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JudgmentWESLEY MOKUA NYARIKI VS Attorney General46 min read

WESLEY MOKUA NYARIKI VS Attorney General

Employment and Labour Relations Court at Nairobi Employment and Labour Relations Court (ELRC) · · J. N. Abuodha

Summary

The claimant, a former Ministry of Public Works employee, alleged wrongful interdictions and disciplinary actions by the respondent (the Ministry) following his professional activities and leadership initiatives. The claimant sought quashing of interdictions, restoration of missed promotions, and compensation for professional opportunities lost. The respondent denied the claimant's allegations, asserting the claimant was bound by public service regulations and faced disciplinary actions for procurement malpractice and improper handover of duties. The court did not provide a specific ruling in the given text, but the claimant's case centered on alleged wrongful disciplinary measures and professional setbacks.


  1. By a statement of claim filed on 30th November, 2018 which the Court regrets to note is quite lengthy, at times incoherent and argumentative, the claimant averred inter alia
  2. The claimant was joined the ministry of public works in 14th December 1993 as an Architect Assistant.
  3. In 1995 the claimant sat for his professional examination and passed and in 1996 I got registered with the board of Architects and Engineers and given registration No. A777.
  4. The working environment was not good at the ministry and in October 2003 the claimant and other Architects mobilized themselves and did a memo to the Chief Architect, seeking his Audience.
  5. The architects demanded for transformational leadership. Among the things we demanded for included:
  6. Good working conditions that included proper furniture.
  7. Automation and computerization of the department.
  8. Working Photocopies and printers and working telephone services
  9. Clean office space
  10. Job promotions when they are due
  11. Training, seminars and masters programs
  12. Better remunerations and allowances.
  13. Soon remarkable improvement on the areas we highlighted could be seen. Many computers were bought through projects and new furniture was bought. Doors were opened for those who wanted to go for masters’ degrees. The claimant was among the first to take the chance to apply for the Master of Construction at the University of Nairobi.
  14. The claimant was appointed to come up with a write-up on how to improve salaries, allowances and other remunerations. However, the recommendations contained were never discussed in any forum and were therefore never implemented.
  15. The seniors seem to have taken it very badly and the claimant became a target of hatred by most senior architects in the ministry.
  16. The claimant was interdicted soon after the start of my master program, Staying in job group ‘L’ for 13 years instead of 3, and in job group ‘N? for 7years instead of 3. Right now, many officers who joined the civil service more than 15 years later are in job groups higher than the claimant.
  17. In early 2005 the claimant was interdicted on flimsy grounds However, in the absence of credible reasons for the interdiction, the interdiction was lifted in the month of September 2006 and in October 2006, the claimant continued with the Masters studies, which had been disrupted by the interdiction.
  18. At the end of my study leave and course work for the Masters program, I reported back to the Ministry headquarters the claimant noted that service delivery to the client ministries had been affected badly, the most affected and frustrated were the projects undertaken by State Corporations (parastatals). The concerned institutions never achieved their performance contracting targets on their infrastructure projects as long as the ministry of public works was involved in running their projects. They complained constantly that MOW delayed their projects. The claimant wrote a proposal on how to solve the problem and presented it to the then PS and then Works Secretary.
  19. The works secretary liked the idea and sought to use it to improve service delivery to all client ministries and other Government agencies. In the short term the Works Secretary appointed the claimant to coordinator construction projects undertaken by the state corporations.
  20. In the long term the Permanent Secretary appointed a committee headed by Senior Principal Supt. QS Kibusui Ndonga as chair and me as the secretary. The other members came from all the departments both technical and non-technical.
  21. Using my proposal as the blue print, the team headed by QS Ndonga with me as secretary came up with the way forward on service delivery to our clients. This was later to be fine tuned at what was later discussed in two meetings at Bogoria Hotel that was christened as Bogoria I and Bogoria II. It’s the outcome of this meetings that guided information of the teams in the technical departments as they are today at the state department of public works headquarters.
  22. However, the chief Architect took my proposal very badly. He clearly thought I was trying to undermine him. He sought and managed to have me transferred from the Headquarters to Garissa as a punishment for trying to by pass him.
  23. However, the PS reversed the transfer, instead the claimant got transferred to Thika as a District works officer.
  24. The claimant was later transferred and appointed the officer in-charge of supplies Branches.
  25. At supplies branch, the claimant continued with transformational leadership by giving, small African and vulnerable Business people chance to supply to Government of Kenya Agencies through Supplies Branch and by the tenders of March 2014, the claimant had set aside a big portion of tenders for the vulnerable groups.
  26. The claimant was very keen on how the money was being used. At one time the claimant requested the head of accounts at the then ministry of Land housing and urban development to delay payment of two certificates because he believed work worth the amount that had been certified had not been done.
  27. On or about the 30th December 2015 the claimant was redeployed to back to the department of Architecture for redeployment.
  28. The claimant did the handing over report to the officer who was to take over from him and both of them signed the handing over report and he left the department.
  29. On or about the 11111 day of February 2016 the Permanent secretary wrote a letter to the claimant and the officer who took over from him raising several queries over the handing over report a matter which the officer taking over did not query. That letter was not delivered to the claimant him. Again, the permanent secretary wrote a follow up letter dated 19lh February 2016 which was not delivered until the claimant got word that he had a letter he had not responded and he had to go personally and pick it on 17th March 2016.
  30. The claimant responded appropriately but on or about the 5lh of May 2016, the claimant was interdicted for gross misconduct over the same queries he had responded to.
  31. On or about the 25th of May 2016 the claimant responded to the letter of interdiction and addressed all the issues raised therein.
  32. On or about the 8th of February 2017 the claimant received yet another letter asking for an explanation over the same issues of procurement.
  33. The claimant responded on or about the 5th day of March 2017.
  34. On or about the 20th of April 2017 the claimant received a letter of notification of retirement on public interest.
  35. The claimant challenged the notification by a letter dated 8th May 2017 and again requested for documents and a chance to be heard before the committee.
  36. That on or about the 29th November 2017, the claimant received a letter lifting the interdiction but maintaining the guilt.
  37. That the claimant is not satisfied against the suspension verdict, loss of yearly salary increment, loss of opportunity of applying for promotions and professional opportunities which were lost during that period, putting the claimant under observation for one year and withholding a one-year increment is another way of still making sure that the claimant remains in punishment even when it is obvious the allegations against him have not been and cannot be proved.
  38. The claimant avers that those actions are ways of making sure that the claimant is completely destroyed professionally and making his life miserable by denying him the professional opportunities and growth in the industry after failing to push him out of the civil service through retirement on public interest.
  39. The claimant therefore sought orders among others:
    1. A declaration that the interdictions were wrongful and the same be set aside and quashed
