SALIM KEA BATUYU VS COUNTY EXECUTIVE COMMITTE MEMBER FINANCE AND PLANNING TANA RIVER COUNTY AND COUNTY SECRETARY TANA RIVER COUNTY AND 2 Others

R

The claimant has amended his Memorandum of Claim several times. Under the Further Amended Statement of Claim; the claimant is seeking the following orders against the respondents;

1. A declaration that the 3^rd respondent's internal memo dated 19 July 2019 and 9 October 2019 are unconstitutional and illegal.
2. A declaration that the 3^rd respondent does not have any authority in law to stop the claimant’s salary, emoluments and benefits as long as the claimant remains the Deputy Governor.
3. An order of injunction halting the withdrawal of the claimant’s staff.
4. Reinstatement of the claimant’s official motor vehicle.
5. Reinstatement of the claimant’s salary and official allowances to enable him to conduct his official duties.
6. Reimbursement of the amount the claimant has personally spent on hiring a motor vehicle from 14 October 2020 to the day of reinstatement of his official motor vehicle.
7. An injunction to halt the intended stoppage of the claimant’s salary.
8. Reimbursement of Ksh.450, 000 the amount the claimant utilized to service his official motor vehicle.
9. Full payment of underpaid gratuity.
10. General damages for inconvenience occasioned to the claimant.
11. Reimbursement of car hire charges.
12. Reimbursement of catering costs which were budgeted for but not remitted to the office of the Deputy Governor.

Claim

The claimant is an adult male, the Deputy Governor of Tana River County, and the 4th respondent. The County of Tana River elects the 1st respondent. The 2nd respondent is mandated to manage and oversee the operations of Tana River County. The 3rd respondent was elected in 2017 as the governor of Tana River County. The 4th respondent is established under the County Government Act.

The claim is that the claimant, as the Deputy Governor of the 4th respondent, was mandated to deliver public services with coordination of the 3rd respondent. During his tenure as Deputy Governor, the claimant was entitled to allowances, facilities, and personal staff from Tana River County to deliver services to the residents. The claimant is also entitled to express statutory rights under the Employment Act, which include;

1. Allocation of subordinate staff to assist him in service delivery;
2. Allocation of a motor vehicle  as his duties may require;
3. Allocation of financial allowances to enable him to operate his duties;
4. Allocation of privilege facilities to facilitate his official duties.

The claim is that the 3rd respondent has frustrated the claimant several times and made performing duties challenging. The respondents purchased new motor vehicles from the county executive members except for the claimant, and as a result, the claimant's official car had to be repaired several times. From August 2019 to February 2020, the respondents failed to pay for the repairs of the claimant's official vehicle, leading to the same being detained at the garage. The claimant had to pay Ksh.450, 000 to have the vehicle released. The respondents withdrew the official car, forcing the claimant to hire transport.

The claim also states that the respondents stopped paying the claimant's salary. Upon withdrawing the official car, the claimant was forced to hire a vehicle at Ksh.20,000 per day.

The third respondent issued a memo to the first despondent dated 19 July 2019 to stop salary and allowance payments to the claimant.

The third respondent issued a memo dated 9 October 2020 directing the first respondent to stop paying salary, privileges, withdrawal of personal staff, and other privileges to the claimant without any lawful cause.

As a result of these illegal and unlawful directions by the 3rd respondent, the claimant's salary for October 2020 was not paid. Due to the internal memos, the 1st and 2nd respondents stopped paying the claimant. This will force the claimant to use personal finances for official duties. The conduct of the 3rd respondent is unconstitutional and without justification.

During his tenure as Deputy Governor, the respondents were supposed to remit 31% of their basic salary to the County Pension Fund, which is a similar amount to the County's. The claim is that 31% of the salary was Ksh.115, 552.50 and that the respondents were to remit a similar amount for 60 months. The respondents failed to remit their gratuity contributions, resulting in the claimant being underpaid.

Despite the County Assembly passing a budget for the operations of the Deputy Governor's office, the said funds were not availed, compelling the claimant to spend his funds on catering expenses for guests to his office.

The claimant testified in support of his case.

The respondent entered appearance but did not file a response. Based on the claimant's evidence, the respondents opted not to cross-examine him.

The claim is not challenged in any material way.

At the close of the hearing, the parties agreed to file written submissions. Only the claimant complied and filed his written submissions, reinforcing his pleadings and evidence.

Determination

The position held by the claimant as Deputy Governor is secured under Article 180(5) and (6) of the Constitution;

(5) Each candidate for election as county governor shall nominate a person qualified for election as county governor as a candidate for deputy governor.

(6) The Independent Electoral and Boundaries Commission shall not conduct a separate election for the deputy governor. Still, it shall declare the candidate nominated by the person who is elected county governor to have been elected as the deputy governor.

Hence, upon the elections, the claimant became the constitutional holder of the office of Deputy Governor, Tana River County.

The position held by the claimant as Deputy Governor, Tana River County, is protected under the Constitution and the County Government Act. The claimant was part of the County executive committee under Article 179 with a mandate of the deputy chief executive of the County and the official deputy to the Governor, the 3rd respondent. See Martin Nyaga Wambora v Speaker, County Assembly of Embu & 5 others Petition No. 3 of 2014.

The claimant was the official deputy to the 3rd respondent. His functions as the Deputy Governor were to deputize the Governor in the execution of his mandate and perform other tasks that may be assigned to the Deputy Governor by the Governor, as held in Bernard Muia Tom Kiala v Speaker of the County Assembly of Machakos & 4 others Miscellaneous Civil Application 113 of 2014.

The position of Deputy Governor is a constitutional office; the terms and conditions of such office cannot be varied without the approval of the officeholder. Where such terms and conditions are varied, the Salaries and Remuneration Commission must be involved and issue the necessary circular for implementation by the respondents. The County Assembly of Tana River, as the body tasked with approving the County's budgets, must also be engaged for its approval.

The claimant argues that the 3rd respondent stopped his salary through a memo dated 19 July 2019. The memo by the 3rd respondent to the 1st respondent, CECM Finance and Economic Planning, noted that;

Deliberate absenteeism from key County government activities and functions has been a significant feature of the above-named County government executive member.

You are hereby directed to stop further payment to the subject until otherwise directed. Please note this and take the necessary action as soon as possible.

Without any response by the respondents to the claim, the court denied crucial information on how the 3rd respondent decided to stop the salary payment to the claimant as the Deputy Governor. If the alleged absenteeism is true, the Constitution and the County Government Act have laid down mechanisms for addressing such matters. The stoppage of the salary suo motto without the due process envisaged under the Constitution and the law is unconstitutional and unlawful. Kahiro Kimani v Fatuma Abdalla [2016] KECA 547 (KLR) and Dr. Alfred Mutua v The Ethics & Anti-Corruption Commission & 4 Others, CA No. Nai. 31 of 2016 (UR 22 of 2016), courts have maintained that before an adverse action is taken against a party,  a reasonable opportunity to be heard must be given.

In this case, the stoppage of salary payment is devoid of due process and contrary to the Constitution and the law under which the claimant was appointed and given a mandate to work as the Deputy Governor of Tana River County.

The memo dated 19 July 2019 is unconstitutional and illegal and hereby declared null and void.

The claimant, as the Deputy Governor of Tana River County, was entitled to official transport while in office. The respondents were to service the vehicle.

In this regard, the claimant was allocated motor vehicle registration no. GKB 796D. The motor vehicle broke down, brought to the respondents' attention, but they failed to make repairs or have it paid for from the garage. The claimant was forced to service and pay for the vehicle repairs. He submitted records and invoices for the repairs for reimbursement without success. The claimant incurred costs of Ksh450, 000 which is refundable based on the filed documents.

The claimant claimed that he was underpaid for his due gratuity.

The payment of gratuity to county executives is a matter that has been addressed at length by the SRC in its various circulars. Gazette Notice No. 2888 of 1 March 2013 set an entitlement to gratuity for county state officers at 31% of basic pay for each year served. The respondents cannot negate the rights due to the claimant without the due process and deny him the rightful gratuity for time served as held in Ondieki v Kisii County Assembly Service Board & 2 others [2023] KEELRC 355 (KLR) and Kisumu County Public Service Board & Governor, Kisumu County, Prof. Peter Nyongo v Samuel Okuro, Samwel Ondola, Jacob Muga, George Akongo, Cephas Kasera, Derek Obura, George Koyier & Seline Odhiambo Bonyo [2018] KECA 472 (KLR).

The claim for Ksh.690, 000 in underpaid gratuity is justified.

The claimant is also seeking payments for car hire charges because, upon the official vehicle being repaired, he was forced to seek alternative means of transport and hired another vehicle at ksh.20,000 per day. He appeared in court under a Certificate of Urgency, and the 3rd respondent admitted having detained the claimant's official vehicle. The court compelled the respondents to release the car.

The claimant's case is that he was forced to hire a vehicle based on the respondents' budget estimates. Under the 2020/2021 budget, there was an allocation of Ksh.15 million for the 3rd respondent, under which his expenses should be reimbursed. The claim is for Ksh.6, 830,000, which is not challenged in any material way and is hereby awarded based on the records submitted.

The claimant is seeking reimbursement for catering costs that were budgeted for but not remitted to his office. He has filed various invoices and delivery notes. A scan of these documents reveals interference with numbers and figures. Some are overwritten, and others reflect changes from either 2020 or 2021. The receipts are generic and bear similar items of purchase.

There must have been variances in how the claimant entertained guests in his office. Despite the catering items being budged for by the respondents, the records submitted speak to manipulation for these proceedings, and the claimant cannot benefit from such.

On the claim for payment of general damages for inconveniences caused to the claimant by the respondent's actions, the dues assessed above and awards return him to the position he should have maintained had he been fully facilitated in his office. What is due is the cost of initiating these proceedings due to the respondents' unconstitutional and unlawful conduct.

Accordingly, judgment is hereby entered for the claimant against the respondents in the following terms;

1. A declaration that the 3rd respondent's internal memo dated 19 July 2019 is unconstitutional, null and void.
2. Salary withheld by the respondents shall be tabulated and paid within 30 days from the date hereof, if at all due and unpaid;
3. Motor vehicle repairs Ksh.450,000
4. Gratuity Ksh.690,000
5. Motor vehicle hire Ksh.6, 300,000.
6. Mention 12 March 2025 to confirm (b) above.
7. Costs of the suit.

Delivered in open court at Mombasa this 11 day of February 2025.

M. MBARŨ

JUDGE

In the presence of:

Court Assistant: Japhet

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