In Summary
- Whistle blower
- Board members
- Compulsory leave
- Show cause demand letter
- Termination letter
- DOWNLOADABLE; Court ruling
- Municipal Council dismissals
- Rejoinder(s)
- #iKUWEiKUWE Corner
COUNTY REWARDS BERNARD LUMBA WHO WAS PREVIOUSLY FIRED OVER LOSS OF 4.6MILLION AT NZOWASCO
This article was prompted by a parcel ikuweikuwe.com received via courier from an anonymous author, a NZOWASCO member of staff. The author was writing on behalf of the Nzoia Water Services Company (NZOWASCO) staff who wish to thru ikuweikuwe.com point out issues surrounding the irregular appointment of Mr. Benard Lumba to the board of NZOWASCO.
It reads;
#iKUWEiKUWE Updates has learnt that prior to the replacement of Millicent Wafula who sat on the board on behalf of CEC Finance, Ms. Esther Wamalwa there were unsuccessful attempts to remove the board Chair Ms. Rebbeca Masibayi instead but she received solid defense from the board. This therefore exposed Millicent Wafula who was one of the best board members in terms of service delivery but was forced out since she had been seconded by the Finance minister anyways
The following letters were also attached;
- 4th March 2015; MD sends Lumba on Compulsory leave pending external investigations
2. 4th June 2015: Show cause demand letter
3. 24th August 2015: Termination letter
Board Members;
- Rebbeca Masibayi – Chairperson, Bungoma
- CECM Renson Makheti _ Bungoma CEC Water
- CECM Bonface Wanyonyi – TransNzoia CEC Finance
- Furaha Lusweti – – TransNzoia
- John Meng’wa – TransNzoia CEC Water
- Joseph Munyasia – Bungoma
- Millicent Wafula Benard Lumba – (Alternate director – represents CEC on the Board)
- Robert Tigogo – Board director – TransNzoia
- Matthews Wakhungu – NZOWASCO MD
- Automatic members of the board include; CECM Water, Environment, Tourism & Natural Resources, CECM Finance and Economic Planning (both Bungoma and TransNzoia Counties) under the supervision of Lake Victoria North Water Services
Rejoinder;
Contacted the CEC Finance, Esther Wamalwa clarified that;
- The position of the alternate director is normally reserved for the Director Accounting Services who in this case is Benard Lumba
- She nevertheless remained mum on the termination and re-employment of Benard Lumba.
#iKUWEiKUWE Corner;
- FIRST, I wish to thank the whistle blower for reaching out with this expose… Asante sana rat ANONYMOUS
- The CECM Water, Environment, Tourism & Natural Resources should purpose to ensure concerns raised above are keenly looked into as the County Public Service Board (CPSB) relooks at his employment procedure once more
- #iKUWEiKUWE rats allege that one Jacton Kabeyi, Benard Lumba and one Dinah the CO finance were once dismissed from the municipal council on corruption related cases…
- Kabeyi was later assisted by Hon. Kombo to land a job at NZOWASCO
- This County Govt. must choose to avoid loading cartels into public offices if it really care about service delivery, integrity and zero tolerance to corruption
- The CEC Water and his CO are yet to inform us what happened to the monies allocated to drill boreholes and improve water springs throughout Bungoma County before they bought a rig that has so far done
- Need I remind you that Wangamati’s regime loves working with such tainted and corrupt individuals who are willing to execute his verbal orders with total disregard of the rule of law…
- The CPSB is hugely responsible too
- #iKUWEiKUWE could not reach Water CEC, Lumba for comment(s)
Court ruling; Cause_18_of_2018
- Here is a Court ruling in a Benard Lumba vs NZOWASCO case;
IN THE EMPLOYMENT & LABOUR RELATIONS COURT
AT BUNGOMA
CAUSE NO. 18 OF 2018
BENARD LUMBA…………………………………………………CLAIMANT
VERSUS
NZOIA WATER SERVICES CO.LTD……………….RESPONDENT
J U D G M E N T
This suit was filed on 28.9.2017 and served on the Respondent who filed a Memorandum of Appearance on 23rd October 2017.
Federation of Kenya Employers (FKE) did not file a defense for the Respondent and the matter was on 29.5.2018 set for Formal Proof on 26.9.2018.
On 26.9.2018 the matter proceeded for Formal Proof as scheduled. The Respondent sneaked to the file a Memorandum of defence apparently filed on 26.9.2018 without leave of court.
This is the same date the matter proceeded to formal proof and no representative of the Respondent or FKE came before court but instead sneaked the document at the registry.
The court has seen the defence document in the process of writing this judgment and shall ignore its contents and strike it off the record.