    2. The claimant be given all promotions which he missed as a result of the perceived discipline period together with perks that flow from them.
  40. The respondent filed a response to the claim on 5th July, 2019 and averred inter alia:
  41. In response to Paragraph 10 and 11 of the Statement of Claim, the Respondent states that the Claimant was addressed a show cause letter dated 15th February 2005 for gross misconduct/negligence requiring him to respond within fourteen (14) days on why he should not be dismissed from service and the Claimant was consequently interdicted with effect from 1st February 2005. Further, the Claimant gave his response vide letter dated 28th February 2005. (Annexed hereto and marked AG 1 is a copy of letter dated 15th February 2005.
  42. The Respondent states that vide letter dated 29th August 2006, the Claimant’s interdiction was lifted with effect from the date of his interdiction 1/5/2005 and the Claimant was warned and informed that he would lose his annual increments for two years and the Claimant acknowledged receipt of the warning letter vide letter dated 5th September 2006. (Annexed hereto and marked AG-3 (a) and (b) are copies of letters dated 29th August 2006 and 5th September 2006 respectively)
  43. The Respondent denies the contents of paragraphs 16 and 17 of the Statement of Claim and reiterates that the Claimant, having been engaged as a civil servant is bound by the Public Service Commission Regulations and as such, he can be posted or transferred to work anywhere within the Republic of Kenya.
  44. In further response to Paragraph 16 and 17 of the Statement of Claim, the Respondent states that the Claimant was appointed as District Works Officer, Garissa District vide letter dated 24th May 2011 and the Claimant subsequently sought reversal of the transfer vide letter dated 30th May 2011 and his request was considered and accepted. (Annexed herewith and marked AG 4 (a) and (b) are copies of letters dated 24th May 2011 and 30th May 2011 respectively).
  45. In response to Paragraph 18 of the Statement of Claim, the Respondent states that the Claimant was deployed and took over duties of the Officer-in-charge of Supplies Branch on 20th February 2013. (Annexed hereto and marked AG 5 is a copy of letter dated 21st February 2013).
  46. The Respondent denies the contents of paragraphs 19, 20 and 21 of the Statement of Claim and the Claimant is put to strict proof thereof. The Respondent further states that when the Claimant was in-charge of Supplies Branch, he was severally involved in procurement malpractices and interdicted for financial misconduct/negligence that led to the loss of public funds.
  47. The Respondent further states that a result of the Claimant’s negligence of duty, special audits were conducted by the Auditor General and the Claimant was on various dates summoned by officers from the Ethics and Anti-corruption Commission and the Parliamentary Public Accounts Committee to appear before them to answer to queries raised in the special audit reports. (Annexed hereto and marked AG 6 are Copies of letters dated 25th August 2016, 27th September 2016, 29th September 2016, 17th October 2016, 21st October 2016, 2nd December 2016, 5th December 2016).
  48. The Respondent denies the contents of paragraphs 23 of the Statement of Claim and the Claimant is put to strict proof thereof. The Respondent further states that in fact, the Claimant went on transfer without properly handing over and the Claimant was addressed a letter dated 11th February 2016 requiring him to answer to the queries raised hereto and marked AG 7 is a copy of letter from the Principal Secretary dated 11th February 2016.
  49. in further response to Paragraph 23 of the Statement of Claim, the Respondent states that the Principal Secretary authored another letter to the Claimant demanding him to disclose more information in his handing over failure to which disciplinary process would be commenced against the Claimant. (Annexed hereto and marked AG 8 is a copy of letter dated 19th February 2016).
  50. The Respondent denies the contents of Paragraphs 24, 25 and 26 of the Statement of Claim and states that the Claimant was reported to the Principal Secretary vide an internal memo dated 22nd April 2016 by the Officer-in-Charge Supplies Branch to have committed financial/procurement related offences.
  51. In further response to Paragraphs 24, 25 and 26, the Respondent states that the Claimant was addressed a show cause letter Ref No. C/1993074331/24 dated 5th May 2016 to show cause why severe disciplinary action should not be taken against him on account of gross misconduct and the Claimant was interdicted to allow for investigations and given twenty one (21) days to respond to the show cause letter. (Annexed hereto and marked AG 9 is a copy of letter dated 5th May 2016).
  52. The Respondent further states that the Principal Secretary in his letter dated 10th June 2016 noted that the Claimant did not deny error and only offered mitigation and he should be charged for all financial costs accruing from the misconduct and gross negligence.
  53. The Respondent further states that the Claimant’s case was submitted to the MHRMAC meeting held on 9th September 2016 which considered the Claimant’s case and recommended that his salary be reinstated w.e.f 1st May 2016 being the date it was stopped and he be given advisory warning not to take up responsibilities that are above his qualifications and area of expertise.
  54. In response to Paragraph 27 and 28 of the Statement of Claim, the Respondent further states that the Principal Secretary State Department of Public Works appealed against the verdict of 9th September 2016 and brought on board the additional reports against the Claimant touching on documentary report on supplies branch, due diligence report on supplies branch and diverse letters on flawed tenders and recommended that the Claimant should be held to account for all the financial costs accruing from the misconduct.
  55. The Respondent further states that the Claimant’s case was deliberated by MHRAC at a meeting held on 30th January 2017 which observed that the Claimant had not exonerated himself from the allegations levelled against him and recommended that he be addressed another show cause letter to include additional charges.
  56. The Respondent states that the Claimant was accordingly addressed a letter dated 8th February 2017 on gross misconduct and was given 21 days to respond to the queries and the Claimant’s interdiction was also upheld and the Claimant responded vide his letter dated 5th March 2017. (Annexed hereto and marked AG 10 is copy of letter dated 8th February 2017).
  57. The Respondent states that the Claimant’s submissions were considered and the Committee noted that the Claimant was not able to exonerate himself from the charges and recommended that the Claimant be retired in the public interest and his case be referred to the Ethics and Anti-Corruption Commission (EACC) for investigation. (Annexed hereto and marked AG 11 is a copy of MHRMAC minutes of meeting held on 23rd May 2017)
  58. The Respondent further states that the Minutes of deliberation concluding that the officer be retired in public interest were approved by the Cabinet Secretary vide item no. 22- 2016/2017(2) of 22nd March 2017.
  59. In response to Paragraphs 29 and 30 of the Statement of Claim, the Respondent states that a letter of intention to retire the Claimant in the public interest in keeping with regulation was addressed to the Claimant vide letter dated 20th April 2017 and the Claimant was required to respond within 21 days and the Claimant responded vide letter dated 8lh May 2017. (Annexed hereto and marked AG 12 is copy of letter dated 20th April 2017 Ref: Notification of Retirement in Public Interest)
  60. The Respondent states that the Claimant’s appeal was considered by MHRMAC which noted that the Claimant had been given opportunity in the show cause letters with adequate time to respond and the Claimant did not adequately address the same nor exonerate himself from the allegations and therefore the Committee upheld its earlier recommendation that the Claimant be retired in the public interest and his case be referred to the Ethics and Anti-Corruption Commission (EACC) for investigation.
  61. In response to Paragraph 31 of the Statement of Claim, the Respondent states that in a meeting of MHRMAC held on 11th October 2017 and after the subsequent approval by the Cabinet Secretary, the Claimant’s interdiction was lifted with effect from the date it was imposed and the following was also decided:
  • That the Claimant’s one year salary increment be deferred
  • That the Claimant be put on close supervision for a period of one

(1) year.

