Patrick Kibui Nyingi v Nairobi City Water and Sewerage Company Limited & Nairobi City County [2020] KEELRC 645 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI

CAUSE NO. 423 OF 2014

(Before Hon. Lady Justice Maureen Onyango)

PATRICK KIBUI NYINGI.......................................................................................CLAIMANT

VERSUS

NAIROBI CITY WATER AND SEWERAGE COMPANY LIMITED...1ST RESPONDENT

NAIROBI CITY COUNTY......................................................................... 2ND RESPONDENT

JUDGMENT

The Claimant filed a Memorandum of Claim on 19th March 2014 alleging that his suspension and eventual dismissal by the 1st respondent was unlawful and contrary to the rules of natural justice.  He avers that the proceedings leading to his dismissal were unfair and unlawful as the 1st respondent did not comply with the procedure provided under the section 8. 24 and 8. 25 of Respondent’s Human Resources Policy and Procedures Manual and Sections 41, 43, 44, 45(1)(c) and 45 (5) of the Employment Act.

The Claimant seeks the following reliefs:

a) Kshs.65,671,555. 90 made up as follows:

i. Three months’ salary in lieu of notice Kshs.522,877. 59

ii. Salary for 9 months for the period during suspension from  May 2013 to 28th January 2014 Kshs.1,568,633. 77

iii. Salary for 16 years to attain the mandatory retirement age from Nairobi Water company staff Kshs.33,464,165. 76

iv. Service Kshs.12,026,184. 57

v. Leave allowance for 16 years Kshs.2,788,680. 48

vi. Lost annual increments/promotions for 17 years from 1st July 2013 to the normal retirement age of 60 years  Kshs.522,877. 59

vii. Unutilised leave/off days (203) days  Kshs.1,045,755. 18

viii. Lost medical cover  (Kshs.300,000 x 17 years) Kshs.5,100,000. 00

ix. Lost pension for 17 years to retirement age of 60 years Kshs.6,440,871. 60

x. Baggage allowance from Nairobi to Kinangop Kshs.100,000. 00

xi. Full compensation for loss of employment Kshs.2,091,510. 36

b) In the alternative the Court be pleased to order for the Claimants unconditional reinstatement without loss of benefits.

c) Certificate of service be issued to the Claimant within 14 days

d) Costs of this cause.

e) Interest on the cause at court rates.

f) Any other relief which the Court deems fit, just and expedient to grant

The 1st Respondent filed a Response to the claim on 28th April 2014. It avers that the Claimant was accorded fair and just disciplinary procedure before the summary dismissal as provided in the Employment Act and that it fully complied with its Human Resources Policy and Procedures Manual.

Claimant’s Case

The Claimant testified that he was employed by the Respondent as a meter reading coordinator.  That on 22nd April 2013, he received a notice to show cause accusing him of unlawful adjustments and customer financial statements.  He testified that he responded to the Notice to show cause on 29th April 2013 and on 7th May 2013 he was suspended for 90 days to pave way for investigations.

He testified that on 8th May 2013, he was told to recorded a statement but this was under duress. He testified that on 10th July 2013 he received a letter summoning him to appear before a disciplinary meeting on 19th July 2013. He testified that the period was contrary to the 10 days’ period provided in the manual.

He testified that no evidence was led against him and he was never shown the documents he was accused of adjusting. He denied unlawfully adjusting any document and stated that he was a member of the disciplinary committee. He testified that he received his dismissal letter on 15th August 2013 and was to appeal within 90 days. He testified that the procedures manual provided that he was to appeal within 14 days, to appeal the decision to the Managing Director. He testified that he appealed but that the Managing Director did not acknowledge receipt of his appeal.

He further testified that he was to appeal to the Corporate Appeal Committee on 5th November 2013 but this Committee did not exist. He testified that he appeared before the Appeals Committee on 13th November 2013 with a colleague and the same panel that sat during the disciplinary hearing heard him on appeal.

He testified that the disciplinary process was flawed and contrary to the Human Resource Manual. He testified that it took 9 months to finalise the disciplinary process and that his position was filled before the disciplinary hearing took place.

In cross-examination, he testified that he started working in the Water and Sewerage Department of the Nairobi City Council, now defunct, in 1988 and on 18th May 2004 he was seconded to the Respondent. He testified that vide the letter dated 8th February 2000, he had been accused of gross misconduct and suspended on issues of fraud. He further testified that prior to being seconded/transferred to the Respondent, he had been suspended for 2 years.

He further testified that in 2008 he was issued with a suspension letter for being implicated in a fraud case and after disciplinary hearings, he was found innocent. He testified that while working as a customer care officer for Northern Region there was a complaint relating to his quality of work but was meant for the whole section.

He testified that he was issued with two previous notices to show cause on 22nd April 2013 and 25th April 2013.  He testified that he recorded his statement in his own handwriting and before SIMON ITUBO, an Investigations Officer. He testified that he was a member of the adjustment committee and that the adjustments he made were in the course of his duty.

He testified that he was not in a position to prepare his defence due to the short notice given for him to appeal before the disciplinary committee as he received the letter inviting for hearing, the following week.  He testified that he did not ask for more time and that in his evidence he accused Itubo of forcing him to take minutes. He testified that he was not given time to speak at the hearing.

He testified that the disciplinary manual provided that the disciplinary process was to take 120 days. He testified that he appeared before the Appeals Committee even though he knew it was an illegal committee.  He however testified that he did not know when the Corporate Appeals Committee was formed. He testified that from list of members present, only the repeated names are of Rose Naliaka and Fred who was a Union member but not a member of the Committee. He testified that he did raise an objection to the presence of Rose Naliaka as a committee member.

In re-examination, he testified that there were only 5 working before he attended the disciplinary hearing yet the requirement was for not less than 10 working days. It was his case that the summons to appear before the disciplinary committee were illegal. He testified that his dismissal letter required him to appeal to the Managing Director.  He testified that he was never reported to the police with respect to fraud.

Respondent’s Case

SIMON GERRY ITUBO the Respondent’s Investigations Officer testified as RW1. He testified that upon receiving instructions, he interviewed staff and also checked the CMS systems to confirm the profile that transacted in the fraudulent adjustment. He testified that the findings in his Investigations Report are that the Claimant with an intent to deny the Respondent its revenue of Kshs.200,242. 97 caused the proposed adjustment of the amount on the Voucher No. 2013/02/90/19 by instructing the billing assistant Charles Gachoka to adjust the same knowing it was not his, the Claimant’s mandate.

He testified that there was a second case dated 12th August 2013 which was brought to their attention as they were concluding the first case. He testified that there was also another customer who worked in cahoots with the Claimant.

He testified that the process of an adjustment as per procedure was that the customer was to lodge a complaint and all complaints were channelled to the customer care desk. He testified that adjustment was a process that did not involve the Claimant and that he somehow sneaked himself into the system. He testified that the Claimant’s statement was self-written and confirmed that he was present when he the Claimant was voluntarily recording the statement.

He testified that he presented his report to the disciplinary committee and that it is not true that the Claimant was not given an opportunity to be heard. He testified that the Claimant spoke and presented his documentation trying to justify that what he did was within the policy.

Upon cross-examination, the Claimant testified that he was not aware if the Claimant was a member of the adjustment committee. He testified that his instructions from the Human Resource were in writing but he did not produce the Memo in Court.

He testified that the difference in the two figures is that Kshs.200,242. 97 is the money that was adjusted by a voucher while the other figure is a credit note that was given to the customer by the Claimant. He testified that the credit note was initiated by the claimant and that he admitted that initiated the credit note and signed it.

He testified that during the disciplinary hearing, he stated that he had representatives from the Union. He testified that the Union members did not make any submissions.

NICHOLAS GOR the Respondent’s Human Resource & Administration Officer testified as RW2.  He testified that disciplinary hearing and the Corporate Appeals Committee have different membership and that only one person appeared in both Committees, Rose Naliaka. He testified that in the letter dated 8th February 2000 the Claimant had previously been arrested for colluding with a water consumer to defraud the Respondent and had also been implicated in fraud cases.

