Paul Nyadewo Onyangoh v Parliamentary Service Commission & Clerk of the Senate/Secretary of the Parliamentary Service Commission [2018] KEELRC 559 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI

CAUSE NO.2292 OF 2016

PAUL NYADEWO ONYANGOH.............................................CLAIMANT

- VERSUS -

PARLIAMENTARY SERVICE COMMISSION........1ST RESPONDENT

CLERK OF THE SENATE/SECRETARY OF THE PARLIAMENTARY

SERVICE COMMISSION...........................................2ND RESPONDENT

(Before Hon. Justice Byram Ongaya on Friday 23rd November, 2018)

JUDGMENT

The claimant filed the memorandum of claim on 1011. 2016 through Abuodha & Omino Advocates. The amended memorandum of claim was filed on 09. 12. 2016. The claimant prays for judgment against the respondents jointly and severally for:

i. A declaration that the purported retirement of the claimant in the interest of the service contained in the 1st respondent’s letter dated 19. 10. 2016 is unlawful, illegal, unfair, wrongful, unprocedural and unconstitutional hence, null and void ab initio and of no legal consequence.

ii. A declaration the demotion of the claimant from the position of Director, Finance and Accounting (PSC15) to, the position of Deputy Director, Finance and Accounting (PSC14) vide the 1st respondent’s meeting held on 16. 01. 2014 vide resolution MIN. NO.PSC/1434/16/1/2014, and communicated to the claimant via the 2nd respondent’s letter of 20. 01. 2014, is unlawful, illegal, unfair, wrongful, unprocedural, and unconstitutional hence, null and void ab initio.

iii. An order that the claimant’s retirement in the interest of the service contained in the 1st respondent’s letter dated 19. 10. 2016, be and is hereby set aside or revoked or recalled by orders of the Honourable Court.

iv. An order that the claimant’s demotion from the position of Director, Finance and Accounting (PSC15) to, the position of Deputy Director, Finance and Accounting (PSC14)  vide the 1st respondent’s meeting held on 16. 01. 2014 vide resolution MIN. NO.PSC/1434/16/1/2014, be and is hereby set aside or revoked or recalled by orders of the Honourable Court.

v. An order that the claimant herein be and is hereby reinstated to employment with the respondent in the position that he held prior to the purported retirement or demotion with full salary, benefits, privileges and such other payments as may have been due to him, prior to the purported retirement and demotion.

vi. In the alternative and without prejudice to the generality of prayers (i) to (v) above, an order that the claimant be fully compensated as if he had voluntarily retired or resigned from service in terms of paragraph 22 of the memorandum of claim or, declared redundant in terms of paragraph 23 of the claim or, unfairly and wrongfully demoted in terms of paragraph 24 of the claim or duly compensated subject to the 1st respondent’s projected salary reviews in terms of paragraph 25 of the claim or as otherwise deemed just and expedient by the Honourable Court.

vii. An order of permanent or perpetual injunction, barring the respondents or, 1st or 2nd respondent from demoting, declaring the claimant redundant or retiring the claimant herein until he attains the retirement age, in line with the 1st respondent’s laws and policies now or any time in future.

viii. An order that the  claimant be paid compensation for violation of his legitimate expectation in terms of paragraph 11 of the claim herein or, as otherwise deemed just and expedient by the Honourable Court.

ix. An order that the claimant be awarded costs of the claim herein.

x. An order for award of interest on (v), (vi), (vii), (viii), and (ix) above at Court rates.

xi. In the alternative an order for issuance of a certificate of service to the claimant in terms of section 51 of the Employment Act, 2007.

xii. Any other equitable relief that the Honourable Court may deem just and fit to grant in the circumstances.

The respondents filed the response to the amended memorandum of claim on 15. 12. 2016 through Wangechi Thanji Advocate. The respondents prayed that the suit be dismissed with costs.