  • That the Claimant be severely warned against any acts of gross misconduct as a repeat of the same will lead to summary dismissal and the same should serve as the last warning.
  1. The Respondent further states that the Claimant acknowledged that he had read and understood the provisions of the letter and consequently, the interdiction was lifted with effect from the date it was imposed and the Claimant paid the resultant arrears.
  2. The Respondent further states that the Claimant subsequently communicated his intention to appeal the decision of the committee to the Public Service Commission (PSC) and he eventually appealed and the PSC is yet to make a decision on the appeal.
  3. The Respondent further states that as a result of the Claimant’s appeal to the PSC, the decision to defer one years’ salary increment was put on hold, up to now awaiting the decision of the Commission.
  4. The Respondent states that the Claimant’s interdiction was legal and in accordance with the Public Service Commission Act and Regulations and the Claimant was interdicted for financial misconduct /negligence of duty contrary to the Public Procurement and Disposal Act and the Public Officers Ethics Act 2013.
  5. The claimant filed a lengthy witness statement which he adopted in Court as his evidence in chief. The claimant also relied on the documents filed in support of the claim. The claimant stated among others that he graduated from the University of Nairobi in 1991 and applied for the position of assistant architect which was advertised as vacant by the PSC. According to him, 45 positions were advertised and only 17 of them were shortlisted and thereafter only 2 of them were taken.
  6. According to the claimant, when he joined the Ministry, not much was in place on how the new recruits should be oriented. The situation deteriorated until many of the architects could not take it anymore. In October, 2003 they mobilized themselves and wrote a memo to the Chief Architect seeking audience to present their grievances. On 27th October, 2003, the Chief Architect together with other senior architects agreed to meet them. At the meeting he read the list of their grievances and possible solutions expected. They demanded for:
    1. Good working conditions that included proper furniture
    2. Working place photocopiers and printers and telephone services
    3. Clean office space
    4. Job promotions when due
    5. Trainings, seminars and Masters Programs
    6. Better remuneration and allowances.
  7. The claimant further stated that:
  8. I completed my university undergraduate studies at the UON, in the year 1991 June. Soon after that an advertisement appeared for 45 positions on the local media from the public service commission for the position of assistant architects.
  9. I applied for the position of assistant architect, being the starting designation for architects. I constantly checked on the response from the ministry. A short while later, seventeen of us were called for interviews at the Public Service Commission. I noticed after a short while that out of the 17 of us who had attended the interviews at the PSC only 2 were absorbed by the ministry of works. That was around early 1992. No explanation was given why others were not taken.
  10. A year later a number from the class behind us were absorbed. This made me want to know what could have happened. I approached the personnel department at the MOW to inquire. Mr. Samson Nyaanga (personal officer II then) and Mr. Ndeda (Ag Chief supt. Architect then) who had actively participated in communication with the PSC when the advertisement in which I participated appeared on paper confirmed that indeed 45 positions had been declared but they had no explanation why only two were recruited. They referred me to a particular office at the Public Service Commission who established that all the seventeen of us had been recruited but he could not explain why it was not communicated to us. He then did letters to all the 15 of us. If s through this my effort that made the rest of the 15 of us to be absorbed towards the end of 1993. I personally joined the ministry of public works in 14th December 1993.
  11. When we joined the ministry not much was in place on how new recruits shouldn’t be oriented. Even furniture was not issued. I continued to work hard though. In 1995 I sat for my professional examination and passed. In 1996 1 got registered and given registration No. A777.
  12. The situation continued to deteriorate till many of the architects could not take it anymore. In October 2003 we mobilized ourselves and did a memo to the Chief Architect, seeking his audience to present our grievances. On 27th October 2003, the Chief Architect with all senior architects agreed to meet us. I read the list of grievances and the possible solutions we expected. We also gave recommendations of the directions we expected the ministry to take. In short, we demanded for transformational leadership. Among the things we demanded for included:
  • Good working conditions that included proper furniture,
  • Automation and computerization of the department.
  • Working Photocopies and printers and working telephone services
  • Clean office space
  • Job promotions when they are due
  • Training, seminars and masters programs
  • Better remunerations and allowances.
  1. Soon remarkable improvement on the areas we highlighted could be seen. Many computers were bought through projects and new furniture was bought. Doors were opened for those who wanted to go for masters’ degrees. I was among the first to take the chance to apply for the Master of Construction at the University of Nairobi.
  2. I was appointed to come up with a write-up on how to improve salaries, allowances and other remunerations. However, the recommendations contained were never discussed in any forum and were therefore never implemented.
  3. However, while everybody else supported the agitation, the seniors seem to have taken it very badly. I became a target of hatred by most senior architects in the ministry. I became a marked man. I got isolated instead of getting the credit for raising the concerns of everybody.
  4. The price I had to pay includes but not limited to an interdiction soon after the start, of my masters program, staying in job group ‘L’ for 13 years instead of 3, and in job group ‘N? for 7 years instead of 3. Right now, many officers who joined the civil service more than 15 years later are in job groups higher than me.
  5. In early 2005 I was interdicted on flimsy grounds but the main reason was because I had led a group of architects to the CA to highlight his non-performance. However, in the absence of credible reasons for the interdiction, the interdiction was lifted in the month of September 2006. In October 2006, 1 continued with my Masters studies, which had been disrupted by the interdiction.
  6. At the end of my study leave and course work for the Masters program, I reported back to the Ministry headquarters as I continued writing the dissertation. Despite the tribulations I had gone though, my quest to agitate for transformational leadership came to play when I noted again that while I was away serving my interdiction and studying for the masters program, laxity had cropped back and service delivery to the client ministries had been affected badly. Requests from client ministries would take up 3 months or more to be responded to.
  7. The most affected and frustrated were the projects undertaken by State Corporations (parastatals). The concerned institutions never achieved their performance contracting targets on their infrastructure projects as long as the ministry of public works was involved in running their projects. They complained constantly that MOW delayed their projects. I wrote a proposal on how to solve the problem and presented it to the then PS and then Works Secretary.
  8. He liked the idea and sought to use it to improve service delivery to all client ministries and other Government agencies. In the short term the Works Secretary appointed me to co-ordinate construction projects undertaken by the stated corporations.
  9. In the long term the PS appointed a committee headed by Senior Principal Supt. QS Kibusui Ndonga as chair and me as the secretary. The other members came from all the departments both technical and non-technical.
  10. Using my proposal as the blue print, the team headed by QS Ndonga with me as secretary came up with the way forward on service delivery to our clients. This was later to be fine tuned at what was later discussed in two meetings at Bogoria Hotel that was christened as Bogoria I and Bogoria II. It’s the outcome of this meetings that guided information of the teams in the technical departments as they are today at the state department of public works headquarters.
  11. However, the chief Architect took my proposal very badly. He clearly thought I was trying to undermine him. He sought and managed to have me transferred from the Headquarters to Garissa as a punishment for trying to bypass him.