He testified that the Claimant was employed on 3 year renewable contract and the allegation that he would have Managing Director should he not have been terminated does not arise.

In cross-examination, he testified that the manual provides for an appeal system and that the Committee is administrative. He testified that according to the manual appeals are lodged to the Managing Director and are administratively handled by the Committee. He testified that he was neither a member of the appeals committee nor the disciplinary Committee.

He testified that the Claimant’s previous disciplinary cases form part f the Claimant’s history. He testified that the advertisement for his position was done before he was dismissed. With respect to the amounts sought, he testified that the Claimant was on contract and there is nothing like an automatic promotion.

Claimant’s Submissions

The Claimant submitted that the commencement of the disciplinary process through a Notice to Show cause was illegal and a nullity as section 23. 2 of the Human Resource (HR) Policy and Procedures Manual provides that an employee suspected of an act or omission is to be suspended from duty, for a maximum period of 3 months to pave way for investigations.

He submitted that the disciplinary process was an infringement of his fundamental rights under Article 50(2)(j) and (k) for want of the accompaniment of evidence to be relied upon during the hearing. In support of this he relied on the case of Idris Muktar & 20 Others v County Government of Garissa & 7 Others [2016] eKLR.

He relied on Section 8. 24 of the Respondent’s Human Resource Policy and Procedures Manual and submitted that his suspension which began on 7th May 2013 was to end on 6th August 2013, the stated 90 days’ suspension, but continued until 15th August 2013 without extension of the suspension period. He relied on the case of Gregory Otieno Owuoth v Mumias Sugar Company [2016] eKLR where the court held that an employee cannot be put on indefinite suspension against the Respondent (employer’s) own regulations.

He testified that the action of advertising and filing his position before being heard was malicious, premature and pre-emptive of the outcome of his disciplinary case. He further submitted that the summons to appear dated 10th July 2013 were illegal and infringed on the Claimant’s constitutional rights under Articles 47(2), 50(2) (a), (b), (c) and (j) of the Constitution as they did not contain the hearing before the Corporate Disciplinary Committee particularly the alleged the signed proposed adjustment.

He contended that the summons were unlawful for providing that he had 3 working days instead of the 10 days provided under section 8. 24 of the HR Resources Policy and Procedures Manual to appear before the disciplinary committee. He further submitted that the disciplinary committee was not properly constituted as it had strangers. It was his submission that his dismissal was unlawful for reason that he was not given adequate opportunity to prepare for the hearing, contrary to section 41 (2) of the Employment Act.

He submitted that the dismissal was null and void as the summary dismissal letter required him to appeal to the Managing Director within 90 days against the 15 calendar days stated in section 8. 25 of the Human Resource Policy.

He argued that the Court did not have the opportunity to interrogate the crucial documents in question which included the adjustment, credit note, witness statements and vouchers which formed the basis of his dismissal. It was therefore his submission that the Respondent failed to prove any reason for termination under section 43 of the Employment Act thus his dismissal was unfair under section 45 of the Employment Act. In support of this position, he relied on the cases of Anthony Mkala Chitavi v Malindi Water & Sewerage Co. Limited [2013] eKLRand Mary Chemweno Kiptui v Kenya Pipeline Company Limited [2014] eKLR.

He submitted that he had expectations to rise through the rank to the position Managing Director, he was entitled to service and had legitimate expectation to work for 60 years thus he is entitled to the claims under those heads. He further submitted that he was entitled to pension and was not paid his leave allowance and baggage allowance which was not challenged in evidence and pleadings.

He further testified that he had made a case for reinstatement and urged the court to allow for his immediate reinstatement.

Respondent’s Submissions

The Respondent submitted that sections 8. 22. 2 and 8. 24 of the Human Resource Policy provides for the establishment of a Corporate Disciplinary Committee. It submitted that Rose Naliaka was a secretary to both committees. It submitted that the minutes of the Corporate Appeals Committee confirm that the Claimant made submissions before the said committee this he was allowed to present his case.

It submitted that the issue on the illegality of the Memorandum of Claim was not raised in the Memorandum of Claim. It was its submission that the process before the Corporate Disciplinary Committee was done within the 120 days stated in the Human Resources Policy and provided under section 8. 24.

It argued that there was both substantive justification and procedural fairness in the procedure followed in the Claimant’s summary dismissal.  It relied on the case of Walter Ogal Anuro v Teachers Service Commission [2013] eKLRand submitted that a valid reason for dismissal was established after investigations were carried out. It submitted that in the case of Philemon Atik v Nairobi City Water and Sewerage Company [2019] eKLRthe Court held that fair procedure was followed as required under section 41 of the Employment Act for the Claimant having been issued with a notice to show cause, summoned to attend the disciplinary hearing and accorded and opportunity to heard.

It submitted that the Claimant is not entitled to the orders sought. It further submitted that the Claimant did not adduce evidence that he was entitled to service pay, leave allowance, the lost medical cover, pension or baggage allowance.

It submitted that the claim for reinstatement is not tenable under Section 12(3)(vii) of the Employment and Labour Relations Court Act, the court may only order for reinstatement within 3 years of dismissal. In conclusion, it urged the Court to dismiss the claim with costs.

Determination

The issues for determination are:

a) Whether the Claimant’s summary dismissal was wrongful

b) Whether the Claimant is entitled to the reliefs sought

Whether the Claimant’s summary dismissal was wrongful Reason

The Claimant was summarily dismissed for signing an adjustment amounting to Kshs.169,863. 51 in violation of Section 44(4) of the Employment Act and section 8. 23. 2 (viii) of the Human Resource Policy and Procedure Manual. It was the Claimant’s submission that there was no reason for his termination as the Respondent did not produce the documents relating to the said allegations to enable the Court interrogate them. I do not find this argument to be valid as RW1 in his testimony stated that the upon concluding his investigations, he established that the Claimant had gained access to the CMS system and that he had also given instructions for the adjustment which was not the procedure. Further, the findings of the investigations report dated 27th May 2013 prepared by RW1 were that the Claimant had an intent to deny the company its rightful revenue of Kshs.200,242,97 by inter alia causing the adjustment of a voucher, signing a provisional bill and lodging a complaint in CMS on 28th February 2013.  He recommended that disciplinary action be taken against the Claimant and another employee, Charles Kasyoki Muli.

The investigations report dated 27th May 2013, is sufficient evidence to consider whether was a reason to dismiss the claim and it would be unnecessary for this Court to further investigate the allegations against the Claimant. Further, the argument that the Respondent did not prove the loss it incurred does not hold water as it is evident that the Respondent would have incurred loss as a result of the adjustment. Based on the investigations report, I find that there was a valid reason for dismissing the Claimant for gross misconduct under section 8. 23. 2 of the Human Resource Policy and Procedures Manual and Section 44(4)(g) of the Employment Act which provides:

Any of the following matters may amount to gross misconduct so as to justify the summary dismissal of an employee for lawful cause, but the enumeration of such matters or the decision of an employer to dismiss an employee summarily under subsection (3) shall not preclude an employer or an employee from respectively alleging or disputing whether the facts giving rise to the same, or whether any other matters not mentioned in this section, constitute justifiable or lawful grounds for the dismissal if—

(g) an employee commits, or on reasonable and sufficient grounds is suspected of having committed, a criminal offence against or to the substantial detriment of his employer or his employer’s property.

In Pius Machafu Isindu v Lavington Security Guards Limited [2017] eKLRthe Court of Appeal held:

“There can be no doubt that the Act, which was enacted in 2007, places heavy legal obligations on employers in matters of summary dismissal for breach of employment contract and unfair termination involving breach of statutory law. The employer must prove the reasons for termination/dismissal (section 43); prove the reasons are valid and fair (section 45); prove that the grounds are justified (section 47 (5), amongst other provisions ...”

Therefore, the Respondent has proved that there were valid reasons for summary dismissal under section 43 of the Employment Act.

Procedure

The claimant contends that he was not given a fair hearing and that the process was in violation of the procedure set out in the Human Resource Policy and Procedure Manual.

Section 41 of the Employment Act provides:

(1) Subject to section 42(1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.

(2) Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1), make.