The claimant was appointed in the parliamentary service as a Senior Finance Officer, PSC 5 effective 01. 09. 2004. He was promoted to Principal Finance Officer, PSC12 effective 04. 07. 2008. On 12. 10. 2012 the claimant was appointed to the position of Director, Finance and Accounting, PSC 15. The respondent served the claimant with the internal memo of 04. 12. 2013 on absence from duty on Monday 02. 12. 2013  when he was scheduled to attend a meeting at Treasury to discuss Parliament’s budget but he failed to attend and his department was represented by the Principal Finance Officer and was absent the entire day; on Tuesday 03. 12. 2013 when he was to attend a tender committee meeting but failed to do so and the meeting was called off for want of quorum, and the claimant was absent the entire day; on Wednesday 04. 12. 2013 a Joint Services Management Board meeting was held at 9. 00am and the claimant did not show up and instead he texted his secretary to ask one of the Heads to represent the claimant so that the Chief Accountant attended and inquiries showed that the claimant had not been at the office since Monday 02. 12. 2013. The memo required the claimant to show cause, within 3 days, why disciplinary proceedings should not be commenced against him. The claimant replied by his memo of 06. 12. 2013 that on 02. 12. 2013 he was held up at his son’s school and arranged his officer to attend Treasury meeting; on 03. 12. 2013 he was held up on his desk and by the time he proceeded to the tender committee meeting the other members has dispersed; and, on 04. 12. 2013 he realised he was going to be late and he arranged representation at the Joint Services Management Board meeting. He concluded thus, “There could have been lapses in communication in these matters.”

The respondent conveyed to the claimant its decision by the letter dated 20. 01. 2014 that he had been absent for the three days and at the Commission 189th meeting held on 16. 01. 2014 resolution No. PSC./1434/16/1/2014 it was resolved:

a. The claimant be severely reprimanded for his actions.

b. The claimant be demoted from the position of Director, Finance & Accounting Services, PSC15 to the position of Deputy Director, PSC14 with effect from 16. 01. 2014.

c. An amount of monthly pay equivalent to the three days that the claimant missed duty on 2nd, 3rd, and 4th December 2013 be deducted from the claimant’s salary.

The letter instructed the claimant to hand over to the officer appointed to act in the office of Director, Finance & Accounting Services with immediate effect. The salary was deducted from the claimant’s January 2014 pay. The severe reprimand was imposed by the letter of 31. 01. 2014. The claimant applied for review of the Commission’s decision to demote him and by the letter dated 11. 09. 2014 the claimant was informed that the Commission had deliberated the request for review at the meeting held on 04. 09. 2014 and declined to approve the review because no new evidence was provided to warrant a review.

By the letter dated 01. 12. 2015 the 1st respondent (also earlier on in this judgment referred to as the Commission) conveyed to the claimant that at its 218th meeting of 18. 11. 2015 it was resolved that the claimant should be appointed to act in the position of Director, Finance and Accounting Services PSC Scale 15 effective 18. 11. 2015. The claimant would be paid 15% of his current basic pay as acting allowance.

By the letter dated 18. 01. 2016 the 2nd respondent served a show cause notice upon the claimant as signed by the 2nd respondent on account of:

a. Disobedience of instructions or directions that on 18. 01. 2016 at about 10. 30am the 2nd respondent telephoned the claimant to meet the 2nd respondent at the 2nd respondent’s office at 12. 00noon of the same date to discuss certain matters relating to the Directorate of Finance and Accounting (DFA) where the claimant was the acting Director. The claimant had failed, refused or neglected to attend the meeting as requested despite a reminder to the claimant by the 2nd respondent’s secretary that the 2nd respondent was waiting the claimant to attend.

b. Rude and insubordinate behaviour that on 18. 01. 2016 at about 11. 50am the claimant telephoned the 2nd respondent and angrily said that he would not attend the meeting the 2nd respondent had called the claimant to because, “Mr. Irungu (Acting Deputy Director, DFA) is with you in your office. He has brought you all the documents you require. I do not need to come. I will not come.”

The letter stated that the claimant’s actions as stated if established constituted indiscipline on the claimant’s part and exposed the claimant to disciplinary action and appropriate sanction including dismissal from parliamentary service. The letter required the claimant to show-cause why disciplinary action would not be imposed and to do so not later than 19. 01. 2016 at 5. 00pm.

The Claimant replied by his inter-office memo of 19. 01. 2016.  He confirmed he received the 2nd respondent’s call at about 10. 30am on 18. 01. 2016 and it was agreed to meet at the 2nd respondent’s office at noon but as he looked for his technical officers to furnish the relevant information, the claimant learned that the officers were already in the 2nd respondent’s office. The claimant stated that the information entailed reports the 2nd respondent had handled with the technical officers while the claimant was on leave. Thus the claimant had called the 2nd respondent’s office at about 11. 50am to inform the 2nd respondent that he was still waiting for the officers who were with the 2nd respondent. he meant to book an appointment to discuss pending issues with the 2nd respondent. He concluded, “My call was courteous and if you felt that my voice was hoarse it was because it I had a cold. I did not intend to be rude in anyway. We will always strive to effectively facilitate your office at all times.”

The 2nd respondent found the claimant’s explanation unsatisfactory.  He referred the case to the Staff Advisory Committee and in view of the Committee’s recommendations the matter was referred to the 1st respondent. The 1st respondent resolved on 10. 05. 2016 that the claimant’s appointment as acting Director of Finance and Accounting be terminated and proceedings be commenced to retire the claimant in the interest of the service.

On 31. 05. 2016 the claimant was issued with a notice to show-cause why he should not be retired in the interest of the service on the following grounds:

a. Abandoning duty.

b. Absence from duty from 2nd to 4th December 2013.

c. Absence from duty without permission.

d. Disobedience of instructions or directions and rude and insubordinate behaviour.

The matter was referred to the Staff Disciplinary Committee per the resolutions of the 1st respondent on account of violation of Regulation 25(c) – on the misconduct of disobedience; and regulation26 (a) – on the gross misconduct of insubordination, both of the Parliamentary Service Commission Regulations, 2002. The Committee held 8 meetings and took the evidence of the claimant, the 2nd respondent and one Clement Nyandiere, Director General, Parliamentary Joint Services. The report of the Committee was submitted to the Board of Senior Management and the 2nd respondent, together with other officers, disqualified from participating on account of avoiding conflict of interest as 2nd respondent had commenced the complaint. The Board considered the matter on 30. 08. 2016 and recommended to the 1st respondent that the claimant be retired in the interest of the service upon the following reasons:

a. The claimant had been given an opportunity to improve his performance to no avail.

b. There are no directorates or departments to which the claimant could be redeployed due to his seniority and qualifications.

c. It was in the interest of the parliamentary service that the claimant leave the Directorate of Finance and Accounting to enable services be rendered to members of parliament, staff and third parties.

d. Taking into account the interests of the service.

On 23. 09. 2016 the 1st respondent deliberated the case and resolved that the claimant be retired in the interest of the service for violation of Regulations 25(c) and 26(a) of the Parliamentary Service Commission Act Regulations, 2002. By the letter dated 19. 10. 2016 the claimant was informed about the decision to retire in the interest of the service effective 19. 10. 2016. The letter stated that the 1st respondent had resolved that pursuant to Regulation 36 of the Parliamentary Service Commission Regulations, the claimant be retired in the from the service in the interest of the service for the following reasons:

a. Violation of regulations 25(c) and 26(a) of the Regulations on disobedience and insubordination.

b. The claimant had previously been accorded opportunities to improve his performance to no avail.

c. On several occasions the claimant had been coming to work under influence of alcohol including attending meetings of the Board and Commission Committee on Finance held on 8th and 9th February, 2016 respectively, while intoxicated.

d. That during the last financial year, as Director of Finance and Accounting Services. The claimant had submitted the budget late and further there were errors in the submitted budget.

e. That there were instances of late exchequer requests and late salary releases during the period that the claimant was the head of the Directorate of Finance and Accounting Services.

f. That there were no directorates or Departments to which the claimant could be redeployed due to his seniority and qualifications.

g. That it was in the interests of the parliamentary service for the claimant to leave the Directorate of Finance and Accounting Services to enable services be effectively rendered to members of parliament, staff, and other stakeholders.

The claimant was therefore retired from the service by the 1st respondent with full benefits with effect from the date of the letter, 19. 10. 2016.

The claimant was dissatisfied and aggrieved with the retirement decision and he filed the present suit.

The Court has considered the pleadings, the evidence, and the submissions on record. The Court makes findings on the matters in dispute as follows.

The 1st issue for determination is whether the retirement of the claimant in the interest of the service was fair. The retirement was under Regulation 36 of the Parliamentary Service Commission Regulations, 2002 on retirement on grounds of interest of the service. The Regulation states:

1. If the deputed officer after having considered every report in his or her possession made with regard to an employee, is of the opinion that it is desirable in the interest of the service that the service of such employee should be terminated on grounds which cannot suitably be dealt with under any other provision of these Regulations, he or she shall notify the employee, in writing, specifying the complaints by reason of which his or her retirement is contemplated together with the substance of any report or part thereof that is detrimental to the employee.

2. If, after giving the employee an opportunity of showing cause why he or she should not be retired in the interest of the service, the deputed officer is satisfied that the employee should be required to retire in the interest of the service, he or she shall lay before the Commission a report on the case, the employee’s reply and his or her own recommendation, and the Commission shall decide whether the employee should be required to retire in the interest of the service.