  12. However, the PS reversed the transfer, instead I got transferred to Thika as a District works officer. As Thika district works officer, I did my work diligently. I was later appointed to head two districts as district works officer.
  13. At the time the then works secretary was promoted to Permanent Secretary of the Ministry of public works, supplies Branch had serious administrative problems. The new PS remembered about my effort to bring transformational leadership to the ministry at various times despite resistance and appointed me the officer in-charge of supplies Branches to salvage the situation. He transferred the fighting officers away from supplies branch. As a way of taking, I organized a tree planting exercise at supplies Branch compound as part of environmental conservation, a thing no other officer in charge had ever done.
  14. At supplies branch, I continued with my quest to introduce transformational leadership. First, I immediately noted that small African and vulnerable Business people were not given a chance to supply to Government of Kenya Agencies through Supplies Branch. I took a contentious effort to set a side business for them. In the tenders of March 2014, 1 set aside a big portion of tenders for the vulnerable groups.
  15. For the first time supplies branch was allocated Kshs.100M under the Development vote. In the year that followed, supplies Branch was allocated Kshs. 150M. While the 1st allocation of Kshs.100M was not utilized due to its late arrival, the second allocation of Kshs. 150M was able to have the office block at Supplies Branch refurbished, the car parking and some driveways and the petrol station also refurbished.
  16. 1 was very keen on how the money was being used. At one time I requested the head of accounts at the then Ministry of Land, Housing and Urban development to delay payment of two certificates because I believed work worth the amount that had been certified had not been done.
  17. On or about the 30th December 2015 I was redeployed to back to the department of Architecture for redeployment.
  18. That I did the handing over report to the officer who was to take over from me and both of us signed the handing over report and I left the department.
  19. On or about the 11th day of February 2016 the Permanent secretary wrote a letter to myself and the officer who took over from me raising several queries over the handing over report a matter which the officer taking over did not query with the sole aim of trying to fix me. That letter was not delivered to me. Again, the permanent secretary wrote a follow up letter dated 19th February 2016 which was not delivered until I got word that I had a letter I had not responded and I had to go personally and pick it on 17th march 2016.
  20. That I responded appropriately but on or about the 5th of May 2016 I was interdicted for gross misconduct over the same queries I had responded to.
  21. On or about the 25th of May 2016 I responded to the letter of interdiction and addressed all the issues raised therein.
  22. On or about the 8th of February 2017 I received yet another letter asking for an explanation over the same issues of procurement. That I responded on or about the 5111 of March 2017.
  23. On or about the 20th of April 20171 received a letter of notification of retirement on public interest.
  24. That I challenged the notification by a letter dated 8rtl May 2017 and again requested for documents and a chance to be heard.
  25. That on or about the 29th November 2017, 1 received a letter lifting the interdiction but maintaining the guilt.
  26. That I am not satisfied against the suspension verdict, loss of yearly salary increment, loss of opportunity of applying for promotions and professional opportunities which were lost during that period.
  27. That putting me under observation for one year and withholding a one-year increment is another way of still making sure that I remain in punishment even when it is obvious the allegations against me have not been and cannot be proven because none was true. It is one way of making sure that I am completely destroyed professionally and making my life miserable by denying me the professional opportunities and growth in the industry after failing to push me out of the civil service through retirement on public interest.
  28. That I severally requested to be given documents and be allowed to appear before the Ministerial Human Resource Advisory Committee (MHRAC) meetings to demonstrate my innocence; the documents were never supplied to me, and the opportunity to appear before MHRAC was never accorded to me.
  29. In cross-examination the claimant stated that he was first appointed in 1993 as Assistant Architect Job Group K and was at the time of the trial still working as Superintendent Architect Job group P. He conceded that he was interdicted twice. The interdictions were on account of complaints received from clients over additional expenditure. He stated that he was invited for disciplinary hearing but he never received the letter. He further stated that he acknowledged the terms lifting the interdiction. They included loss of annual increments and further that he stayed in Job Group L for 13 years and Job Group N for 11 years. This according to him was contrary to Public Service policy.
  30. The claimant conceded that promotion was based among other things on performance and qualifications. According to him, the movement to Job Group P was a succession plan. Succession plan, he explained was where employees who have been in a position for too long are moved upwards without any promotion interview by PSC. He however did not produce any document to support this contention. In re-examination he stated that the succession plan took place after he had filed the current suit.
  31. The respondents witness Mary Maingi filed a witness statement dated 4th March, 2024 which she relied on as her evidence in chief together with the list of document’s filed in support of the response. In her witness statement she stated in the main that:
  32. 1 am the Assistant Director, Human Resource Management in the State Department for Public Works.
  33. I am responsible for human resource management and development and this includes dealing with recruitment, selection, promotions, training and disciplinary issues amongst others.
  34. The Claimant was employed as an Assistant Architect, Job Group K. with effect from 14th December,1993 in the then Ministry of Public Works and Housing. He, was promoted to Architect I, Job Group L with effect from 21st May, 1997 in the same Ministry. He was again promoted to the position of Superintending Architect, Job Group M, in the Ministry of Public Works with effect from 9th September, 2009. With effect from 10lh December. 2010, he was promoted to Senior Superintending Architect, Job Group N in the Ministry' of Public Works.
  35. Previous Charge: Arch Wesley Nyarikl’s case was deliberated in the Ministerial Human Resource Management committee MHRMAC held on 31st August, 2005 on charges of negligence of duty. The matter was deferred because the Architectural Department was not represented.
  36. Arch, Wesley Nyariki s case was resubmitted to the Ministerial Human Resources Management Advisory Committee (MHRMAC) meeting held on 28lh September 2005, which observed that some officers mentioned in the case involving Arch.Wesiey Nyariki and Mr, Mundla were not addressed letters to provide statements on their Involvement in the case.
  37. The Committee deferred Arch, Nyariki's case and recommended that a sub committee be set up to interview those mentioned in the report. Arch. Wesley Nyariki's was informed of the recommendation vide letter Conf. 1988130788/56 dated 9th February,2006 and invited to appear before the Ministerial Human Resource Management Advisory Sub-committee on 10th February,2006 at 8.30a.m.
  38. The case was deliberated by the Ministerial Human Resources Management Advisory Committee (MHRMAC) held 4th July, 2006 which observed that; -
  39. Arch. Wesley Nyariki performed his duty of supervising NHIF Water Board Project poorly by; -
  40. Not taking site minutes
  41. Not supervising the contractor thus resulting to poor workmanship
  42. Causing variation of Kshs.4,720,300.00 without authority
  43. Proceeding for a master's Program without proper handing over his duties.
  44. Arch Wesley Nyariki displayed professional negligence since he was assigned to supervise a project on behalf of the ministry which he failed to
  45. He made false allegation against his group leader Mr. Mundia that he received a bribe of Kshs.300,000.00 which he could not qualify.
  46. The committee recommended that:
  47. Arch, Wesley Nyariki be reduced in rank/demoted from Architect JG'L to an assistant Architect IJG K.
  48. He be served with severe reprimand
  49. His interdiction be lifted.
  50. The Department to clear his outstanding fees to enable him complete his Masters course because he had stopped the course due to non-payment of fees as the case had not been finalized.
  51. He be re-evaluated/observed and feedback given to the Permanent Secretary after one (1) year.
  52. Other previous charges
  53. It was reported that during a routine check in the offices that Arch

was absent from office without authority. He was addressed inter office memo Ref.B/59/F/173 dated 7th March 2011 which required him to show cause why disciplinary action should not be taken against him which he never responded.

  1. Inquiry into allegations of corruption In respect of procurement at

NYS and the Ministry of Devolution and Planning vide letter Ref. No. EACC.6/21/3 (183) dated 9th March 2016 still ongoing.

  1. Investigation into the special audit report of the auditor-general on

the accounts of the National Youth Service (NYS) vide letter NA/DCS/PAC/2016/286 dated 2nd December, 2016.

  1. ln the current matter under consideration, Architect Wesley Nyariki was the officer in charge of Supplies Branch from February 2013 to December, 2015. As one of the Department in the State Department for Public Works which is located in the Industrial area of Nairobi it deals with procurement of common user Items in the entire Government, among other functions. Architect Nyariki was replaced by S. J, Mokua as the officer in charge in December, 2015,
  2. In his internal memo to the PS dated 22nd April, 2016 Mr. S. J. Mokua reported that Arch. Nyariki among others were involved in malpractices in the procurement process in the following tenders.
  3. Tender No.SB/27/2013-2014: Supply of provision and food stuff to Government Ministries, Department and Institutions
  4. Tender No.SB/37/2013-2014: Supply of insecticides, chemicals and equipment to Government Mlnistries/Departments and Institutions
  5. The other two officers involved were:
  6. Mr. Crispin Ndirangu Klruga, Senior Supply Chain

Management Officer, PF/NO,1979025213

  1. Mr. Paul Amenya Odeko, Supply Chain Management Assistant III, PF/N0.2003010575.

The malpractice involved award of tenders to: -

  1. An unsuccessful bidder with respect to the Supply of Provisions and food stuff, 9/27/2013-2014.
  2. To a firm/company which had not participated in the tendering process with respect to supply of insecticides, chemicals and equipment to Government Ministries/Departments and Institutions SB/37/2013-2014.

The offences amount to Gross Misconduct by a Government Officer

  1. In his letter to the Director, Human Resource Management, Ministry Lands; Housing and Urban Development, the Principal Secretary, State Department for Public Works (Ref. No. MLHUD/A/1OO/133 dated 22nd April, 2016) reported that he suspected that Architect Nyariki among others may have been, involved: in: Financial Misconduct/offence in the course of their work. He directed the Director, HRM&D to carryout investigations on the alleged misconduct/offence on the part of the officers and institute appropriate disciplinary action if necessary.
  2. In the letter Ref. No. C/1993074381/8 dated 5th May, 2016, the Director HRM&D addressed a show cause letter to Arch. Nyariki informing him that the office contemplated taking severe disciplinary action against him which may include dismissal from the service on account of gross misconduct. However, before it was done, he was given an opportunity to show cause why the Director, HRM &D should not proceed as intended and given twenty-one (21) days to respond. Meanwhile, the officer was interdicted with effect from 5th May, 2016 to allow for investigations.
  3. In his response through letter dated 25th May, 2016, Architect Nyariki admitted to possible inclusion and omissions of crucial information and blamed it on inexperienced staff, interns and students on attachment. He further states in his letter that some bidders did complain of omission of items from their contracts, which they had tendered for, won and were listed in their letters of notification and when it was brought to his attention, he rectified them even, after the Principal Secretary had signed the contract. However, the MHRMAC was not satisfied with this explanation and as such, the responsibility to ensure that correct procedures were followed Arch. Nyariki, being the officer in charge of Supplies Branch. Further, procurement regulations do not allow altering/

tampering of the tender committee minutes once they are approved by the accounting officer (Principal Secretary)

  1. During the MHRMAC meeting held on 9th September, 2016 the committee recommended that Mr. Nyariki's fulI salary be reinstated- with effect from 2016 being the date he was put on half salary and be given; advisory warning not; to take up responsibilities that were above his qualifications and area of expertise.
  2. However, the recommendation was not implanted after it was established that the malpractices at Supplies Branch were more extensive and covered more issues than the earlier two mentioned at the beginning of this statement.
  3. In letter Ref No 1993074381 dated 1st February, 2017 addressed to

Architect Nyariki, it was noted that contracts Itemized 86-106 contained some anomalies and that they were suspended on grounds of alterations and overpricing of schedules which had not been approved by the Ministerial Tender Committee (MTC) on diverse dates from September, 2013 to April 2014 contrary to the Public - Procurement and Disposal Act (2005).

This was in addition to other allegations touching on the officer.

  1. Arch. Nyariki was requested to explain the alterations, overpricing and clarify the discrepancies between the deliberations' and the

recommendations of the Ministerial Tender Committee and what was captured In the Supplies Branch Document verification report.

  1. As a result, the officer was addressed another letter Ref. No,

1993074381/23 dated 8th February 2017 touching on further allegations which amounted to gross misconduct on his part. Meanwhile the interdiction was upheld pending conclusion of investigations. The officer replied vide his letter dated 5th March, 2017. Finer details, are in his letter, a copy of which has been provided.

  1. During the MHRMAC meeting held on 22nd March 2017, the committee noted that Arch. Nyariki was not able to exonerate himself from the charges of gross misconduct leveled. against him and recommended that:

i. Arch, Wesley Nyariki be retired in Public Interest

ii) The case of Arch Wesley Nyariki be referred to the Ethics and

  1. In the letter Ref. No. C/1993074381/39 dated 20th April, 2017, the officer was notified of the MHRMAC recommendation for him to be retired in Public Interest and given twenty-one (21) days to make representation, if any, failure to which the intended action would be taken.
  2. Arch. Nyariki responded through his letter dated 8lhMay, 2017 addressed to the Cabinet Secretary, a copy of which has been provided.
  3. Meanwhile, Architect Nyariki appealed against the decision to retire him in Public interest to the Public Service Commission (PSC) through his letter dated 19th March, 2019.
  4. During the MHRMAC meeting held on 11'1* October 2019 the members had an opportunity to peruse through the revised Public Service Commission Act, 2017. First, the PSC Act, 2017 provides that all disciplinary cases touching on officers had to be concluded within a period of six months, failure to which the matter had to be reported to PSC with explanations for the delay. Second, the PSC Act 2017 dropped retirement in Public Interest as a punishment.
  5. The MHRMAC had in its meeting of 22ndMarch, 2017 recommended that Architect Nyariki be retired form service in public interest. Faced with limited choices the committee observed that it was necessary to review its earlier decision.
  6. At around the same time, that is October, 2017 it came to the attention of the committee that most of the documents touching on the said malpractices at Supplies Branch had been destroyed by unknown people and could not be traced.
  7. Following these developments, the committee considered and

recommended that;

  1. The interdiction imposed against the officer be lifted Deferment of

one-year salary increment.

  1. The officer be severely warned
  2. The officer to work under close supervision for one (1) year
  3. The reinstatement be made in accordance with PSC regulations
  4. The decision of the MHRMAC was communicated to the officer

through letter Ref.No. 1993074381/50 dated 29th November, 2017. In the same letter, the officer was given a warning by the Principal Secretary.

  1. In his response to this letter, Architect Nyariki acknowledged receipt

of the letter and stated that he had read the letter, understood and

noted the contents therein.

  1. Thereafter, Architect Nyariki's full salary was reinstated. He was

also paid arrears arising from the withheld half salary and allowance (commuter allowance) as evidenced in the IPPD Data Sheet-Payroll Records and Pay slips filed in Court.

  1. The decision to defer one year’s salary increment was not

implemented because the officer had already made intention to appeal to the Public Service Commission. It was put on hold pending the outcome of the appeal. The matter is yet to be determined.

  1. No one in the State Department for Public Works has ever prevented

Arch. Nyariki from being promoted. As recently as last year, the

Officer was invited by the Public Service Commission (PSC) to attend an interview for the post of Principal Superintending Building Surveyor, job group Q, on 26th July, 2018. For reasons known to PSC, the officer was not given the post.

  1. In cross-examination she stated that she worked for State Department for Public Service as Director Human Resource and that she joined the respondent in 2020. It was her evidence that although events before Court took place before she joined but she had familiarised herself with the file. According to her, the claimant was disciplined in 2005 and that she saw the charges against the claimant. He was accused of negligence and that there was a show cause letter. The claimant was asked to respond to the same and he did. The matter was thereafter referred to Ministerial HR Advisory Committee (MHRAC) and the claimant invited for hearing before it on 10th February, 2006. This was after almost one year of interdiction.
  2. It was her evidence that the claimant was supposed to defend himself and from the record the claimant was he defended himself. She had in Court the letter inviting the claimant to MHRAC. She however did not have the minutes in Court. It was her evidence that she was familiar with the proceedings of the Committee at on 4th July, 2006 found at page 5 of the RBD. The claimant was not supposed to attend the meeting, but was invited to a subcommittee meeting and that the minutes before the Court were for the main committee. She stated that she did not have the minutes for the subcommittee.
  3. At page 315 of the of the CBD was a letter dated 30th December, 2015 from the PS to the Officer in Charge Supplies Branch (claimant). She stated that she did not know when the PS reported to the office but was aware that Mr. Mokua replaced the Claimant at Supplies Branch. At page 319 of CBD was the hand over report and at page 399 of the CBD was the Ps’s remarks on the report. It was her evidence that she saw the remarks by the PS and did not see any complaint. At page 10 of the RBD was the Internal Memo to PS by the Officer in Charge about the two tenders. Three individuals were blamed and one of them was the claimant and that only the claimant was interdicted. He was required to respond to the allegations against him within 14 days. It was her evidence that at page 22 of the RBD, the MHRMAC recommended that the claimant be reinstated with effect from 1st May, 2016 and he be given advisory warning. The PS however appealed the decision of MHRMAC and the issue was revisited. According to her, the claimant was to be retired in public interest and his case referred to EACC.
  4. It was her evidence that she could not confirm if the claimant was furnished with documents in support of the claims against him. In re-examination she stated that the claimant was invited to a disciplinary hearing through a letter dated 10th February, 2006 and was given an opportunity to present his case. Further that the claimant was reinstated and salary arrears paid.