The Claimant was invited to a disciplinary hearing on 19th July 2013 vide the letter dated 10th September 2013.  As at this date, he had been suspended from work on 7th May 2013 to facilitate further investigations.

Section 8. 24 of the Human Resource Policy and Procedures Manual provides for Interdiction/Suspension as follows:

“The powers of interdiction and/or suspension shall be exercised in the circumstances set below:

An officer may be interdicted only if disciplinary proceedings against him or her require investigation or when criminal proceedings are being taken against him/her. An officer on interdiction shall receive pay not less than half his/her basic salary. The officer shall receive all allowances due to him/her. Interdictions shall not exceed 60 days while third party cases, decisions to be taken by the company shall commence on the date of court decision.

An officer may be suspended from duty only if he/she commits a gross misconduct. Where an officer is suspended, he/she shall not be entitled to basic salary. The officer shall however, be eligible for all allowances due to him/her being taken against him/her.

Where disciplinary action have been taken against an officer and the officer is found innocent, I lie withheld portion (as indicated in part (a) and (b) above shall be released upon termination of such proceedings. In cases where the employee was found to have committed the offence bill is pardoned following disciplinary proceedings, the withheld portion shall not be paid.

In the event that an employee is suspended, the duration shall not exceed 90 calendar days. The corporate disciplinary committee shall ensure the cases are deliberated and completed within the stipulated period. An employee shall be given a minimum of 10 working days' notice by the Human Resource Manager to appear before the Corporate Disciplinary Committee. The affected employee shall be informed of the outcome of his/her case within one month on conclusion.

Offences under Anti-Corruption and Economic Crimes Act shall be handled as provided tinder the Act. However, the company shall reinstate/compensate employee acquitted of charges from the date of the acquittal or a minimum of two years from the date the employee was interdicted or dismissed. The company shall also commence its own disciplinary process against any officer suspected of Anti-corruption and Economic crimes.

For purposes of this Manual, suspension shall be for a period of 90 days. If by the lapse of the period there is need for extension of the suspension period, the same shall be extended for a lull her period of 30 days only. After expiry of the extended period, the employee shall be reinstated notwithstanding the fact that the disciplinary process will not have been completed.”

The Claimant was suspended on 7th May 2013 and the decision to summarily dismiss him was communicated to him on 15th August 2013.  It therefore took 98 days for the disciplinary case to be concluded which is contrary to the 90 days provided under section 8. 24 of the HR Policy, as submitted by the Claimant.

The Claimant submitted that he was given a short notice to appear before the disciplinary committee. The Claimant was issued with a letter dated 10th July 2013 requiring him to appear before the Corporate Disciplinary Committee on 19th July 2013. This period did not amount to the 10 working days stipulated under section 8. 24 of the HR Policy and Procedures Manual.

The Claimant avers that he was not given an opportunity to defend himself. However, the minutes of the disciplinary committee hearing indicate that he waived his right to be accompanied by a representative/ employee of his choice and he made his representation. It is noteworthy, that the 3 union officials were present at the disciplinary hearing.

The Claimant avers that he was required to appeal to the Managing Director and that there is no body known as the Corporate Appeals Committee. The Respondent submitted that the issue of the appeals committee was not raised in the claim.  RW2 testified that according to the manual appeals are lodged to the Managing Director and are administratively handled by the Committee. Section 8. 25 of the HR Policy and Procedures Manual provides for Appeals that:

“A member of staff aggrieved by the decision of the Company shall appeal to the Managing Director within Fifteen (15) calendar days. The Managing Director shall immediately acknowledge receipt of the appeal and after considering the facts of the case, communicate his decision to the Appellant within 30 days. If dissatisfied with the decision of the Managing Director, a further appeal shall be made to the Board of Directors through the Managing Director within ninety (90) days from the date of communication.”

Parties are bound by their pleadings. As submitted by the Respondent, the Claimant in his Claim did not plead that the Corporate Appeals Tribunal was an illegal committee. Instead, he pleaded at paragraph 23 of his claim that the Company’s Corporate Disciplinary Committee did not exist in the Respondent’s manual. At paragraph (g) of his submissions in the claim, the Claimant stated that he was dismissed on the strength of a decision of the Company’s Corporate Disciplinary Appeals Committee.

Section 8. 24 is explicit that a suspended employee is to appear before a corporate disciplinary committee. The Claimant testified that he did not receive an acknowledgment from the Managing Director after filing his Appeal. The Respondent did not prove that the Managing Director acknowledged receipt of the Claimant’s appeal.

The Claimant also avers that the disciplinary panel and the appeals panel were the same. This is not correct as composition of the panels was different save for Rose Naliaka who sat in both panels. In the disciplinary panel she was the Secretary while in the appeals committee she sat therein in her capacity as a Member.

As explained hereinabove, I find that the Claimant’s termination failed to adhere to some of the procedures set out in the HR Policy and Procedures Manual. This is with regard to the time his disciplinary case was concluded and the period he was required to appear before the Corporate Disciplinary Committee.

Further it was admitted by RW1 that the claimant’s positon was advertised and filled before his dismissal.   This means that the decision to dismiss him had been predetermined and the disciplinary process was a farce intended to meet the procedural requirements in the law.  This invalidates the whole disciplinary process.  I therefore find the dismissal of the claimant unfair.

Whether the claimant is entitled to the reliefs sought

(i) 3 months’ salary in lieu of notice

Having found his dismissal unfair, the claimant is entitled to pay in lieu of notice as prayed which I award him at Kshs.522,877. 59.

(ii) Salary for 9 months’ suspension period

Section 8. 24 of the HR Policy and Procedures Manual on Interdiction/Suspension provides:

“An officer may be suspended from duty only if he/she commits a gross misconduct. Where an officer is suspended, he /she shall not be entitled to basic salary. The officer shall however, be eligible to all allowances due to him/ her being taken against him/her.

Where the disciplinary action has been taken against an officer and the officer is found innocent, the withheld portion as indicated in part (a) and (b) above shall be released upon termination of such proceedings.”

Having found the dismissal unfair, the claimant is entitled to the salary withheld during suspension in the sum of Kshs.1,568,632. 50.

(iii) Salary for 16 years to retirement, lost annual increments, unutilised leave days, lost medical cover, lost pension

These claims fail as it is in respect of anticipatory income. The same is not provided for under section 49 of the Employment Act.

(iv) Service pay

The Claimant is not entitled to service pay as provided under Section 35(6) of the Employment Act as he was a member of Laptrust and was also paid gratuity as indicated in his August 2012 payslip.

(v) Leave allowance for 16 years and Baggage allowance

These claims are not proven and also not provided in the Letter of Appointment.  It is further in respect of anticipatory income and not justifiable in law.

(vi) Full compensation

The Claimant’s dismissal did not follow the procedure set out in the Respondent’s Human Resource Manual. However, there was a valid reason for dismissal. The Claimant was employed on renewable contracts. His last contract dated 20th July 2012 was a 3 year renewable period. He was to serve the Respondent until 19th July 2015 but was dismissed on 15th August 2013 and the dismissal was upheld on appeal.

In accordance with Section 49(4)(e) and (k) of the Employment Act, I take into account the Claimant’s length of service and his conduct which resulted to the dismissal and award him two months’ salary as compensation for wrongful dismissal in the sum of Kshs.348,585. 06.

Reinstatement

The claim for reinstatement which was prayed for in the alternative fails as the Claimant has been awarded compensation. This Claim would also fail for reason that reinstatement can only be awarded within 3 years of the dismissal under Section 12(3) (vii) of the Employment and Labour Relations Court Act.  In any event, the claimant’s contract expired long before the date of filing suit.

In the end, judgment is entered for the claimant against the 1st respondent in the total sum of Kshs.2,440,095. 15,which will attract interest at Court rates from the date of Judgment. The 1st respondent shall pay the claimant’s costs of this suit.

DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 17TH DAY OF JULY 2020

MAUREEN ONYANGO

JUDGE

ORDER

In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020, that judgments and rulings shall be delivered through video conferencing or via email.  They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court.  In permitting this course, the court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on the court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.

MAUREEN ONYANGO

JUDGE