By The Weekly Vision
The Ethics and Anti-Corruption Commission has been caught flat-footed by the Employment and Labour Relations Court which declared that a contract termination of one of their officer Mr. AMG was unlawful and ordered compensation. In a ruling dated August 24, 2023, by Judge M.N. Nduma, it was noted that “the claimant has suffered loss of income and support for himself and his family due to the unlawful conduct by the EACC”.
Mr AMG had filed suit via a Memorandum of Claim dated June 26, 2018, which was amended on February 12, 2021. He had prayed for damages for unlawful and unfair termination, which were the equivalent of 12 months’ salary in compensation for the unlawful and unfair termination, among other orders sought. According to his statement, he was employed by the EACC as an Intelligence Officer 2 in the Department of Intelligence and Operations Directorate of Investigations on January 1, 2015, and was posted to the Malaba satellite office, where he served for one year.
He was then transferred to Nairobi Headquarters and was placed at the EACC Intelligence office until February 1, 2017, when he was transferred to the Lower Coast Regional Office, Mombasa. As of September 2017, he held the position of Investigations Officer 2, earning a monthly salary of Kshs. 178,090.
However, sometimes, in December 2016, he went on leave with permission, but his supervisor claimed that he was absent from the office without permission except for five days of leave that had been authorized. He produced an email dated February 2, 2016, written by Abraham Kemboi to one Solomon Lemunen, in which Abraham Kemboi advised that he was transferred from the Malaba office to Headquarters with effect from February 1, 2016.
While in Malaba, he utilized 13 days of his annual leave, and he was therefore entitled to an additional 17 leave days in the financial year 2015/2016. However, he was served on 1/3/2016 with a notice to show cause of instant date written by T. Baithalu, Deputy Director of Intelligence and Operations, in which he was accused of gross misconduct and absenteeing himself from duty without leave.
He told the court that he was not called to a hearing regarding that matter, and he received another letter dated April 20, 2016, written by one Abdi Mohammed, Director of Investigations, calling upon him to show cause why he had absented himself from work without leave on March 29th, 30th, and 31st, 2016 and April 19th, 2016 despite a warning from his supervisor.
Further, he claimed that on April 18, 2016, he had gone to Nairobi Hospital to see Doctor Johnson Murila (an orthopaedic surgeon) to undress his injured left foot and a review, and the doctor had recommended two days of rest due to pain and swelling. However, by the time he arrived at Mombasa from leave, he was made aware of a memo dated 4/4/2017 written by one George Ojowi, Assistant Director, Lower Coast Regional Office, reporting to the Deputy Director, Human Resources, Ethics & Anti-Corruption Commission, that he had absented himself from office from 29/3/2017 to 4/4/2017 and efforts to reach him by phone had not borne fruit.
He testified that though he appeared before the disciplinary committee, he was not given a fair hearing and that he appeared before the said committee on August 17, 2017, but was not allowed to question officers who gave false testimony against him. That he was only allowed to question Mutembei and not the others. He went on to claim that his dismissal was unlawful and unfair and that he believed that he was victimized and discriminated against by his supervisors in Nairobi and Mombasa.
At Nairobi, he was denied the opportunity to conduct field investigations, which was part of his job requirements, and was not offered training opportunities like his counterparts. That he was unfairly denied promotion and was generally discriminated against by his supervisors.
One Mohammed Guyo, CPL No. 64369, testified that he worked for DCI at Central Police Station and that Mr AMG was his friend from secondary school days. And claimed that his friend was treated badly by his supervisors, was not wanted, and would be sidelined during tours of duty at the Integrity Center. That he was conspicuously idle in his office, mostly alone, without work being assigned to him.
He claimed that his friend was suspected by his supervisors to be an NIS mole, hence he was sidelined and discriminated against at work, and that he was denied travel and training opportunities as a result of discrimination at Integrity Center and was transferred most of the time.
The judge noted, “The manner in which EACC conducted the disciplinary hearing from the minutes produced by R.W.2 left a lot to be desired, and the Court is in agreement with C.W.1 that he was not given adequate opportunity to fairly defend himself”. Further, the judge noted, “In the final analysis, the Court finds that the respondent did not prove it had valid reason(s) to summarily dismiss the claimant from employment and that the first respondent failed the fairness test”.
The final order reads in part, “In the final analysis, judgment is entered in favour of the claimant against the respondent as follows: (a) Kshs. 178,090 instead of one month’s notice. (b) Kshs. 1,068,540 is the equivalent of six months’ salary in compensation for the unlawful dismissal.