CLAIMANT’S SUBMISSIONS

  1. The claimant filed written submissions dated 12th April, 2024 through Counsel Kiboi who submitted among others that his client preferred working within government regulations, something which set him on a collision cause with some Ministry officials. For instance, he once stopped an attempt to pay a contractor upfront Kshs. 47 million on the basis that the financial year was coming to an end and he ensured the money was returned to National Treasury for reallocation. According to Counsel, the case against him was preconceived in early months of 2016 but initiated in May, 2016 when he was interdicted through the Principal Secretary where he was asked to show cause why severe disciplinary action should not be taken against him. Counsel submitted that the Principal Secretary Prof. Arch. Paul M. Maringa who was the Chairperson of the State Department’s Ministerial Human Resource Management Advisory Committtee (MHRMAC) showed open bias and malice against the claimant. He was everything in this particular case against the claimant. He preferred the charges, prosecuted them and sat as a judge over the matter.
  2. According to Counsel, the PS was appointed in mid-December, 2015 and the first official interaction with the claimant was through letters dated 30th December, 2015. The first letter was making inquiries over term and fuel contracts and the second letter redeployed the claimant and replaced him with one Sebastian Mokua. The claimant was asked to hand over to the new officer, which he did by preparing a hand over report dated 1st February, 2016. Counsel lamented that the PS was expressly negative about the report. He accused the claimant of misstatement of facts. Mr. Kiboi further submitted that on 19th February, 2016 the PS again wrote to the claimant adding more complaints against him. The letter asked Head of Internal Audit, Lucy Kabaya to audit the handover report, the status of the department by the time the claimant handed over and a report of the audit that was apparently being carried out in the department before the claimant’s departure. In so doing, the PS in principle commenced audit and investigation against the claimant. According to counsel however, government audits had established procedures intended to guard against witch hunting in the service. The officer being audited must be informed and be present when the exercise commences and during the period and completion of the audit.
  3. Mr. Kiboi further submitted that on 16th March, 2016 the CS informed the claimant of investigations into allegations of corruption in respect of procurement at the NYS and Ministry of Devolution and Planning by the EACC and requested the claimant to appear before the Commission staff on 21st March, 2016 for a scheduled interview. From the chronology of events, counsel opined that the actions against the claimant grossly violated his rights under the constitution especially articles 41(1) and (2) and sections 35 and 5(3) of the Employment Act. Counsel further relied on the case of Susan Khakasa Oyatsi -vs- Judicial Service Commission [2022] eKLR.
  4. Counsel nonetheless further submitted that on 25th May, 2016, the claimant responded to the allegations contained in the PS’s letter as follows:
    1. That there was a change of policy with the coming into power of Jubilee Government in which 30% of all tenders were reserved to vulnerable and disadvantaged groups in line with the new government’s manifesto.
    2. The incoming CS therefore nullified all contracts that were awaiting signatures because they did not meet the new 30% rule.
    3. The nullification necessitated the re-advertisement of tenders and over 3000, items were re-advertised and that the response was enormous with over 1000 tender applicants.
    4. There was serious staff shortage at the supplies branch where he was the officer in charge and with stern requirements to beat the deadline, they were forced to work overtime, with inexperienced staff, interns and students on attachment.
    5. In this kind of situation it was possible to include or omit to include crucial information like occurred during tender evaluation by the (Ministerial Tender Committee) MTC and further that he was not a member of the MTC hence had absolutely no role to play.
  5. According Counsel the claimant’s response was submitted to MHRMAC on 9th September, 2016 in accordance with section 4 of the Disciplinary Manual for Public Service (May, 2016). The claimant was however not aware of this meeting until the respondent filed their response to the claim in court. All the preparations, collection and assembling of evidence as displayed in pages 31-48 of RBD were done without the knowledge of the claimant. He was never invited to respond to any of the allegations contained in all these documents.
  6. According to Counsel, the MHRMAC appreciated the claimant’s explanations and resolved to clear him of the allegations and recommended that he be paid his salary for all the days he was on interdiction with an advisory warning not to take up responsibilities that were above his qualifications and area of expertise. According to Counsel the MHRMAC therefore finalised the claimant’s case and the chairman and secretary signed minutes on 2nd November, 2016 and the CS approved the minutes for implementation the MHRMAC however did not implement the resolution and further did not communicate to the claimant the resolution. The Claimant saw the resolutions for the first time in court.
  7. Mr. Kiboi further submitted that on 23rd December, 2016 the PS Prof. Maringa made handwritten remarks on the internal memo to him found at page 18 (RBD) to approve the minutes for action but he instead directed the Director Human Resource Management to appeal against the verdict and bring on board two additional reports and various letters. The PS further proceeded to direct the committee to make a verdict of early retirement together with a caution on the claimant by a professional body, an action Counsel submitted was contrary to law. According to Counsel, the MHRMAC sitting on 9th September, 2016 did so under delegated powers from PSC and were required to follow the provisions of the Discipline Manual for Public Service especially paragraph 4.0 ( see page 439-450 CBD)
  8. Counsel contended that his client’s rights under the constitution and paragraph 4 of the PSC Discipline Manual were violated in that the charges were not drawn conclusively to enable the claimant know with certainty the charges against him. Moreover the charges were amended many times without the claimant being notified or served with proper charges facing him.
  9. Concerning directions by the PS to appeal MHRMAC resolution to reinstate the claimant, Counsel submitted that appeals and reviews are provided for under Part V of the Manual (page 450 CBD) and a reading of the provisions reveal that the disciplining authority had no right of appeal. It was the officer under discipline who had the right of appeal. The purported appeal by the PS was therefore malicious and against the law since the appeal was to the same MHRMAC.
  10. In conclusion Mr. Kiboi submitted that the interdictions and the lack of good will from the Chief Officers at the Ministry led to the claimant’s stagnation at Job Group L for 13 years and denied upward progression to Job Group P and further staying in Job Group M for 11 years denied the claimant opportunity of moving to Job Group T. Counsel therefore urged that the claimant’s rights had been grossly abused while he performed his duties in accordance with established government regulations and the Constitution. Counsel submitted that the Court had the responsibility under article 236(a) and (b) to protect public officers against being victimised or discriminated for having performed the functions of the office in accordance with the Constitution or any other law or dismissed, removed from office, demoted in rank or otherwise subjected to disciplinary action without due process of the law. Counsel finally urged the Court to find that the claimant had proved his case on a balance probabilities and grant him the orders sought in the statement of claim.
  11. Mr. Kioko for the respondent, on his part submitted that the claimant was interdicted on two separate occasions, in February, 2005 and May, 2016 in accordance with PSC Act. Counsel relied on PSC Act 2017, section 70(1) thereof and PSC Regulations, 2020 which counsel contended provided the legal framework for disciplinary actions in the Public Service. Counsel further relied on the case Grace A. Omollo -vs- The AG & 3 Others where Majanja J as he then was stated that regulation 23 of the PSC Regulations provided that interdiction could only issue in the public interest and only if proceedings which may lead to a dismissal are being taken or about to be taken or where criminal proceedings are instituted against a public officer. The learned judge further stated that what was required for an interdiction to meet requirements of article 47 was that there was reasonable basis for taking action. What was reasonable depended on the facts, circumstances of the case. The subject matter at hand concerned allegations of irregular recruitment of staff. Counsel urged the Court to follow the learned judges reasoning in this matter.
  12. According to Counsel, the were integrity issues witnessed in the Petition which were cases of malpractice. Concerning fair administrative action, Mr. Kioko submitted that the claimant was interdicted on two occasions and conservatory measures taken as provided in law. That is to say all his emoluments withheld were restored to him when the interdiction did not lead to his dismissal. According to Counsel, the 2005 interdiction was recalled when it was found that he was interdicted before being issued with a show cause letter. In the 2006 interdiction, the claimant was issued with a show cause letter dated 5th May, 2016 and interdicted to allow for investigations into allegations of procurement malpractice. The interdiction followed the required legal procedures by providing the claimant with the opportunity to respond and ensuring the grounds for interdiction were clearly communicated.
  13. According to Mr. Kioko, the claimant was treated justly throughout the disciplinary process, he was issued with a letter containing the charges against him and allowing him to respond to the same. Further the actions taken against the claimant including warnings, loss of increments, and close supervision were proportionate responses to the severity of the allegations.
  14. On the issue whether the claimant was entitled to promotions and if the respondent has withheld his positions in public service, counsel submitted that in selecting candidates for promotion, regard was given to affording adequate and equal opportunities to minorities. Further section 36(1) of the PSC Act, 2017 places regard to among other, merit, equity, aptitude, suitability, prescribed qualifications, provable experience and personal integrity of the candidate.