The Court has considered the provision against the evidence. The Court finds that it is clear that the provision was not complied with. First the provision applies to cases which cannot be suitably be dealt with under any other provision of the Regulations. In the present case it was alleged that the claimant was in violation of Regulations 25(c) and 26(a) of the Parliamentary Service Commission Regulations, 2002. Regulation 24 prescribes punishments which may be inflicted upon an employee as a result of disciplinary proceedings arising from misconduct. The misconducts and gross misconducts are listed in Regulations 25 and 26 accordingly. Thus the Court returns that disciplinary procedure leading to imposition of the punishments ought to have been invoked and was in fact invoked as the Court proceeds to find.

Thus, secondly, once allegations of disobedience and insubordination were preferred against the claimant as per the 2nd respondent’s letter of 18. 01. 2016, the claimant replied to the show-cause letter. The show-cause letter was clear that a disciplinary action including dismissal was contemplated. The matter was processed in accordance with the agreed and statutory disciplinary procedure culminating in the 1st respondent’s decision at its 228th meeting held on 10. 05. 2016 resolved, “For violation of regulations 25(c) and 26(a) of the Parliamentary Service Commission Regulations, 2002 on disobedience and insubordination and pursuant to regulations 36 of the Parliamentary Service Commission Regulations, 2002 –

1. The acting appointment of Mr. Paul Nyadewo Onyangoh be terminated.

2. Proceedings be commenced to retire Mr. Nyadewo Onyangoh in the interest of the Service.”

The Court finds that by that decision the 1st respondent imposed a punishment of reduction in rank as contemplated in Regulation 24 (c), thus, the claimant’s acting appointment was terminated. The Court considers that once the 1st respondent imposed that punishment (in preference to dismissal as envisaged in the show cause letter or other punishments in Regulation 24) the 1st respondent thereby became functus officio in so far as the allegations that had been levelled against the claimant in the show-cause letter of 18. 01. 2016 and all proceedings flowing from the letter.

Third, the Court reckons that Regulation 24(2) stipulates that nothing in Regulation 24 shall limit the powers conferred by the Regulations to require an employee to retire from the service on the grounds of the interest of the service. The Court considers that in deliberating the case as commenced by the show-cause letter of 18. 01. 2016, it was open for the 1st respondent to impose retirement in the interest of the service straightaway - instead of imposing the termination of the acting appointment and without directing that a process for retirement in the interest of the service be commenced. The Court finds that the 1st respondent’s decision that the claimant be subjected to a fresh process leading to retirement in the interest of the service was misconceived as the claimant had been found culpable, a punishment had been imposed, and the 1st respondent’s power for disciplinary control thereby exhausted with respect to that particular case. The Court finds that subjecting the claimant to a procedure leading to retirement in the interest of the service amounted to double jeopardy and was without jurisdiction as jurisdiction or authority had been exhausted in that regard.

Fourth, it was clear that under Regulation 36, it was the deputed officer, in this case the 2nd respondent as defined in Regulation 2 that was to initiate the process for removal of the claimant in the interest of the service and the 1st respondent to make the decision at the end of the investigative process. In the instant case it is clear that the 1st respondent purported to initiate the process and then at the same time to exercise discretion and terminate the claimant purportedly in the interest of the service whereas, the decision was already predetermined at the 228th meeting of 10. 05. 2016 at which the 1st respondent had already formed the opinion that the claimant should be retired in the interest of the service. The Court finds that while the 2nd respondent failed to exercise the discretion and authority to initiate the process of retirement as per Regulation 36, without authority or jurisdiction the 2nd respondent purported to initiate the process and therefore having taken a predetermined decision by such initiation, purported to “fairly and objectively” conclude the process by retiring the claimant in the interest of the service. That Court returns that it was unfair.

The Court returns that the procedure leading to the decision to retire the claimant in the interest of the service was in contravention of Regulations 24 and 36 and it amounted to double jeopardy in view of the punishments that had already been imposed against the claimant when the allegations had been previously levelled or as levelled in the show cause letter of 18. 01. 2016. Further, the Court returns that the termination by way of retirement in the interest of the service followed a procedure that was not fair as envisaged in section 45(2) (c) of the Employment Act, 2007. Further, the claimant was not heard as contemplated in section 41 of the Employment Act, 2007 prior to making of the decision to terminate the contract of service by way of retirement in the interest of the service.

