Kshs. 634,465,000/- related to the exercise of the functions of the office of the Chief Executive Officer (CEO) of Kenyatta National Hospital.b.On the same day, 22nd May 2024, the EACC obtained court orders to freeze Kshs. 28,000,000/- in the account of the interested party, monies suspected to be the proceeds of corruption and economic crimes committed by the Interested Party while exercising the functions of the CEO of Kenyatta National Hospital.c.The interested party has been accused of alleged and extremely serious or grave offences involving corrupt use of public funds allegedly committed while in office and so it is in the public interest that the investigations are not impeded or interfered with.d.The interested party while he is in office as the CEO of Kenyatta National Hospital, has the capacity to interfere with or impede the ongoing investigations not only by the EACC but by any other authorized and competent persons and authorities including the respondent.e.According to the Human Resource Policy and Procedures Manual of the Kenyatta National Hospital, any officer is to be precluded from the exercise of his functions to allow investigations into allegations that may lead to his dismissal.f.The allegations against the interested party are gross misconduct offences under the Human Resource Policy and Procedures Manual of Kenyatta National Hospital and so the order being sought herein is not only in the public interest but also apt.

3. In the Supporting Affidavit dated 29th May 2024, the petitioner, a Kenyan taxpayer, stated that the interested party herein is facing allegations of corruption and economic crimes relating to procurement irregularities, which are gross misconduct offences under section 11 of the Human Resource Policy and Procedures Manual of Kenyatta National Hospital. That notably, the respondent is responsible for the discipline of the CEO of Kenyatta National Hospital under section 11. 2.2 of the Manual and is mandated to investigate, in the public interest, the aforementioned allegations made against the interested party.

4. The petitioner stated that following the grave allegations against the interested party, he wrote to the respondent to undertake internal investigations against the interested party but the respondent did not reply. He stated that the failure, inaction, or refusal of the respondent to initiate and undertake the said administrative action against the interested party is dereliction of public duty that calls for the intervention of the Court in the public interest.

5. While noting that investigations by the EACC against the interested party’s office of the CEO were ongoing, the petitioner stated that the interested party is likely to interfere with the investigations and thereby defeat the public interest with regard to accountability and transparency. He stated that it was therefore important that the interested party is barred and precluded from performing the functions of the office of the CEO and accounting officer of Kenyatta National Hospital to imbue the public with confidence that he will not interfere or impede the investigations.

6. The petitioner urged that the criminal investigations by the EACC are not a bar to the respondent undertaking its internal administrative investigations against the interested party. That the respondent has a duty to ensure that the values and principles of governance under Article 10 of the Constitution of Kenya, and the values and principles of public service are observed by all members of staff of Kenyatta National Hospital including the interested party. That however with its inaction, the respondent has deliberately failed to ensure compliance with the values and principles of governance and public service.

7. Further, the petitioner stated that the use and management of public funds is a great constitutional obligation and includes principles that public money shall be used in a prudent and responsible way. That the Constitution also sets out principles that guide public procurement including transparency. He stated that, therefore, the continued stay of the interested party in the office of CEO and accounting officer begets the possibility of either concealing other forms of corruption and economic crimes or committing more in a mockery of public interest.

8. In the further affidavit dated 12th July 2024, the petitioner stated that under section 8 of the Mwongozo, the respondent is obligated to ensure that policies, institutional frameworks and administrative procedures of Kenyatta National Hospital actively support the implementation of the Constitution of Kenya and comply with the provisions of the Leadership and Integrity Act, 2012 and Public Officers Ethics Act, 2003. That the respondent Board being an independent institution, it cannot claim that its hands are tied in the face of the serious allegations against its appointee, the interested party.

