"You forged your salary increase letter" - now court awards damages for this allegation

28 March 2019 · Carmel Rickard

The case of Evans Mukolwe will not give much encouragement to anyone considering a job with Kenya Wildlife Service (KWS). Mukolwe was recruited from a senior job with considerable prestige at the World Meteorological Organisation in Geneva. He was appointed to head the KWS in October 2003 but though he was promised that the salary would be made comparable to that which he had enjoyed in Switzerland, he was repeatedly frustrated when salary increases failed to materialise. Finally, in June 2004, he received a letter from the board of trustees giving him the increase and associated perks he had wanted. The upgraded salary lasted only a couple of months, however. Then he was suddenly suspended, without pay. KWS claimed that the letter telling Mukolwe about his pay increase was forged; a very serious claim to make about anyone, let alone a scientist who had been hand-picked and persuaded to leave his position in the WMO Secretariat. Understandably, Mukolwe sued and he has just been awarded more than Kshs24m ($240 000) in damages, plus three months' salary in lieu of notice as well as other payments.

Read judgment

Ironically enough, given the problems experienced by the Kenya Wildlife Service, it would be true to say that Evans Mukolwe, installed as head of the service in October 2003, was poached from his former job.

There was well over a year still to go on his contract with the World Meteorological Organisation in Geneva when Mukolwe was head-hunted and persuaded to accept the post of KWS director.

But Mukolwa was “greatly dissatisfied” with the KWS salary package and pushed the board for it to be increased to the level of his job in Geneva. In fact, he said he had been promised equivalent remuneration if he took the post.

In January 2004 Collins Church, who chaired the KWS board of trustees, wrote to Mukolwa saying he was aware that the office of the President was still working on the question of his final salary and terms of service. Church said he knew that Mukolwe’s previous employer had paid his family’s school fees and so he had authorized the payment of $23 000 for his children’s university expenses. The board also discussed the question of the salary increase on occasion and, according to the minutes, its members noted that the required permission had not been received from the relevant ministry. These delays, said the board, threatened its integrity.

Finally, in June 2004 Mukolwe received a letter from Church informing him of an increased package. The increases were immediately implemented and backdated to his appointment, but in November that year he was suspended with no pay. One of the issues raised against him was the authenticity of the letter and its contents. KWS now claimed that Church’s signature was forged and that Mukolwe should not have been paid the increased package as authorized in the letter.

Mukolwe denied forgery, saying the human resources department would never have paid the new package if the letter had not been genuine. He was later vindicated by an acquittal at the high court.

Judge Mathews Nduma, who heard Mukowe’s claim for damages and reinstatement, said no witness or evidence was forthcoming from the inspectorate of parastatals on the investigations into Mukolwe’s management irregularities alleged by KWS. He had been acquitted of all charges by the high court and as there had been no disciplinary hearing against him there was “absolutely no evidence” before the court of any valid reason for his suspension and replacement as director.

He had been paid according to the letter he received and there was no explanation by any member of the board as to how these payments could have been made without approval of the board. It was “inconceivable” that the payments would have been sanctioned if there had been uncertainty about whether the increases had been approved.

Mukolwe had never been charged with forging the letter, and it was even “more curious” that Church had not filed a complaint with the police that his signature had been forged. The forgery claim was a clear “afterthought” the judge concluded, and could not be used to claim back the salary increases paid to Mukolwe.

Judge Nduma said he was satisfied that KWS had increased Mukolwe’s package as approved in the letter. Further, KWS had failed to rebut, to the court’s satisfaction, the “very credible evidence” put up by Mukolwe. “It is inconceivable that a high flier of the caliber of (Mukolwe), fresh from a very lucrative assignment in Geneva, sacrificed to honour a presidential appointment (at the KWS), would bend that low as to forge his own letter of appointment.”

As it was more than 14 years since Mukolwe had lost his job it was no longer practicable to reinstate him. He should thus be awarded damages, as he had suffered “great loss” through his “mistreatment” by KWS and its parent ministry, said the judge. In addition, the court ordered that the state pay the gratuity due to him, notice pay and outstanding arrears pay. Against those awards, KWS had claimed some advances for house rental, carpets and curtains as well as other bills, which, deducted from the amount awarded to Mukolwe by the court, meant the state would have to pay him Ksh28,926,563 (almost $289 000) plus interest.

In the years since Mukolwe’s removal from office, critics have pointed out that KWS has repeatedly failed to find the right person for the job of director. Instead of appointing an insider with experience of the real work of KWS, the board chooses people with no record in the field of wildlife management. These appointees arrive with considerable fanfare but soon leave, having shown themselves unsuitable. And as a result, KWS suffers while poachers flourish.

Carmel Rickard

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