The Court has considered that the procedure being unfair and amounting to double jeopardy, the reasons for the termination cannot be said to have been valid or genuine as at the time of termination. The Court further finds that the show cause letter dated 31. 05. 2016 initiating the process for retirement in the public interest raised allegations of abandoning duty and absence from duty which the claimant had previously answered and punishment imposed by way of demotion; and disobedience and insubordination per show-cause letter of 18. 01. 2016 but which the Court has found the claimant had already been punished by imposition of termination of acting appointment. To that extent the Court returns that the termination by retirement in the interest of the service was equally unfair in substance or merit because it was substantially based upon reasons the respondents had already considered in previous disciplinary proceedings and imposed appropriate punishments against the claimant.

The Court returns that the retirement was unfair both in procedure and substance.

The 2nd issue for determination is whether the claimant is entitled to remedies as prayed for. The Court returns as follows:

i. The Court has found that the termination was unfair, unlawful, and ultra vires Regulations 24 and 36 as it was without jurisdiction or authority. Thus the Court returns that the claimant is entitled to a declaration that the purported retirement of the claimant in the interest of the service contained in the 1st respondent’s letter dated 19. 10. 2016 is unlawful, illegal, unfair, wrongful, unprocedural and unconstitutional hence, null and void ab initio and of no legal consequence.

ii. The claimant prayed for a declaration that the demotion of the claimant from the position of Director, Finance and Accounting (PSC15) to, the position of Deputy Director, Finance and Accounting (PSC14) vide the 1st respondent’s meeting held on 16. 01. 2014 vide resolution MIN. NO.PSC/1434/16/1/2014, and communicated to the claimant via the 2nd respondent’s letter of 20. 01. 2014, is unlawful, illegal, unfair, wrongful, unprocedural, and unconstitutional hence, null and void ab inition. The Court finds that the demotion was as a result of due process, and at the end of the disciplinary process the 1st respondent imposed the punishment. The claimant’s application for administrative appeal was considered and declined. The Court returns that the matter was closed and raising it in the present suit was an afterthought and there is no justification to interfere with the 1st respondent’s decision in that regard. The prayer will therefore fail.

iii. The claimant prayed for an order that the claimant’s retirement in the interest of the service contained in the 1st respondent’s letter dated 19. 10. 2016, be and is hereby set aside or revoked or recalled by orders of the Honourable Court. The Court has found that the decision was unfair and ultra vires and the claimant would be entitled as prayed for.

iv. The claimant prayed for an order that the claimant’s demotion from the position of Director, Finance and Accounting (PSC15) to, the position of Deputy Director, Finance and Accounting (PSC14) vide the 1st respondent’s meeting held on 16. 01. 2014 vide resolution MIN. NO.PSC/1434/16/1/2014, be and is hereby set aside or revoked or recalled by orders of the Honourable Court. The Court has already found that the matter of demotion was closed under a due process. The prayer will be declined.