9. The petitioner further pleaded as follows:a.The respondent has a duty to make inquiries in the instant case and take appropriate action against persons alleged or suspected of misuse of public funds.b.The respondent’s deliberate and loud inaction violates Article 10 of the Constitution on values and principles of governance. The violations are alleged to include: failing to ensure that the interested party as CEO transparently applies public resources; failure to instituting mechanisms and steps to hold the interested party accountable in use of public funds; failing to ensure that the interested party maintains integrity of the office held; and failing to uphold rule of law by administratively holding the interested party accountable.c.The respondent has further violated Article 73 of the Constitution. In particular it is alleged the respondent has failed to ensure public trust in funds allocated to the hospital; failing to uphold integrity, dignity, honesty, discipline and honour in the office of the CEO as held by the interested party; and, failure to ensure the overriding public interest in the management of the Hospital by the interested party.d.It was alleged values and principles of public service in Article 232 of the Constitution were violated. It was alleged that the respondent had failed in its duty in the manner the interested party had failed to uphold high standards of professional ethics; economic use of public resources; and, accountability and transparency in use of public resources.

10. The respondent filed the replying affidavit of Calvin Nyachoti, Director of Legal Services and Corporation Secretary dated 24. 06. 2024, and, filed through Kounah & Co. Advocates. It was stated that the CEO had not been charged in any court of law nor had the Board received any complaints against him relating to corruption or economic crimes and procurement irregularities. The respondent stated that there is therefore no reason for it to initiate administrative investigation against the interested party as the petitioner is solely relying on newspaper cuttings, which is not a credible source for the Court to consider.

11. The respondent urged that fair labour practices could not be sacrificed at the altar of allegations whose basis is yet to be tested in Court. It was noted that the applicant’s demands undermine the principles of justice and due process as they pre-emptively penalise the interested party without a thorough examination of the facts.

12. The replying affidavit stated that the respondent was not aware of the misconduct as was alleged against the interested party on the alleged misappropriation, misuse of funds and any other levelled accusations as alleged for the petitioner.

13. The parties filed their respective submissions as directed by the Court. The Court has considered the material on record and returns as follows.

14. The respondent submits that per Anarita Karimi Njeru –Versus- Republic (1976) eKLR the petitioner in the instant constitutional petition must set out with a reasonable degree of precision that of which he complaints, the constitutional provisions said to be infringed, and the matter in which the provisions are alleged to be infringed. It is submitted for the respondent that the petitioner has alleged violation of Articles 10, 73, and 232 but failed to show the specific actions or omissions by the respondent and therefore the constitutional threshold has not been satisfied. It is urged that the petitioner has relied on unsubstantiated media reports and no concrete evidence has been provided to implicate the respondent. The respondent has submitted that the petitioner has failed to establish by evidence the following allegations as urged: that the EACC has successfully conducted an investigative operation against the interested party for involvement in various forms of corruption; that the interested party has been involved in various forms of abuse of office and procurement irregularities to the tune of Kshs.634, 465,000. 00; the EACC has obtained a court order freezing or preserving Kshs.28,000,000. 00 in the interested party’s account; the investigation of the interested party are in public domain; and, that the respondent has been prompted to initiate internal investigation against the interested party. It is submitted that the petitioner has failed to show by evidence the alleged corruption, abuse of office and procurement irregularities against the interested party. It is not therefore shown that there is valid action or inaction by the respondent and which has resulted in violation of Articles 10, 73 and 232 of the Constitution.it is submitted that the respondent has not been required to exercise its powers and has failed to do so. Thus, it is submitted that the petition fails to meet the threshold for constitutional petitions. That per Bitange Ndemo –Versus- Director of Public Prosecution & 4 Others [2016]eKLR , statutory power donated to any organ is not to be exercised in an unreasonable manner

15. For the petitioner, it is submitted that indeed the EACC obtained court orders authorizing the EACC officers to enter the offices and residential premises of the interested party per the EACC press statement of 22. 05. 2024. The Court has perused the press statement. It states that the EACC is investigating allegations that the interested party has engaged in abuse of office, conflict of interest and irregular award of tenders amounting to Kshs.634, 465,000. 00 to companies associated with him. The Court has considered the entire record and the EACC press release is the only material base the petitioner has anchored his case.

16. There is no dispute that the respondent is vested with powers of disciplinary control over the interested party. The petitioner alleges inaction on the part of the respondent to exercise that power in view of the press release by EACC. The petitioner’s case is that because the EACC is investigating the allegations as published in the press release, the respondent should thereby invoke its disciplinary powers.

17. The Court returns that an employer even in the public service may invoke and initiate disciplinary proceedings against an employee only if at the time of the proceedings the employer genuinely believes that, as at the time of the proceedings, the allegations levelled against the employee exist. In the instant case, the only thing against the interested party per the press release is an allegation against the interested party and subject of on-going investigations. In absence of any other material but for the press release and its contents, the Court considers that the respondent has not failed by omission to exercise its powers of disciplinary control over the petitioner.

18. Section 43 of the Employment Act 2007 states thus:(1)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. (2)The reason or reasons for termination of a contract are the matters that the employer at the time of termination of the contract genuinely believed to exist, and which caused the employer to terminate the services of the employee.

19. Again , section 45 of the Act states:1. No employer shall terminate the employment of an employee unfairly.2. A termination of employment by an employer is unfair if the employer fails to prove—(a)that the reason for the termination is valid;(b)that the reason for the termination is a fair reason— (i) related to the employee’s conduct, capacity or compatibility; or,(ii)based on the operational requirements of the employer; and,(c)that the employment was terminated in accordance with fair procedure

20. The Court finds that the allegations of investigations constituted in the EACC press release would not pass the tests set by sections 43 and 45 of the Act on validity of reasons and fairness of reasons or justification of the termination, if, the respondent were to institute and continue a disciplinary process against the interested party. In other words, more information and material evidence showing the culpability of the interested party would be required on the part of the respondent to validly exercise or invoke the power of disciplinary control against the interested party. To that extent, the Court upholds the submission that it would be unreasonable for the respondent to initiate the disciplinary process against the interested party merely upon the allegations in the EACC press statement and whose contents declare to be inherently, allegations. The logical flow of things would be that the destiny of the investigations is rested and decisions taken thereafter one way or the other.

21. Accordingly, the Court returns that the petitioner has failed to establish the constitutional violations as was alleged against the respondent. Indeed and as urged for the respondent, the petitioner has not shown that there was a demand that the respondent performs a public or statutory duty upon reasonable grounds and the respondent declined or neglected to act by commencing and continuing disciplinary action against the interested party. The petition must therefore collapse as unjustified.

22. While making the findings, the Court considers that the provisions of the Constitution alleged to be infringed were pleaded as Articles 10, 73 and 232 and the manner of the infringement was pleaded and alleged to be the omission by the respondent to initiate disciplinary control against the interested party. However, the Court has found that the petitioner has failed to show that the press release by the EACC and its allegations of investigations against the interested party by itself constituted a valid reason or a fair reason for the respondent to lawfully or fairly trigger, continue and conclude a disciplinary process against the interested party. At best, the press release communicated a process in the nature of a preliminary investigation which ordinarily would be confidential and may be published only if there is an established case of culpability to answer and in which event, the respondent’s prerogative to exercise the power of disciplinary control would accrue. And even then, unless it is shown that despite demand to act the respondent had neglected or refused to act, a compelling order or the judicial review order of mandamus, as it were, would not issue. Further, unless it was shown that the public body’s public or statutory or other duty to act was not undertaken unreasonably so, then it is that the exercise of discretion by omission falls for recognition and respect within the discretionary prerogative of the person or body vested with authority to perform the duty. For the Court to intervene, it must be shown that all salient conditions to perform the duty have accrued as prevailing, it has been demanded of the duty bearer to act, and, the duty bearer has unreasonably omitted to act. The Court has found that the petitioner has failed to satisfy that criteria to justify granting of the order of mandamus as prayed for.

23. The petition was in public interest and there will be no orders on costs.In conclusion, the petition dated 29. 05. 2024 is hereby dismissed with no costs.

SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS WEDNESDAY 27THNOVEMBER 2024. BYRAM ONGAYAPRINCIPAL JUDGE