The suit is undefended therefore. The Claimant’s testimony in chief is not controverted and he was not cross examined on the same. The Claimant prays for compensation for unlawful termination of employment and payment of terminal benefits to wit:
(i) Gratuity calculated at 31% on the gross salary for the 3 years’ contract period.
(ii) 52 days in lieu of leave days not taken
(iii) Interest and costs.
Facts:
The Claimant was employed on 9.9.2010 as assistant Regional Manager, Commercial.
On 27.5.2013 he was appointed as acting Internal Auditor to which position he was interviewed on 30.8.2013 and given a three-year contract with effect from 1.9.2013.
The Claimant earned Kshs. 95,000 and 20,000 house allowance.
On 4.3.2015, the Claimant was placed on compulsory leave pending investigations following a loss of Kshs 1.6 million at Bungoma Branch and Kshs 3 million at Kitale Branch.
As at March 2015, the Claimant earned a gross salary of Kshs 150,000 but in March 2015 the Claimant received a pray cut of Ksh 20,000 without explanation.
The Claimant filed for a formal leave which expired on 4.6.2015 and he was served with a show cause letter on 4.6.2015 in which he was to answer various allegations contained in the letter.
The Claimant replied to the show cause letter and was called before disciplinary staff committee which he alleges comprised of junior staff without financial back ground.
The Claimant denied the allegations before the committee and states that his defence was ignored and not well evaluated. He states that the termination of his employment on 24.8.2015 was not for a valid reason and did not follow a fair procedure.
The Claimant stated that regional managers were responsible for the Kshs 4.5 million loss and finance commercial and debtor managers who failed to carry out bank reconciliations.
The Claimant adds that the discovery of the loss was a result of his reports as explained in the reply to the show cause letter.
The Claimant prays to be awarded as prayed.
Determination:
The Claimant bears the primary onus of proving on a balance of probabilities that his employment was terminated for no valid reason and that the Respondent did not follow a fair procedure in terms of Section 107 and 108 of the Evidence Act Cap 80 Laws of Kenya as read with Section 47(5) of the Employment Act. 2007
This remains the case even where, as in the present case, no defence was filed and no evidence adduced by the Respondent in rebuttal.
The court is satisfied that the Respondent had a valid reason to ask the Claimant to show cause why his employment ought not to be terminated.
The Respondent had suffered a loss of Kshs 4.5 million Kshs under the watch of the Claimant who was the Internal Auditor of the organization. The Claimant gave a written explanation and was given opportunity to present his case before a staff disciplinary committee.
The committee found the explanation by the Claimant to be unsatisfactory and recommended the Claimant’s employment to be terminated.
The court is satisfied that the Respondent had a valid reason in terms of Section 43(1) and (2) of the Employment Act 2007 to terminate the employment of the Claimant. From the testimony by the Claimant, the Respondent followed a fair procedure in terminating the employment of the Claimant. The Claimant could not chose which member of staff to be selected to the disciplinary panel. This complaint by the Claimant lacks merit.
The court finds that the Respondent followed a fair procedure in terms of Sections 41 and 45 of the Employment Act in terminating the employment of the Claimant.
In terms of Clause 3.1 of the Letter of appointment signed on 1.9.20013, the Claimant was entitled to gratuity calculated at 17.5% of the consolidated salary received for each completed year of service for both years when leaving in the second year.
The contract started on 1.9.2013 and termination was on 24.8.2015 almost at the tail end of the 2nd year.
The Claimant is therefore entitled to payment of gratuity calculated as follows
(150,000×17.5%x2) Kshs 52,500.
The Claimant is also entitled to Kshs 95,000 in lieu of 52 days untaken leave days.
It is not apparent from the letter of termination that the Claimant was paid in lieu of three (3) months notice in terms of Clause 7 of the Letter of appointment.
If it was not done, the Respondent is obliged to pay the Claimant Kshs 450,000 in lieu of three months termination notice.
Accordingly the Claimant is awarded as against the Respondent as follows:-
a) Kshs 52,500 gratuity
b) Kshs 95,000 in lieu of leave
c) Kshs 450,000 in lieu of notice
Total amount Kshs. 597,000
d) Interest at court rates from date of filing suit till payment in full.
e) Costs.
DATED, SIGNED and DELIVERED at BUNGOMA this 29TH day of MARCH, 2019.
HON. M. N. NDUMA, JUDGE
EMPLOYMENT AND LABOUR RELATIONS COURT
BUNGOMA
Appearances:
Mr. Kassim for Claimant
FICE for Respondent
Chrispo: Court Assistant.