DETERMINATION

  1. This matter presents a unique case of an employee still serving, taking legal action against his employer over alleged violation of his constitutional and statutory rights. The claimant in the that respect urges the court to issue a number of declarations including that the interdictions meted upon him were wrongful and be set aside and quashed and that he be given promotions and increments which were due to him during the period of interdiction. According to the claimant the two interdictions he underwent were unnecessary and somewhat malicious. The respondent on the other hand contends that the actions were justified in the circumstances and that the decision to interdict was made after the claimant was given an opportunity to defend himself.
  2. By a letter dated 15th February, 2005, the Permanent Secretary Ministry of Roads and Public Works, wrote to the claimant detailing several accusations against the claimant and calling upon him to defend himself against the accusation and reminding him of their seriousness and consequences including termination of his employment. The letter further communicated to the claimant his interdiction from exercising powers of his office. The claimant vide a letter dated 28th February, 2005 responded to the accusations against him and by a letter dated 29th August, 2006, the claimant’s interdiction was lifted. By a letter dated 5th September, 2006, the claimant acknowledged receipt of the letter lifting the interdiction and further thanked the respondent for giving him an opportunity to get back to work and further promised that he would not commit a similar offence.
  3. Things seemed quiet and the claimant after attempt to transfer him to Garissa, was eventually transferred to Supplies Branch in Nairobi as the Officer in-Charge. By a letter dated 25th August, 2016 the claimant was informed by the PS of the Respondent that he was required to appear before the Public Accounts Committee of Parliament to explain queries raised by a Special Audit Report of the Auditor General concerning accounts of the National Youth Service while Supplies Branch was under his docket. The respondent further received a letter dated 27th September, 2016 from Ethics and Anti-Corruption Commission requesting to interview the Claimant as the Officer in-Charge of Supplies Branch concerning supply of firefighting equipment by International Partnerships Services EA Limited to NYS which the Commission was investigating. The claimant was notified of this through a letter dated 29th September, 2016.
  4. In the meantime by a letter dated 5th May, 2016, the claimant was informed that being in charge of tendering and contract process in tender nos. SB/27/2013-2014 and SB/37/2013-2014 for supply of provisions and food stuff and supply of insecticides, chemicals and spraying equipment to Government Ministries/Departments, it was suspected that there was financial misconduct/offences committed. The letter detailed the financial misconducts/offences and informed the claimant that the respondent was contemplating taking severe disciplinary action against him but prior to that, called upon him to show cause why that should not be done. The letter further informed the claimant of his interdiction from office to allow further investigations. The claimant respondent through a letter dated 25th May, 2016 and by a letter dated 8th February, 2017, the respondent informed him that the interdiction will be upheld and further reminded the claimant that this was the second time he was facing interdiction for gross misconduct.
  5. At a meeting held on 23rd May, 2017, the respondent’s MHRMAC meet and deliberated on the claimant’s issue and resolved that the claimant be retired in public interest and that the matter be referred to EACC for investigation. Through an advisory opinion dated 6th September, 2017 the Deputy Solicitor General advised among others that the recommendation to retire the claimant in public interest was no longer tenable in law following the amendments to the Public Service Commission Act No. 10 of 2017. It is for this reason that by a letter dated 29th November, 2017 the respondent lifted the claimant’s interdiction from the date it was imposed, his one year salary increment be deferred, he be put on close supervision for one year and that the claimant be severely warned against any acts of gross misconduct and a repeat of the same would lead to summary dismissal.
  6. It was not in dispute that the claimant was a person of interest arising from an audit query by the Auditor General over tender and procurement of items while he was the in Charge of Supplies Department. The investigations were being conducted by the Public Accounts Committee of Parliament (PAC) and the Ethics and Anti-Corruption Commission (EACC). It was further not in dispute that the claimant was summoned by the two competent authorities to appear before them and shed more light on the tenders in issue. These are bodies independent of the respondent and are not subject to any control or direction in their work hence the respondent could not be faulted for subjecting the claimant to similar but internal investigation and taking appropriate disciplinary action where necessary.
  7. Employment relationship is built on trust and confidence between the parties. It is inherent in the contract that the employer shall provide a conducive working environment and pay the employee all his emoluments that are provided in law and contract off service. The employee on the other hand undertakes to protect the interests of the employer and perform his duties to the best of his skills and abilities. Where trust and confidence has been eroded, the relationship cannot continue smoothly and in most cases ends in termination of the contract by either party.
  8. In Public Service, public officers are governed by among others the Public Officer’s Ethics Act. Section 9 of the Act provides as follows:

“A public officer shall—(a)carry out his duties in a way that maintains public confidence in the integrity of his office;(b)treat the public and his fellow public officers with courtesy and respect;(c)to the extent appropriate to his office, seek to improve the standards of performance and level of professionalism in his organisation;(d)if a member of a professional body, observe the ethical and professional requirements of that body;(e)observe official working hours and not be absent without proper authorisation or reasonable cause;(f)maintain an appropriate standard of dress and personal hygiene; and(g)discharge any professional responsibilities in a professional manner.”

  1. In summary, integrity in public office is fundamental to achieving effective and ethical governance. It ensures that public resources are managed wisely, decisions are made justly, and the interests of all citizens are served. Maintaining integrity is essential for the trust and health of any democracy. The Court is careful not to make conclusions on the allegations that the claimant herein was confronted with, but is not afraid to say they were serious and if pursued to their logical end could have resulted in more severe sanctions against the claimant. However it is important to note that infractions in the course of employment which attract internal disciplinary sanctions need not be proved to the threshold of a criminal case. An accusation against an employee must not if prosecuted in a criminal court, support a conviction.
  2. The Court therefore has considered this matter in its entirety and the fact that the claimant is still working for the respondent and is reluctant to grant the claimant the orders sought in the claim. The relationship between the parties will be allowed to continue undisturbed. The Court will however sanction that the respondent will be prohibited from acting further on the allegations against the claimant and further prohibited from using the same to the prejudice of the claimant in any future promotion or employment across public service.
  3. The appropriate order that therefore commends itself to the Court in the circumstances is to dismiss the claim with no order as to costs.
  4. It is so ordered.

Dated at Nairobi this ……… day of…………. 2024

Delivered virtually this……… day of ………….2024

Abuodha Nelson Jorum

Presiding Judge-Appeals Division

    WESLEY MOKUA NYARIKI VS Attorney General WESLEY MOKUA NYARIKI VS Attorney General