v. The claimant prayed for an order that the claimant herein be and is hereby reinstated to employment with the respondent in the position that he held prior to the purported retirement and or demotion with full salary, benefits, privileges and such other payments as may have been due to him, prior to the purported retirement and or demotion. The Respondents submit that the Court has to consider the several disciplinary cases the claimant faced while in the respondent’s service. That his record of service was not clean. In his letter of 09. 06. 2016 to the 1st respondent being reply to show-cause letter for retirement in the public interest, he tendered his apologies for misunderstandings. He further appeared to underscore underlying factors in his work place relationship including with the 2nd respondent that needed mediation or reconciliation. The claimant was also remorseful for the turn of events. The Court has considered such circumstances and depicted work environment that suggest practicability of reinstatement may appear to diminish. However, it is submitted for the claimant that the rare circumstance in the present case is that the retirement in the interest of the service was ultra viresand being null and void, the Court has no option but to order a reinstatement. The Court has indeed found that the termination was null and void. The respondents had a duty to comply with the statutory provisions and in particular the Parliamentary Service Commission Regulations, 2002. The Court returns that the statutory underpinning of the claimant’s employment was undermined resulting into a termination decision that was null and void.  It is submitted for the respondent that in a master and servant relationship, the Court should follow Republic –Versus- Parliamentary Service Commission & Another Ex-parte Abdi Yare Mohammed [2007]eKLR,(Emukule J) thus, “ ...On matters of master and servant, an order of Certiorari will not issue because it would create a situation of forced employer or employee relationship leading to servitude and slavery on either party. A declaration that the termination was not in accord with procedural safeguards becomes a cornerstone and foundation for any suit for damages for the unlawful dispensation of the applicant’s services.” While the Court agrees with that position, it is the Court’s view that procedural unfairness within jurisdiction may readily lead to a remedy in damages. However in the present case, it is clear that there was procedural unfairness coupled with an ultra vires retirement decision. In such circumstances, the retirement decision was null and void ab initio with the consequence that the claimant is entitled to reinstatement. The Court finds that the null and void termination decision was a rare circumstances that tied the hands of the Court towards the award of the remedy of specific performance of reinstatement within the parameters of section 49 of the Employment Act, 2007. While making that finding, the Court has further considered the weathered master – servant relationship in the public service after the Constitution of Kenya 2010 with the consequence that more and more emphasis is towards upholding due process in the public service disciplinary processes for protection of public officers as envisaged in Article 236 of the Constitution of Kenya, 2010. Thus in Richard Bwogo Birir –Versus- Narok County Government and 2 Others [2014] eKLR the Court stated, “To answer the 1st issue for determination being whetherthe pleasure doctrine applies in Kenya’s public service and particularly in this case, the court finds that the pleasure doctrine and the related doctrine of the servants of the crown does not apply in public and state service of the new Republic under the Constitution of Kenya, 2010.  The court further finds that the pleasure doctrine and the doctrine of servants of the crown did not apply and could not be legitimately invoked in the dismissal of the petitioner by the 2nd respondent as was purportedly advanced for the respondents.  Finally, the court holds that it is the doctrine of servants of the people and the doctrine of due process that apply to public and state officers in Kenya. The court further holds that it is through the application of the doctrine of servants of the people and the doctrine of due process of law that public and state officers in Kenya are subdued by the people who are the holders of sovereign power in the new Republic.”

Further,

“The court has carefully considered the enumerated constitutional provisions and holds that all persons holding public or state office in Kenya in the executive, the legislature, the judiciary or any other public body and in national or county government are servants of the people of Kenya.  The court holds that despite the level of rank of state or public office as may be held, no public or state officer is a servant of the other but all are servants of the people.  Thus, the court holds that the idea of servants of the crown is substituted with the doctrine of servants of the people under the new Republic as nurtured in the Constitution of Kenya, 2010.  The hierarchy of state and public officers can be complex, detailed and conceivably very long vertically  and horizontally but despite the rank or position held, the court holds that they are each a servant of the people and not of each other as state or public officers.  They are all the servants of the people.  The court holds that there are no masters and servants within the hierarchies of the ranks of state and public officers in our new Republic.”

In the present case, the Court will not therefore place emphasis on the relationships between individual public or state officers. None was a servant or master of the other. What is paramount, in the opinion of the Court, is that the officers interrelate and work together within the lawful prescription of the standards of a good public service delivery. They have no private treaties binding one officer to the other but only the constitutional, statutory and lawful policies or practices that are applicable to the public service and incorporated in the individual officer’s contract of service . In that sense, the Court returns that an order of reinstatement would not amount to imposing employer-employee relationship within the public service circumstances under the Constitution of Kenya, 2010. The Court returns that the overriding factor in the case was that the decision for retirement of the claimant in the interest of the service was ultra vires, unfair, unlawful, null and void thereby inviting reinstatement to be the appropriate remedy within the provisions and effect of Article 236 of the Constitution.

vi. The claimant made no submissions on the alternative remedies of monetary awards and they are deemed abandoned.

In conclusion, judgment is hereby entered for the claimant against the respondents for:

a. The declaration that the purported retirement of the claimant in the interest of the service contained in the 1st respondent’s letter dated 19. 10. 2016 is unlawful, illegal, unfair, wrongful, unprocedural and unconstitutional hence, null and void ab initio and of no legal consequence.

b. That the claimant’s retirement in the interest of the service contained in the 1st respondent’s letter dated 19. 10. 2016, be and is hereby set aside, revoked or recalled by this order of the Honourable Court, accordingly.

c. That the claimant herein be and is hereby reinstated to employment with the 1st respondent in the position of Deputy Director, Finance and Accounting PSC14 that he held prior to the purported retirement in the interest of the service, with effect from the effective date of retirement, 19. 10. 2016, with full salary, benefits, privileges and such other payments as may have been due to him, prior to the purported retirement.

d. The 1st respondent to pay the claimant’s costs of the suit.

Signed, datedand deliveredin courtat Nairobithis Friday 23rd November, 2018.

BYRAM ONGAYA

JUDGE