“Radical surgery” cutting off this judicial employee was unlawful – court

WHEN Edward Asitiba was sacked as Chief Supplies Officer in the Kenyan judiciary, he was told it was “in the public interest” that he should go. But Asitiba did not agree – and now he has a judgment backing his complaint, as well as a large payout due to him as compensation.

Edward C. Asitiba v Attorney General [2018] eKLR

EDWARD Asitiba was one of very many judicial employees, from clerks to judges, who lost their jobs as a result of Kenya’s “radical surgery” dating back to 2002.

Some have tried unsuccessfully to get their jobs back, a few others – like Asitiba – have been more lucky.

He was Chief Supplies Officer in the judiciary until he was “retired in the public interest” in 2003. That year, a treasury circular ordered all supply personnel to go on compulsory leave, and he was later told he had to answer allegations related to three issues: poor public relations, lack of courtesy to his seniors and suspicion of corruption due to how he dealt with suppliers.

Despite his response to these claims, he was later informed by letter that he had been “retired in the public interest”. In his application to the Employment and Labour Relations Court (ELRC), Asitiba denied all the allegations made against him all those years ago. He says that he was “a good officer”, that he performed his work well and that he was twice promoted in recognition of his work. He also says that the claims made against him were “generalities” and that no “clear” and “specific” offence was levelled.

Because he had been wrongly let go, he wanted the ELRC to reinstate him or compensate him for all those lost years of service. He also says that even though “retirement in public interest” was provided for in terms of specific regulations of the Judicial Service Commission, those regulations were not followed in his case.

In 2004 the attorney general filed a statement of defence, saying that Asitiba had not been treated unfairly or unlawfully in the way his services were terminated. But the AG did not file any witness statements or call any witnesses and Asitiba’s own evidence was left unrebutted.

As far as ELRC judge Mathews Nduma was concerned, the court needed to decide whether Asitiba was an employee of the Judicial Service Commission in the first place. Then he had to determine whether Asitiba’s involuntary “retirement” at the age of 42 years was “lawful and fair” and finally, the court should consider whether Asitiba was entitled to any relief.

As part of his case, Asitiba handed to the court various letters of recommendation received while he worked with the judiciary. One of these was a letter from the commission promoting him to the position of chief supplies officer from September 2002. This letter made clear that he was an employee of the commission, the court found.

In considering whether the termination of Asitiba’s employment was lawful and fair, the court noted the documentary and oral evidence he presented of his good service to the judiciary, and that this led to his “meteoric rise” to the position of chief supplies officer.

Asitiba “testified under oath and presented his good record at work leading to various promotions and appointment of position of responsibility up to the date (he was) suddenly sent on compulsory leave by the treasury.”

In response the attorney general put up nothing to contradict Asitiba’s evidence. Failure to do so led the court “to the inevitable conclusion” that Asitiba had proved, on a balance of probabilities, that his employment was “wrongfully and unfair(ly) terminated”.

Previous court decisions made clear that when someone was “retired in the public interest” the employer had to show that this decision was “driven by a public policy objective” and that the decision itself was “legitimate and justifiable”.  The employer would also be required to show that fair termination procedures had been followed before the decision was taken.

In Asitiba’s case, said the court, “none of the reasons cited in the letter of termination were proved to be valid at all.”

So what if any remedies were available?

His employment ended 15 years ago and he was now about 57. He has not had a job since he lost his position within the judiciary. Asitiba had asked for reinstatement or compensation, said the judge, and he had clearly “suffered immense financial loss as a result of the wrongful termination of his employment.” But while it was neither appropriate nor reasonable to reinstatement him in his former job or to order that he be re-employed, he was still entitled to “equitable remedies” under common law related to breach of contract of employment leading to “loss and damage” by unlawfulness. The doctrine of legitimate expectation was also applicable to his case.

Asitiba had shown he was “victimized” and that he had not been treated in accordance with the treasury department directives related to procurement officers under 50 years old. He had many years of service ahead as chief procurement officer, earning a very good salary.

Against these facts, the court awarded him global general damages of Kshs 6 000 000 for unlawful and unfair termination of employment, with interest until payment in full, and with the attorney general to pay the legal costs.

Though Asitiba might have hoped for more, he now finds himself in a far more fortunate position than many others who have tried to challenge their removal from the judiciary over allegations – some more vague than others – of corruption.

_______

Edward C. Asitiba v Attorney General [2018] eKLR

Groups audience: