Petition on Unlawful Termination and Defamation

8/11/2019 Petition on Unlawful Termination and Defamation

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REPUBLIC OF KENYAREPUBLIC OF KENYAIN THE INDUSTRIAL COURT OF KENYA AT KISUMUIN THE INDUSTRIAL COURT OF KENYA AT KISUMU

PETITION NO. OF 2014PETITION NO. OF 2014

IN THE MATTER OF:IN THE MATTER OF: ARTICLES 1, 2, 3, 10, 19, 20, 22, 23(1) (3),ARTICLES 1, 2, 3, 10, 19, 20, 22, 23(1) (3),

2!(1),2!(1), 2!(4), 2!("), 2#, 3", 41(1), 41(2),2!(4), 2!("), 2#, 3", 41(1), 41(2),4!(1),4!(1),4!(2), 4#, "0(1),!3, 1"9, 1$0, 1$", 23$(4!(2), 4#, "0(1),!3, 1"9, 1$0, 1$", 23$(%%),), 2"92"9 2$0 2$0 OF THE CONSTITUTION OF KENYAOF THE CONSTITUTION OF KENYA

ANDAND

IN THE MATTER OF:IN THE MATTER OF: RULES 23 AND 24 OF THE CONSTITUTION OFRULES 23 AND 24 OF THE CONSTITUTION OFKENYA (PROTECTION OF RI&HTS ANDKENYA (PROTECTION OF RI&HTS ANDFUNDAMENTAL FREEDOMS) PRACTICE ANDFUNDAMENTAL FREEDOMS) PRACTICE ANDPROCEDURE RULES, 2013PROCEDURE RULES, 2013

ANDAND

IN THE MATTER OF:IN THE MATTER OF: SECTIONS 41, 43, 44, 4", 4$, 4!, 49 AND "0 OFSECTIONS 41, 43, 44, 4", 4$, 4!, 49 AND "0 OFTHE EMPLOYMENT ACT, 200!THE EMPLOYMENT ACT, 200!

ANDAND

IN THE MATTER OF:IN THE MATTER OF: MUMIAS SU&AR COMPANY LIMITED STAFFMUMIAS SU&AR COMPANY LIMITED STAFFMANUAL POLICY NO. 4! ON DISCIPLINARYMANUAL POLICY NO. 4! ON DISCIPLINARYPROCEDURESPROCEDURES

ANDAND

IN THE MATTER OF:IN THE MATTER OF: DEFAMATION ACT, CHAPTER 3$ LA'S OF KENYADEFAMATION ACT, CHAPTER 3$ LA'S OF KENYA

ANDAND

IN THE MATTER OF:IN THE MATTER OF: ALLE&ED CONTRAENTION OF FUNDAMENTALALLE&ED CONTRAENTION OF FUNDAMENTALRI&HTS AND FREEDOMS UNDER ARTICLES 2!,RI&HTS AND FREEDOMS UNDER ARTICLES 2!,2#, 41, 4!, 4# "0 OF THE CONSTITUTION OF2#, 41, 4!, 4# "0 OF THE CONSTITUTION OFKENYA, 2010KENYA, 2010

BYBY

EMILY KADENYI OTIENO.EMILY KADENYI OTIENO.PETITIONERPETITIONER

~VERSUS~

MUMIAS SU&AR COMPANY MUMIAS SU&AR COMPANY LIMITED..................................................................... RESPONDENTLIMITED..................................................................... RESPONDENT


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:.:. #he $espondent in contravention of Articles 05 and : of the#he $espondent in contravention of Articles 05 and : of the

Constitution, did not refer to any particular con;icting clauses in theConstitution, did not refer to any particular con;icting clauses in the

alleged agreement that the Petitioner was accused of, mamployment Act,

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5.5. #he $espondent7s actions violated the Petitioner7s right to fair#he $espondent7s actions violated the Petitioner7s right to fair

administrative action as per Articles 05 and : of Constitution of Kenyaadministrative action as per Articles 05 and : of Constitution of Kenya

-", ection 0: of the >mployment Act, -5 and the rules of natural-", ection 0: of the >mployment Act, -5 and the rules of natural

8ustice and fairness48ustice and fairness4

%.%. ?nless conservatory orders are granted the Petitioner is highly li


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""."". t is in the interest of 8ustice and fairness that the Application fort is in the interest of 8ustice and fairness that the Application for

conservatory orders and Petition herein e urgently admitted forconservatory orders and Petition herein e urgently admitted for

hearing during this summer vacation.hearing during this summer vacation.

DATEDDATEDatat NAIROBINAIROBIthisBBBBday ofthisBBBBday of SEPTEMBERSEPTEMBER,, 20142014

..

************ADOCATE FOR THE PETITIONER+APPLICANTADOCATE FOR THE PETITIONER+APPLICANT

DRA'N AND FILED BY:DRA'N AND FILED BY:

****** COMPANY****** COMPANYA2)CA#>A2)CA#>DE F?(2DG, F()CK A, "-DE F?(2DG, F()CK A, "-#H#HE())$E())$>A#>$D DG, FH)P $)A2>A#>$D DG, FH)P $)A2P.). F)X ""%/"I"P.). F)X ""%/"I"

NAIROBINAIROBITO BE SERED UPON:TO BE SERED UPON:

MUMIAS SU&AR COMPANYMUMIAS SU&AR COMPANYP.). F)X P$A#> FAGP.). F)X P$A#> FAG

MUMIASMUMIAS


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REPUBLIC OF KENYAREPUBLIC OF KENYA

IN THE INDUSTRIAL COURT OF KENYA AT KISUMUIN THE INDUSTRIAL COURT OF KENYA AT KISUMUPETITION NO. OF 2014PETITION NO. OF 2014

IN THE MATTER OF:IN THE MATTER OF: ARTICLES 1, 2, 3, 10, 19, 20, 22, 23(1) (3),ARTICLES 1, 2, 3, 10, 19, 20, 22, 23(1) (3),2!(1),2!(1), 2!(4), 2!("), 2#, 3", 41(1), 41(2),2!(4), 2!("), 2#, 3", 41(1), 41(2),4!(1),4!(1),4!(2), 4#, "0(1),!3, 1"9, 1$0, 1$", 23$(4!(2), 4#, "0(1),!3, 1"9, 1$0, 1$", 23$(%%),), 2"92"9 2$0 2$0 OF THE CONSTITUTION OF KENYAOF THE CONSTITUTION OF KENYA

ANDAND

IN THE MATTER OF:IN THE MATTER OF: RULES 23 AND 24 OF THE CONSTITUTION OFRULES 23 AND 24 OF THE CONSTITUTION OFKENYA (PROTECTION OF RI&HTS ANDKENYA (PROTECTION OF RI&HTS AND

FUNDAMENTAL FREEDOMS) PRACTICE ANDFUNDAMENTAL FREEDOMS) PRACTICE ANDPROCEDURE RULES, 2013PROCEDURE RULES, 2013

ANDAND


ANDAND

IN THE MATTER OF:IN THE MATTER OF: MUMIAS SU&AR COMPANY LIMITED STAFFMUMIAS SU&AR COMPANY LIMITED STAFFMANUAL POLICY NO. 4! ON DISCIPLINARYMANUAL POLICY NO. 4! ON DISCIPLINARY

PROCEDURESPROCEDURES

ANDAND

IN THE MATTER OF:IN THE MATTER OF: DEFAMATION ACT, CHAPTER 3$ LA'S OF KENYADEFAMATION ACT, CHAPTER 3$ LA'S OF KENYA

ANDAND


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BYBY

EMILY KADENYI OTIENO.PETITIONER

~VERSUS~


CHAMBER SUMMONSCHAMBER SUMMONS

(Section 10 of the Judicature Act, Rules 3(1) and 3(2) of the High Court Practice and(Section 10 of theJudicature Act, Rules 3(1) and 3(2) of the High Court Practice andProcedure Rules)Procedure Rules)

LET ALL PARTIES CONCERNEDLET ALL PARTIES CONCERNEDattend the Honourale 6udge in Chamersattend the Honourale 6udge in Chamers

on theBBBBB.day ofBBBBBBBBBB.-"0 at '. )7cloc< in theon theBBBBB.day ofBBBBBBBBBB.-"0 at '. )7cloc< in the

forenoon or so soon thereafter as Counsel for the Petitioners+Applicants mayforenoon or so soon thereafter as Counsel for the Petitioners+Applicants may

e heard on an application fore heard on an application for ORDERSORDERS!I!I

aJaJ THATTHATthe Honourale Court e pleased to admit the Dotice of otionthe Honourale Court e pleased to admit the Dotice of otion

application led herewith to e heard during this ummer vacation.application led herewith to e heard during this ummer vacation.

JJ THATTHATthe costs of this application e in the cause.the costs of this application e in the cause.

ON THE &ROUNDS THAT:ON THE &ROUNDS THAT:

".". #he Petitioner was employed y the $espondent on %#he Petitioner was employed y the $espondent on % thth ay "''%ay "''%

initially as the (egal )*cer+Assistant Company ecretary at a monthlyinitially as the (egal )*cer+Assistant Company ecretary at a monthly

salary of Kshs. -,"/0.+1 among other enets. #he Petitioner wassalary of Kshs. -,"/0.+1 among other enets. #he Petitioner was

later promoted to Company ecretary+ 2irector of (egal a3airs of thelater promoted to Company ecretary+ 2irector of (egal a3airs of the

$espondent Company4$espondent Company4


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-.-. #he $espondent in a letter dated -5#he $espondent in a letter dated -5thth6une -"0 unlawfully, illegally6une -"0 unlawfully, illegally

and wrongfully summarily dismissed the Petitioner and threatens toand wrongfully summarily dismissed the Petitioner and threatens to

commence the process of recruiting another person to the positioncommence the process of recruiting another person to the position

previously held y the Petitioner+ Applicant herein4previously held y the Petitioner+ Applicant herein4

/./. #he $espondent had decided to terminate the employment of the#he $espondent had decided to terminate the employment of the

Petitioner+ Applicant on an incomplete investigation and withoutPetitioner+ Applicant on an incomplete investigation and without

considering hearing the Petitioner7s+Applicant case on the allegationsconsidering hearing the Petitioner7s+Applicant case on the allegations

contrary to the rules of natural 8ustice, company rules on disciplinecontrary to the rules of natural 8ustice, company rules on discipline

procedures, employment Act and the Constitution4procedures, employment Act and the Constitution4

0.0. #he $espondent arrived at the decision to summarily dismiss the#he $espondent arrived at the decision to summarily dismiss the

Petitioner+ Applicant ased on a forensic investigation whose ndingsPetitioner+ Applicant ased on a forensic investigation whose ndings

were not availed to the Petitioner+Applicant to enale her ade9uatelywere not availed to the Petitioner+Applicant to enale her ade9uately

and e*ciently respond to the claims therey infringing theand e*ciently respond to the claims therey infringing the

Petitioner7s+Applicant7s right to fair trial enshrined in Article : of thePetitioner7s+Applicant7s right to fair trial enshrined in Article : of the

constitution of Kenya, -"4constitution of Kenya, -"4

:.:. #he $espondent in further contravention of Articles 05 and : of the#he $espondent in further contravention of Articles 05 and : of the



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%.%. ?nless conservatory orders are granted the Petitioner is highly li$D DG, FH)P $)A2>A#>$D DG, FH)P $)A2P.). F)X ""%/"I"P.). F)X ""%/"I"


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NAIROBINAIROBI

TO BE SERED UPON:TO BE SERED UPON:

MUMIAS SU&AR COMPANYMUMIAS SU&AR COMPANY

P.). F)X P$A#> FAGP.). F)X P$A#> FAGMUMIASMUMIAS

f an! "art! ser#ed does not a""ear at the ti$e and "lace a%o#e&$entionedf an! "art! ser#ed does not a""ear at the ti$e and "lace a%o#e&$entionedsuch orders 'ill %e $ade and "roceedings taen as the court $a! thin ustsuch orders 'ill %e $ade and "roceedings taen as the court $a! thin ust

and e*"edient+and e*"edient+




ANDAND


ANDAND


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ANDAND

IN THE MATTER OF:IN THE MATTER OF: MUMIAS SU&AR COMPANY LIMITED STAFFMUMIAS SU&AR COMPANY LIMITED STAFF

MANUAL POLICY NO. 4! ON DISCIPLINARYMANUAL POLICY NO. 4! ON DISCIPLINARYPROCEDURESPROCEDURESANDAND

IN THE MATTER OF:IN THE MATTER OF: DEFAMATION ACT, CHAPTER 3$ LA'S OF KENYADEFAMATION ACT, CHAPTER 3$ LA'S OF KENYAANDAND


BYBYEMILY KADENYI OTIENO.EMILY KADENYI OTIENO.

PETITIONERPETITIONER

~VERSUS~~VERSUS~


SUPPORTIN& AFFIDAITSUPPORTIN& AFFIDAIT

I,I, ********,********,a resident of Dairoi and of Post )*ce Fo@ Dumer ""%/"Ia resident of Dairoi and of Post )*ce Fo@ Dumer ""%/"I

" Dairoi in the $epulic of Kenya do ma


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/./. THATTHAT the $espondent in a letter dated -5the $espondent in a letter dated -5thth 6une -"0 unlawfully,6une -"0 unlawfully,

illegally and wrongfully summarily dismissed the Petitioner andillegally and wrongfully summarily dismissed the Petitioner and

threatens to commence the process of recruiting another person to thethreatens to commence the process of recruiting another person to the

position previously held y the Petitioner+ Applicant herein4position previously held y the Petitioner+ Applicant herein4

0.0. THATTHATthe $espondent had decided to summarily dismiss the Petitioner+the $espondent had decided to summarily dismiss the Petitioner+

Applicant on an incomplete investigation and without consideringApplicant on an incomplete investigation and without considering

hearing the Petitioner7s+Applicant case on the allegations contrary tohearing the Petitioner7s+Applicant case on the allegations contrary to

the rules of natural 8ustice, company rules on discipline procedures,the rules of natural 8ustice, company rules on discipline procedures,

employment Act and the Constitution4employment Act and the Constitution4

:.:. THATTHATthe $espondent arrived at the decision to summarily dismiss thethe $espondent arrived at the decision to summarily dismiss the






=.=. THATTHATthe $espondent in further contravention of Articles 05 and : ofthe $espondent in further contravention of Articles 05 and : of

the Constitution, did not refer to any particular con;icting clauses inthe Constitution, did not refer to any particular con;icting clauses in

the alleged agreement that the Petitioner was accused of, mamployment Act, -54

%.%. THATTHAT the $espondent7s actions violated the Petitioner7s right to fairthe $espondent7s actions violated the Petitioner7s right to fair



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'.'. THATTHATunless conservatory orders are granted the Petitioner is highlyunless conservatory orders are granted the Petitioner is highly

li


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****** COMPANY****** COMPANYA2)CA#>A2)CA#>DE F?(2DG, F()CK A, "-#H E())$DE F?(2DG, F()CK A, "-#H E())$>A#>$D DG, FH)P $)A2>A#>$D DG, FH)P $)A2

P.). F)X ""%/"I"P.). F)X ""%/"I"NAIROBINAIROBI



MUMIASMUMIAS


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IN THE MATTER OF:IN THE MATTER OF: ARTICLES 1, 2, 3, 10, 19, 20, 22, 23(1) (3),ARTICLES 1, 2, 3, 10, 19, 20, 22, 23(1) (3),

2!(1),2!(1), 2!(4), 2!("), 2#, 3", 41(1), 41(2),2!(4), 2!("), 2#, 3", 41(1), 41(2),4!(1),4!(1),4!(2), 4#, "0(1),!3, 1"9, 1$0, 1$", 23$(4!(2), 4#, "0(1),!3, 1"9, 1$0, 1$", 23$(%%),), 2"92"9 2$0 2$0 OF THE CONSTITUTION OF KENYAOF THE CONSTITUTION OF KENYA

ANDAND


ANDAND


ANDAND


ANDAND



BYBYEMILY KADENYI OTIENO.

PETITIONER

~VERSUS~


NOTICE OF MOTIONNOTICE OF MOTION

-nder Articles 22 and 1./ (2) (d) of the Constitution and-nder Articles 22 and 1./ (2) (d) of the Constitution and Rules 23 and 2 of theRules 23 and 2 of theConstitution of en!a (Protection of Rights and unda$ental reedo$s) PracticeConstitution of en!a (Protection of Rights and unda$ental reedo$s) Practice


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and Procedure Rules, 2013, Rule 1 of the ndustrial Court Rules, Section / of theand Procedure Rules, 2013, Rule 1 of the ndustrial Court Rules, Section / of the4$"lo!$ent Act and all ena%ling "ro#isions of the la'54$"lo!$ent Act and all ena%ling "ro#isions of the la'5

TAKE NOTICETAKE NOTICE that the Honourale Court will e moved on thethat the Honourale Court will e moved on the

BBBBBB..day of BBBBBBBBB.. -"0 at '. o7cloc< in the forenoonBBBBBB..day of BBBBBBBBB.. -"0 at '. o7cloc< in the forenoon

or so soon thereafter as Counsel for the Petitioner+Applicant may e heard onor so soon thereafter as Counsel for the Petitioner+Applicant may e heard on

an application foran application for ORDERS:ORDERS:

iJiJ THATTHAT this Application e certied urgent and e heardthis Application e certied urgent and e heard e* "artee* "arteat theat the

rst instance for the purposes of granting this prayer and prayer iiJrst instance for the purposes of granting this prayer and prayer iiJ

herein4herein4

iiJiiJTHATTHAT

pending thepending the

inter "artesinter "artes hearing and determination of thishearing and determination of this

Application, a conservatory order to issue restraining the $espondentApplication, a conservatory order to issue restraining the $espondent,,

either y themselves, assigns or any person claiming through them, fromeither y themselves, assigns or any person claiming through them, from

advertising or conducting any activity directed towards or with theadvertising or conducting any activity directed towards or with the

intention of sustantively lling the position of Companyintention of sustantively lling the position of Company

ecretary+2irector (egal A3airs of the $espondent or in any mannerecretary+2irector (egal A3airs of the $espondent or in any manner

whatsoever sustantively lling the said position4whatsoever sustantively lling the said position4

iiiJiiiJTHATTHAT

pending thepending the

inter "artesinter "artes hearing and determination of thishearing and determination of this

Application, a conservatory order to issue restraining the $espondentApplication, a conservatory order to issue restraining the $espondent,,

either y themselves, assigns or any person claiming through them, fromeither y themselves, assigns or any person claiming through them, from

interfering with the Petitioner7s possession of otor ehicle $egistrationinterfering with the Petitioner7s possession of otor ehicle $egistration

Dumer KF "L #oyota (and cruiser4Dumer KF "L #oyota (and cruiser4

ivJivJ THATTHAT pending the hearing and determination of the Petition herein, apending the hearing and determination of the Petition herein, a

conservatory order to issue restraining the $espondentconservatory order to issue restraining the $espondent, either y, either y

themselves, assigns or any person claiming through them, fromthemselves, assigns or any person claiming through them, from

advertising or conducting any activity directed towards or with theadvertising or conducting any activity directed towards or with the

intention of sustantively lling the position of Companyintention of sustantively lling the position of Company

ecretary+2irector (egal A3airs of the $espondent or in any mannerecretary+2irector (egal A3airs of the $espondent or in any manner

whatsoever sustantively lling the said position4whatsoever sustantively lling the said position4


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vJvJ THATTHAT pending the hearing and determination of the Petition herein, apending the hearing and determination of the Petition herein, a

conservatory order to issue restraining the $espondentconservatory order to issue restraining the $espondent, either y, either y

themselves, assigns or any person claiming through them, fromthemselves, assigns or any person claiming through them, from

interfering with the Petitioner7s possession of otor ehicle $egistrationinterfering with the Petitioner7s possession of otor ehicle $egistration

Dumer KF "L #oyota (and cruiser4Dumer KF "L #oyota (and cruiser4

viJviJ THATTHATthe $espondent ears the costs of this Application.the $espondent ears the costs of this Application.

'HICH APPLICATION'HICH APPLICATIONis ased on theis ased on the -// 567:-// 567:

".". #he Petitioner was employed y the $espondent on %#he Petitioner was employed y the $espondent on % thth ay "''%ay "''%

initially as the (egal )*cer+Assistant Company ecretary at a monthlyinitially as the (egal )*cer+Assistant Company ecretary at a monthly

salary of Kshs. -,"/0.+1 among other enets. #he Petitioner wassalary of Kshs. -,"/0.+1 among other enets. #he Petitioner was

later promoted to Company ecretary+ 2irector of (egal a3airs of thelater promoted to Company ecretary+ 2irector of (egal a3airs of the

$espondent Company4$espondent Company4

-.-. #he $espondent in a letter dated -5#he $espondent in a letter dated -5thth6une -"0 unlawfully, illegally6une -"0 unlawfully, illegally

and wrongfully summarily dismissed the Petitioner and threatens toand wrongfully summarily dismissed the Petitioner and threatens to

commence the process of recruiting another person to the positioncommence the process of recruiting another person to the position

previously held y the Petitioner+ Applicant herein4previously held y the Petitioner+ Applicant herein4

/./. #he $espondent had decided to terminate the employment of the#he $espondent had decided to terminate the employment of the

Petitioner+ Applicant on an incomplete investigation and withoutPetitioner+ Applicant on an incomplete investigation and without

considering hearing the Petitioner7s+Applicant case on the allegationsconsidering hearing the Petitioner7s+Applicant case on the allegations

contrary to the rules of natural 8ustice, company rules on disciplinecontrary to the rules of natural 8ustice, company rules on discipline

procedures, employment Act and the Constitution4procedures, employment Act and the Constitution4

0.0. #he $espondent arrived at the decision to summarily dismiss the#he $espondent arrived at the decision to summarily dismiss the





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:.:. #he $espondent in further contravention of Articles 05 and : of the#he $espondent in further contravention of Articles 05 and : of the



-54-54





%.%. ?nless conservatory orders are granted the Petitioner is highly li


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""."". t is in the interest of 8ustice and fairness that the Application fort is in the interest of 8ustice and fairness that the Application for

conservatory orders e allowed and Petition herein e urgentlyconservatory orders e allowed and Petition herein e urgently

admitted for hearing during this summer vacation.admitted for hearing during this summer vacation.

DATEDDATEDatat NAIROBINAIROBIthisBBBBday ofthisBBBBday of SEPTEMBERSEPTEMBER,, 20142014

..

****** COMPANY****** COMPANYADOCATES FOR THE PETITIONER+APPLICANTADOCATES FOR THE PETITIONER+APPLICANT


****** COMPANY****** COMPANYA2)CA#>A2)CA#>DE F?(2DG, F()CK A, "-DE F?(2DG, F()CK A, "-#H#HE())$E())$>A#>$D DG, FH)P $)A2>A#>$D DG, FH)P $)A2P.). F)X ""%/"I"P.). F)X ""%/"I"

NAIROBINAIROBI



MUMIASMUMIAS


19/71




ANDAND


ANDAND


ANDAND



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ANDAND



BYBYEMILY KADENYI OTIENO.

PETITIONER

~VERSUS~

MUMIAS SU&AR COMPANY MUMIAS SU&AR COMPANY

LIMITED..................................................................... RESPONDENTLIMITED..................................................................... RESPONDENT

SUPPORTIN& AFFIDAITSUPPORTIN& AFFIDAIT

,, EMILY OTIENO KADENYI,EMILY OTIENO KADENYI, a resident of umias and of P.) Fo@ Dumera resident of umias and of P.) Fo@ Dumer

""%/"I", Dairoi within the $epulic of Kenya do herey ma


21/71

Annexed hereto and marked EOK A is a copy of theAnnexed hereto and marked EOK A is a copy of the

Appointment letterAppointment letter

66 THATTHATon "on "stst

6uly -: was promoted to the position of (egal ervices6uly -: was promoted to the position of (egal ervicesanager therey eing given the responsiility of managing the (egalanager therey eing given the responsiility of managing the (egal

ervices Eunction of the Company as well as providing Companyervices Eunction of the Company as well as providing Company

ecretarial services to anagement. y


22/71

the time of my dismissal from employment, was also thethe time of my dismissal from employment, was also the

ecretary to the Foard Pro8ects Committee, Foard Einanceecretary to the Foard Pro8ects Committee, Foard Einance

and trategy Committee and Foard Cane 2evelopmentand trategy Committee and Foard Cane 2evelopment

CommitteeJ.CommitteeJ.

JJ 2eveloping and presenting to the Foard for approval all2eveloping and presenting to the Foard for approval all

Foard and Foard Committees tools including anuals,Foard and Foard Committees tools including anuals,

Charters, Codes, Procedures etcCharters, Codes, Procedures etccJcJ Preparing and circulating the agenda for the Foard, FoardPreparing and circulating the agenda for the Foard, Foard

Committees and anagement committee meetings.Committees and anagement committee meetings.dJdJ $ecording and circulation of minutes of the Foard, Foard$ecording and circulation of minutes of the Foard, Foard

Committees and anagement meetings and maintenanceCommittees and anagement meetings and maintenance

of inute Foo@change.

8J8J Preparing the Annual General eeting of shareholders,Preparing the Annual General eeting of shareholders,

ta


23/71

oJoJ anagement of statutory and regulatory complianceanagement of statutory and regulatory compliance

pJpJ Giving evidence in court on ehalf of the company whenGiving evidence in court on ehalf of the company when

re9uired.re9uired.

9J9J 2eveloping and implementing internal legal policies,2eveloping and implementing internal legal policies,

strategies and plans.strategies and plans.

rJrJ 2rawing up of legal documents, contracts and verify2rawing up of legal documents, contracts and verify

compliance with the re9uirements.compliance with the re9uirements.

sJsJ Participating in the negotiation of various agreements andParticipating in the negotiation of various agreements and

instruments for and on ehalf of the company.instruments for and on ehalf of the company.

tJtJ Protection of the company7s intellectual property includingProtection of the company7s intellectual property including

enforcement of the company7s intellectual property rights.enforcement of the company7s intellectual property rights.

uJuJ Proactively monitoring and identifying any statutory andProactively monitoring and identifying any statutory and

regulatory developments and aligning and advising theregulatory developments and aligning and advising the

various usiness units on such developments.various usiness units on such developments.

vJvJ As the compliance o*cer, coordinating all complianceAs the compliance o*cer, coordinating all compliance

related activities including implementing compliancerelated activities including implementing compliance

programs, underta@ecutive 2irector position.

Annexed hereto and marked EOK B is a copy of promotionAnnexed hereto and marked EOK B is a copy of promotion

letters from the Respondentletters from the Respondent

7676 THATTHATwhile in employment of the $espondent, held other positionswhile in employment of the $espondent, held other positions

including a #rust ecretary to umias ugar ta3 $etirement Fenetsincluding a #rust ecretary to umias ugar ta3 $etirement Fenets

cheme, umias ta3 Provident Eund, umias ugar >limu #rust,cheme, umias ta3 Provident Eund, umias ugar >limu #rust,

umias ugar Eoundation as well as a memer of the anagementumias ugar Eoundation as well as a memer of the anagement

Foard of Foo


24/71

8686 THATTHATy the time was unlawfully and unfairly summarily dismissedy the time was unlawfully and unfairly summarily dismissed

from the employment of the $espondent, my terms of employment hadfrom the employment of the $espondent, my terms of employment had

improved to the following4improved to the following4

aJaJ Fasic salary of Kshs 05/,'"". per monthFasic salary of Kshs 05/,'"". per month

JJ Car allowance of Kshs -:,. per monthCar allowance of Kshs -:,. per month

cJcJ Gas allowance of Kshs 0,0. per monthGas allowance of Kshs 0,0. per month

n addition to the aove nancial remuneration, was entitled to then addition to the aove nancial remuneration, was entitled to the

following enets4following enets4

aJaJ Eree and unlimited medical treatment for self, spouse andEree and unlimited medical treatment for self, spouse and

children elow -/ yearschildren elow -/ years

JJ emership GoldJ to AA$ medical servicesemership GoldJ to AA$ medical services

cJcJ >mployerMs contriution towards my pension at "N of>mployerMs contriution towards my pension at "N of

monthly asicmonthly asic

dJdJ Airtime e9uivalent to Kshs -, per month.Airtime e9uivalent to Kshs -, per month.

eJeJ (ife cover upto three years asic salary under the Group(ife cover upto three years asic salary under the Group

(ife Policy(ife Policy

fJfJ Eree house with water and electricityEree house with water and electricity

gJgJ )ne night guard.)ne night guard.

hJhJ ta3 car loan at :N interestta3 car loan at :N interest

iJiJ emership to the umias Clu and reciprocating clusemership to the umias Clu and reciprocating clus

Annexed hereto and marked EOK is a copy of the pay slipAnnexed hereto and marked EOK is a copy of the pay slip

/6/6THATTHAT for the si@teen years that served the $espondent in variousfor the si@teen years that served the $espondent in various

capacities, was never su8ected to any disciplinary proceeding nor didcapacities, was never su8ected to any disciplinary proceeding nor did

ever receive any reprimand, veral or written, regarding my wor


25/71

106106 THATTHAT on /on /thth arch -"0, the $espondent7s Foard held a pecialarch -"0, the $espondent7s Foard held a pecial

Foard meeting at the CompanyMs o*ces at #op PlaOa Dairoi in whichFoard meeting at the CompanyMs o*ces at #op PlaOa Dairoi in which

the then anaging 2irector and the Company ecretary werethe then anaging 2irector and the Company ecretary were

e@cluded. At the end of the meeting, three 2irectors reported to me ase@cluded. At the end of the meeting, three 2irectors reported to me as

the Company ecretary that the Foard had mandated them to 8ointlythe Company ecretary that the Foard had mandated them to 8ointly

inform me that the Foard had passed the following resolutions whichinform me that the Foard had passed the following resolutions which

needed to e recorded4needed to e recorded4

KaJKaJ #hat a forensic audit e underta


26/71

KfJKfJ #hat the Chairman of the Foard should sign a circular to#hat the Chairman of the Foard should sign a circular to

employees informing them of the appointment of r. )tolo asemployees informing them of the appointment of r. )tolo as

the acting anaging 2irector.the acting anaging 2irector.

Eollowing the aove resolutions, some other memers of sta3 in theEollowing the aove resolutions, some other memers of sta3 in the

Commercial 2epartment were also sent on leave pendingCommercial 2epartment were also sent on leave pending

investigations.investigations.

116116 THATTHAT following a selection process underta


27/71

1616 THATTHATon the afternoon of the same day, 'on the afternoon of the same day, ' thth6une -"0, following the6une -"0, following the

meeting, the Foard memers returned to the o*ce at #op PlaOa Dairoimeeting, the Foard memers returned to the o*ce at #op PlaOa Dairoi

to address a press conference with various media reporters. A signedto address a press conference with various media reporters. A signed

statement was then released to the memers of the press and whichstatement was then released to the memers of the press and which

had een signed y the Chairman of the Foard. #he signed statementhad een signed y the Chairman of the Foard. #he signed statement

indicated inter alia that indicated inter alia that !er"atim!er"atimJ4J4

aJaJ #he Foard has this morning received and considered some of the#he Foard has this morning received and considered some of the

867867of the forensic audit on sugar.of the forensic audit on sugar.

JJ KPG7sKPG7s 867867are that the transaction was not in the estare that the transaction was not in the est

interest of umias.interest of umias.

cJcJ >vidence indicates that anagement made misrepresentation on>vidence indicates that anagement made misrepresentation on

a numer of


28/71

1.61.6 THATTHATfrom the aove statement, it was clear that the Foard had madefrom the aove statement, it was clear that the Foard had made

a prior decision to terminate services of particular employees on thea prior decision to terminate services of particular employees on the

asis of the report of the auditors. Eurther y the time of releasing theasis of the report of the auditors. Eurther y the time of releasing the

statement, no communication had een made to me nor had eenstatement, no communication had een made to me nor had een

as


29/71

Dominations and Human $esources Committee was scheduled to meet.Dominations and Human $esources Committee was scheduled to meet.

As the ecretary of the Committee, nothing had een communicated toAs the ecretary of the Committee, nothing had een communicated to

me regarding the meeting. After some time in the o*ce, the memersme regarding the meeting. After some time in the o*ce, the memers

of the Foard Dominations and Human $esources Committee arrivedof the Foard Dominations and Human $esources Committee arrived

and went into the Foardroom for a meeting. After several hours, wasand went into the Foardroom for a meeting. After several hours, was

called into the meeting and informed that the Foard had decided tocalled into the meeting and informed that the Foard had decided to

give me a how Cause letter after the forensic audit revealed thatgive me a how Cause letter after the forensic audit revealed that

there was wrong doing on my part as regards the sugar that had eenthere was wrong doing on my part as regards the sugar that had een

imported from Kenana in udan. was then given a letter y theimported from Kenana in udan. was then given a letter y the

Chairman of the Committee with the following allegations4Chairman of the Committee with the following allegations4

'i('i( )hat * instr&cted +r$ ,a&l +&r#or the %irector of)hat * instr&cted +r$ ,a&l +&r#or the %irector of

ommercial Ser!ices to pro!ide less facts to theommercial Ser!ices to pro!ide less facts to the

Board re#ardin# transactions related to theBoard re#ardin# transactions related to the

importation of sar in an email dated -importation of sar in an email dated -stst.&ne /0-1$.&ne /0-1$'ii('ii( )hat * failed to pick o&t con2ictin# cla&ses in the)hat * failed to pick o&t con2ictin# cla&ses in the

3rst a#reement 4ith %antes ,eak 5td dated -3rst a#reement 4ith %antes ,eak 5td dated -stst

6e"r&ary /0-1$6e"r&ary /0-1$'iii('iii( )hat * pro!ided ins&7cient re!ie4 of the three)hat * pro!ided ins&7cient re!ie4 of the three

a#reements dated -a#reements dated -stst 6e"r&ary /0-18 /-6e"r&ary /0-18 /-stst A&stA&st

/0-1 and 10/0-1 and 10thth Octo"er /0-1 there"y exposin# theOcto"er /0-1 there"y exposin# the

ompany$ompany$

'i!('i!( )hat * 4as in!ol!ed in the ne#otiations of the third)hat * 4as in!ol!ed in the ne#otiations of the third

a#reement 4ith Kenana Sar ompany dated 10a#reement 4ith Kenana Sar ompany dated 10 thth

Octo"er /0-1 4itho&t the kno4led#e and a&thorityOcto"er /0-1 4itho&t the kno4led#e and a&thority

of the Board$of the Board$

'!('!( )hat * si#ned the letter of &ndertakin# dated -/)hat * si#ned the letter of &ndertakin# dated -/thth

9o!em"er /0-1 4hich incl&ded an indemnity in9o!em"er /0-1 4hich incl&ded an indemnity in

fa!o&r of %&"ai Bank 4itho&t the kno4led#e andfa!o&r of %&"ai Bank 4itho&t the kno4led#e and

a&thority of the Board$a&thority of the Board$


30/71

'!i('!i( )hat * si#ned the acco&nt openin# form relatin# to)hat * si#ned the acco&nt openin# form relatin# to

%&"ai Bank on -:%&"ai Bank on -:thth +ay /0-1 4itho&t Board+ay /0-1 4itho&t Board

appro!al$appro!al$

1/61/6 THATTHATthe how Cause letter went on to state that4the how Cause letter went on to state that4

)he a"o!e alle#ations re#ardin# yo&r cond&ct are)he a"o!e alle#ations re#ardin# yo&r cond&ct are

serio&s and point to serio&s omission on yo&r part as theserio&s and point to serio&s omission on yo&r part as the

le#al ad!isor of the ompany$ *f pro!ed8 it means yo& didle#al ad!isor of the ompany$ *f pro!ed8 it means yo& did

not adhere to the ompany;s ode of ond&ct and Ethics$not adhere to the ompany;s ode of ond&ct and Ethics$

ho&rs ho&rs

on receipt of this letter 4hy the Board sho&ld not takeon receipt of this letter 4hy the Board sho&ld not take

disciplinary action a#ainst yo& 4hich may incl&dedisciplinary action a#ainst yo& 4hich may incl&de

termination or dismissal$termination or dismissal$

*f yo&r response is not recei!ed 4ithin the stip&lated*f yo&r response is not recei!ed 4ithin the stip&lated

time8 it 4ill "e ass&med that yo& do not ha!e any defensetime8 it 4ill "e ass&med that yo& do not ha!e any defense

to these alle#ations and the Board 4ill proceed to preferto these alle#ations and the Board 4ill proceed to prefer

appropriate disciplinary action a#ainst yo&$ +ean4hileappropriate disciplinary action a#ainst yo&$ +ean4hile

yo& are placed &nder a maxim&m of t4o 4eeksyo& are placed &nder a maxim&m of t4o 4eeks

s&spension pendin# the determination of this letter$s&spension pendin# the determination of this letter$

Annexed hereto and marked EOK E is a copy of the sho4Annexed hereto and marked EOK E is a copy of the sho4

ca&se letterca&se letter

206206 THATTHATupon receipt of the aove letter, informed the Committee of theupon receipt of the aove letter, informed the Committee of the

fact that my o*cial laptop, ipad and emails had een disaled hence fact that my o*cial laptop, ipad and emails had een disaled hence

was totally unale to access any records on which would ase mywas totally unale to access any records on which would ase my

response within the stipulated period. further as


31/71

Cause (etter, it was not until at aout "- noon on "/Cause (etter, it was not until at aout "- noon on "/ thth6une -"0 that 6une -"0 that

was given access to the laptop. Fy this time, had very few hourswas given access to the laptop. Fy this time, had very few hours

remaining to the e@piry of the 0% hours in which was to respond.remaining to the e@piry of the 0% hours in which was to respond.

216216 THATTHATdespite the aove challenges, out of caution on the ris< of eingdespite the aove challenges, out of caution on the ris< of eing

presumed to e lac


32/71

Committee for more than twice to give further information which Committee for more than twice to give further information which

view as discriminative4view as discriminative4

236236 THATTHAT on the -5on the -5thth 6une -"0, the CompanyMs Chief ecurity )*cer6une -"0, the CompanyMs Chief ecurity )*cer

called me at =. a.m to inform me that he had a letter to deliver tocalled me at =. a.m to inform me that he had a letter to deliver to

me. 2ue to the timing of the call, informed him to state house numer 0/. #o my total

surprise, the letter dated -5surprise, the letter dated -5thth 6une -"0 was a letter of ummary6une -"0 was a letter of ummary

2ismissal from the employment of the Company with e3ect from -52ismissal from the employment of the Company with e3ect from -5 thth

6une -"0. #he letter did not give me any reasons for the summary6une -"0. #he letter did not give me any reasons for the summary

dismissal nor did it give me a right of appeal despite this eing a rightdismissal nor did it give me a right of appeal despite this eing a right

under the CompanyMs policies and natural 8ustice principles. tunder the CompanyMs policies and natural 8ustice principles. t was awas a

nal decision so to spea


33/71

onse=&ent &pon this decision8 please note that yo& 4illonse=&ent &pon this decision8 please note that yo& 4ill

"e paid yo&r salary earned &pCto and incl&din# the date"e paid yo&r salary earned &pCto and incl&din# the date

of dismissal$of dismissal$

Annexed hereto and marked EOK D is a copy of the s&mmaryAnnexed hereto and marked EOK D is a copy of the s&mmary

dismissal letterdismissal letter

2626 THATTHATon the afternoon of -5on the afternoon of -5 thth6une -"0, got to learn that a general6une -"0, got to learn that a general

sta3 meeting had een called at Foo


34/71

iiJiiJ )n ")n " stst6uly -"0, the Fusiness 2aily pulished an article at6uly -"0, the Fusiness 2aily pulished an article at

page % titled Qpage % titled QM5>


35/71

276276 THATTHAT)n the 0)n the 0thth6uly -"0, sumitted an appeal to the $espondent6uly -"0, sumitted an appeal to the $espondent

through the Foard Chairman and memers of the Foard Dominationsthrough the Foard Chairman and memers of the Foard Dominations

and Human $esources Committee with a re9uest to the Foard toand Human $esources Committee with a re9uest to the Foard to

reconsider its decision to summarily dismiss me as it had had veryreconsider its decision to summarily dismiss me as it had had very

devastating e3ects on my profession, personal integrity and futuredevastating e3ects on my profession, personal integrity and future

career prospects and earnings4career prospects and earnings4

Annexed hereto and marked EOK * is a tr&e copy of theAnnexed hereto and marked EOK * is a tr&e copy of the

,etitionerGs appealH,etitionerGs appealH

286286 #he respondent vide a letter declined to review the Petitioner7s case#he respondent vide a letter declined to review the Petitioner7s case

and reinstate her ac< into employmentand reinstate her ac< into employmentHH

Annexed hereto and marked EOK . is a tr&e copy of aAnnexed hereto and marked EOK . is a tr&e copy of a

response to the ,etitionerGs appealresponse to the ,etitionerGs appeal

2/62/6 THATTHATmy dismissal from employment y the $espondent was illegal,my dismissal from employment y the $espondent was illegal,

unfair and unprocedural and will stand pre8udiced if no conservatoryunfair and unprocedural and will stand pre8udiced if no conservatory

orders are granted as the $espondent will recruit another personorders are granted as the $espondent will recruit another person

sustantively to the position of Company ecretary+2irector of (egalsustantively to the position of Company ecretary+2irector of (egal

ervices4ervices4

306306 THATTHAT it is therefore in the interest of fairness and 8ustice that theit is therefore in the interest of fairness and 8ustice that the

Dotice of otion Application and tatement of Claim herein e grantedDotice of otion Application and tatement of Claim herein e granted

as prayed4as prayed4

316316 THATTHAT what have deposed to herein is true to the est of mywhat have deposed to herein is true to the est of my


36/71

EMILY OTIENO KADENYIEMILY OTIENO KADENYI RRIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII

RR DEPONENTDEPONENT

#his#his day ofday of -"0-"0 RR

RR

BEFORE MEBEFORE ME RR

RR

RR

COMMISSIONER FOR OATHSCOMMISSIONER FOR OATHS RR


****** COMPANY****** COMPANY

A2)CA#>A2)CA#>DE F?(2DG, F()CK A, "-#H E())$DE F?(2DG, F()CK A, "-#H E())$

>A#>$D DG, FH)P $)A2>A#>$D DG, FH)P $)A2

P.). F)X ""%/"I"P.). F)X ""%/"I"

NAIROBINAIROBI


MUMIAS SU&AR COMPANYMUMIAS SU&AR COMPANY

P.). F)X P$A#> FAGP.). F)X P$A#> FAG

MUMIASMUMIAS



IN THE MATTER OF:IN THE MATTER OF: ARTICLES 1, 2, 3, 10, 19, 20, 22, 23(1) (3),ARTICLES 1, 2, 3, 10, 19, 20, 22, 23(1) (3),2!(1),2!(1), 2!(4), 2!("), 2#, 3", 41(1), 41(2),2!(4), 2!("), 2#, 3", 41(1), 41(2),4!(1),4!(1),4!(2), 4#, "0(1),!3, 1"9, 1$0, 1$", 23$(4!(2), 4#, "0(1),!3, 1"9, 1$0, 1$", 23$(%%),), 2"92"9

2$0 2$0 OF THE CONSTITUTION OF KENYAOF THE CONSTITUTION OF KENYAANDAND


ANDAND


37/71


ANDAND


ANDAND


IN THE MATTER OF:IN THE MATTER OF: ALLE&ED CONTRAENTION OF FUNDAMENTALALLE&ED CONTRAENTION OF FUNDAMENTALRI&HTS AND FREEDOMS UNDER ARTICLES 2!,RI&HTS AND FREEDOMS UNDER ARTICLES 2!,2#, 41, 4!, 4# "0 OF THE CONSTITUTION OF2#, 41, 4!, 4# "0 OF THE CONSTITUTION OF

KENYA, 2010KENYA, 2010BYBY

EMILY KADENYI OTIENO.PETITIONER

~VERSUS~


PETITIONPETITION#)!#)! THE HI&H COURT OF KENYATHE HI&H COURT OF KENYA

y (ord, the humle petition ofy (ord, the humle petition of EMILY KADENYI OTIENOEMILY KADENYI OTIENOis as follows!Iis as follows!I

PARTIESPARTIES

".". #he Petitioner is a female adult of sound mind residing and wor1-C

00-00 9airo"i00-00 9airo"i44


38/71

-.-. #he $espondent is a Company duly registered as such under the#he $espondent is a Company duly registered as such under the

Companies Act Chapter 0%= (aws of Kenya and service upon it shall eCompanies Act Chapter 0%= (aws of Kenya and service upon it shall e

throughthroughIIIIII J ompany Ad!ocates8 9SS6 B&ildin#8 Block A8IIIIII J ompany Ad!ocates8 9SS6 B&ildin#8 Block A8

-/th 6loor8 Eastern Fin#8 Bishop Road ,$O$ Box -->1-C00-00-/th 6loor8 Eastern Fin#8 Bishop Road ,$O$ Box -->1-C00-00

9airo"i9airo"i44

/./. At all times material to this Petition, the Petitioner was initiallyAt all times material to this Petition, the Petitioner was initially

employed to the $espondent as the Company ecretary+2irector ofemployed to the $espondent as the Company ecretary+2irector of

(egal A3airs4(egal A3airs4

LE&AL FOUNDATION OF THE PETITIONLE&AL FOUNDATION OF THE PETITION

0.0. #he Petitioner eing a person and citiOen within the meaning of oth#he Petitioner eing a person and citiOen within the meaning of oth

A;=/7 12(1)


39/71

%.%. A;=/ 22 (1)A;=/ 22 (1)of theof the Constitution of en!aConstitution of en!a entitles the Petitioners andentitles the Petitioners and

indeed all other personsJ to move this Honourale Court whenever aindeed all other personsJ to move this Honourale Court whenever a

right or fundamental freedom in the Fill of rights is denied, violated,right or fundamental freedom in the Fill of rights is denied, violated,

infringed or threatened4infringed or threatened4

'.'. A;=/7 23A;=/7 23 andand 1$2(2) (


40/71

":.":. A;=/ !3A;=/ !3 of theof the Constitution of en!aConstitution of en!a en8oins all tate )*cers,en8oins all tate )*cers,

including the $espondents to e@ercise pulic authority as a pulic trustincluding the $espondents to e@ercise pulic authority as a pulic trust

in a manner that rings honour to the o*ce and promotes pulicin a manner that rings honour to the o*ce and promotes puliccondence in the integrity of the o*ce. ore so, Article 5/-J J of thecondence in the integrity of the o*ce. ore so, Article 5/-J J of the

Constitution en8oins the $espondents to e@ercise their mandateConstitution en8oins the $espondents to e@ercise their mandate

impartially and to ensure that their decisions are not in;uenced yimpartially and to ensure that their decisions are not in;uenced y

favoritism and other improper motives4favoritism and other improper motives4

"=."=. S=; 41S=; 41 of theof the 4$"lo!$ent Act, 20074$"lo!$ent Act, 2007 provides that theprovides that the

$espondent shall, efore summarily dismissing the Petitioner, hear and$espondent shall, efore summarily dismissing the Petitioner, hear and

consider any representations which the Petitioner may on the groundconsider any representations which the Petitioner may on the ground

of misconduct or poor performance, and the person, if any chosen yof misconduct or poor performance, and the person, if any chosen y

the Petitioner within ection 0""J mamployment Act, -5 provides that the

$espondent shall prove the reason or reasons for the termination and if$espondent shall prove the reason or reasons for the termination and if

it fails to do so, the termination shall e deemed to have een unfairit fails to do so, the termination shall e deemed to have een unfair

within the meaning of ection 0: of thewithin the meaning of ection 0: of the 4$"lo!$ent Act, 200794$"lo!$ent Act, 20079

"%."%. S=; 4"(1)S=; 4"(1) of theof the 4$"lo!$ent Act, 20074$"lo!$ent Act, 2007 provides that noprovides that no

employer shall terminate the employment of an employment unfairly4employer shall terminate the employment of an employment unfairly4

"'."'. S=; 4"(2)S=; 4"(2) of theof the 4$"lo!$ent Act, 20074$"lo!$ent Act, 2007 provides that theprovides that the

termination of employment will e unfair if the $espondent fails totermination of employment will e unfair if the $espondent fails toprove that the reason for the termination is valid4prove that the reason for the termination is valid4

-.-. n the case ofn the case of Falter O#al An&roFalter O#al An&ro Vs )eachers Ser!iceVs )eachers Ser!ice

ommission /0-1L eK5Rommission /0-1L eK5R thethe ndustrial Court held that for andustrial Court held that for a


41/71

termination of employment to pass the fairness test, there must etermination of employment to pass the fairness test, there must e

oth sustantive 8ustication and procedural fairness. ustantiveoth sustantive 8ustication and procedural fairness. ustantive

8ustication has to do with estalishment of a valid reason for the8ustication has to do with estalishment of a valid reason for the

termination while procedural fairness addresses the procedure adoptedtermination while procedural fairness addresses the procedure adopted

y the employer in e3ecting the termination.y the employer in e3ecting the termination.

THE FACTS ANALYSISTHE FACTS ANALYSIS

-".-". #he Petitioner was employed y the $espondent on#he Petitioner was employed y the $espondent on ##;;M


42/71

cJcJ Gas allowance of Kshs 0,0. per month4Gas allowance of Kshs 0,0. per month4

n addition to the aove terms, the Petitioner was entitled to then addition to the aove terms, the Petitioner was entitled to the

following enets4following enets4

aJaJ Eree and unlimited medical treatment for self, spouse andEree and unlimited medical treatment for self, spouse and

children elow -/ years4children elow -/ years4

JJ emership GoldJ to AA$ medical services4emership GoldJ to AA$ medical services4

cJcJ $espondent7s contriution towards Petitioner7s pension at$espondent7s contriution towards Petitioner7s pension at

"N of monthly asic salary4"N of monthly asic salary4

dJdJ Airtime e9uivalent to Kshs. -, per month4Airtime e9uivalent to Kshs. -, per month4

eJeJ (ife cover upto three years asic salary under the Group(ife cover upto three years asic salary under the Group

(ife Policy4(ife Policy4

fJfJ Eree house with water and electricity4Eree house with water and electricity4

gJgJ )ne night guard4)ne night guard4

hJhJ ta3 car loan at :N interest4ta3 car loan at :N interest4

iJiJ emership to the umias Clu and reciprocating clus.emership to the umias Clu and reciprocating clus.

Appendix contains tr&e copies of ,etitionerGs pay slips inAppendix contains tr&e copies of ,etitionerGs pay slips in

s&pport hereof$s&pport hereof$

-:.-:. Eor the si@teen years the Petitioner served the $espondent in theEor the si@teen years the Petitioner served the $espondent in the

various capacities aforementioned, she was never su8ected to anyvarious capacities aforementioned, she was never su8ected to any

disciplinary proceeding nor did she ever receive any reprimand, veraldisciplinary proceeding nor did she ever receive any reprimand, veral

or written, regarding her wor


43/71

reported to the Petitioner, as the Company ecretary, that the Foardreported to the Petitioner, as the Company ecretary, that the Foard

had mandated them to 8ointly inform the Petitioner that the Foard hadhad mandated them to 8ointly inform the Petitioner that the Foard had

passed the following resolutions which needed to e recorded4passed the following resolutions which needed to e recorded4

i.i. #hat a forensic audit e underta


44/71

vi.vi. #hat the Chairman of the Foard should sign a circular to#hat the Chairman of the Foard should sign a circular to

employees informing them of the appointment of r. )toloemployees informing them of the appointment of r. )tolo

as the acting anaging 2irector.as the acting anaging 2irector.

-5.-5. #he Petitioner avers that following the aove resolutions, some other#he Petitioner avers that following the aove resolutions, some other

memers of sta3 in the $espondent7s Commercial 2epartment werememers of sta3 in the $espondent7s Commercial 2epartment were

also sent on leave pending investigations.also sent on leave pending investigations.

-%.-%. Eollowing a selection process underta


45/71

/"./". )n the afternoon of the same day, ')n the afternoon of the same day, 'thth 6une -"0, following the6une -"0, following the

meeting, the Foard memers returned to the o*ce at #op PlaOa Dairoimeeting, the Foard memers returned to the o*ce at #op PlaOa Dairoi

to address a press conference with various media reporters invited. Ato address a press conference with various media reporters invited. A

signed statement was then read out and released to the memers ofsigned statement was then read out and released to the memers of

the press and which statement had een signed y the Chairman ofthe press and which statement had een signed y the Chairman of

the Foard. #he signed statement indicatedthe Foard. #he signed statement indicated inter aliainter aliathat that !er"atim!er"atimJ4J4

(a)(a) #he Foard has this morning received and considered some of#he Foard has this morning received and considered some of

the ndings of the forensic audit on sugar4the ndings of the forensic audit on sugar4

(%)(%) KPG7s ndings are that the transaction was not in the estKPG7s ndings are that the transaction was not in the est

interest of umias4interest of umias4

(c)(c) >vidence indicates that anagement made misrepresentation>vidence indicates that anagement made misrepresentation

on a numer of


46/71

Appendix % is a tr&e copy of the statement si#ned "y the hairmanAppendix % is a tr&e copy of the statement si#ned "y the hairman

of the RespondentGs Board in s&pport hereof$of the RespondentGs Board in s&pport hereof$

/-./-. Erom the aove statement, it was clear that the Foard had made aErom the aove statement, it was clear that the Foard had made a

prior decision to terminate services of particular employees on theprior decision to terminate services of particular employees on the

asis of the report of the auditors.asis of the report of the auditors.

//.//. #he Petitioner avers that y the time of releasing the statement, no#he Petitioner avers that y the time of releasing the statement, no

communication had een made to her in respect of the report nor hadcommunication had een made to her in respect of the report nor had

she een as


47/71

none of them had called the Petitioner to as< her to attend the allegednone of them had called the Petitioner to as< her to attend the alleged

meeting. #he Petitioner tried to reach several memers of the Foard tomeeting. #he Petitioner tried to reach several memers of the Foard to

get information on the purpose of the meeting ut none of them pic


48/71

0.0. #he Petitioner avers that she was then issued with the how Cause#he Petitioner avers that she was then issued with the how Cause

letter y the Chairman of the Committee and which set out theletter y the Chairman of the Committee and which set out the

following allegations against the Petitioner4following allegations against the Petitioner4

'i('i( )hat the ,etitioner instr&cted +r$ ,a&l +&r#or the)hat the ,etitioner instr&cted +r$ ,a&l +&r#or the

%irector of ommercial Ser!ices to pro!ide less%irector of ommercial Ser!ices to pro!ide less

facts to the Board re#ardin# transactions related tofacts to the Board re#ardin# transactions related to

the importation of sar throh an email dated -the importation of sar throh an email dated -stst

.&ne /0-1H.&ne /0-1H

'ii('ii( )hat the ,etitioner failed to pick o&t con2ictin#)hat the ,etitioner failed to pick o&t con2ictin#

cla&ses in the 3rst a#reement 4ith %antes ,eak 5tdcla&ses in the 3rst a#reement 4ith %antes ,eak 5td

dated -st 6e"r&ary /0-1Hdated -st 6e"r&ary /0-1H

'iii('iii( )hat the ,etitioner pro!ided ins&7cient re!ie4 of)hat the ,etitioner pro!ided ins&7cient re!ie4 of

the three a#reements dated -the three a#reements dated -stst6e"r&ary /0-18 /-6e"r&ary /0-18 /-stst

A&st /0-1 and 10A&st /0-1 and 10thth Octo"er /0-1 there"yOcto"er /0-1 there"y

exposin# the ompanyHexposin# the ompanyH

'i!('i!( )hat the ,etitioner 4as in!ol!ed in the ne#otiations)hat the ,etitioner 4as in!ol!ed in the ne#otiations

of the third a#reement 4ith Kenana Sar ompanyof the third a#reement 4ith Kenana Sar ompany

dated 10th Octo"er /0-1 4itho&t the kno4led#edated 10th Octo"er /0-1 4itho&t the kno4led#e

and a&thority of the BoardHand a&thority of the BoardH

'!('!( )hat the ,etitioner si#ned the letter of &ndertakin#)hat the ,etitioner si#ned the letter of &ndertakin#

dated -/dated -/thth 9o!em"er /0-1 4hich incl&ded an9o!em"er /0-1 4hich incl&ded an

indemnity in fa!o&r of %&"ai Bank 4itho&t theindemnity in fa!o&r of %&"ai Bank 4itho&t the

kno4led#e and a&thority of the BoardHkno4led#e and a&thority of the BoardH

'!i('!i( )hat the ,etitioner si#ned the acco&nt openin# form)hat the ,etitioner si#ned the acco&nt openin# form

relatin# to %&"ai Bank on -:th +ay /0-1 4itho&trelatin# to %&"ai Bank on -:th +ay /0-1 4itho&t

Board appro!al$Board appro!al$


49/71

0".0". #he how Cause letter went on to state that4#he how Cause letter went on to state that4

)he a"o!e alle#ations re#ardin# yo&r cond&ct are)he a"o!e alle#ations re#ardin# yo&r cond&ct are

serio&s and point to serio&s omission on yo&r part as theserio&s and point to serio&s omission on yo&r part as the

le#al ad!isor of the ompany$ *f pro!ed8 it means yo& didle#al ad!isor of the ompany$ *f pro!ed8 it means yo& did

not adhere to the ompany;s ode of ond&ct and Ethics$not adhere to the ompany;s ode of ond&ct and Ethics$

ho&rs ho&rs

on receipt of this letter 4hy the Board sho&ld not takeon receipt of this letter 4hy the Board sho&ld not take

disciplinary action a#ainst yo& 4hich may incl&dedisciplinary action a#ainst yo& 4hich may incl&de

termination or dismissal$ *f yo&r response is not recei!edtermination or dismissal$ *f yo&r response is not recei!ed

4ithin the stip&lated time8 it 4ill "e ass&med that yo& do4ithin the stip&lated time8 it 4ill "e ass&med that yo& do

not ha!e any defense to these alle#ations and the Boardnot ha!e any defense to these alle#ations and the Board

4ill proceed to prefer appropriate disciplinary action4ill proceed to prefer appropriate disciplinary action

a#ainst yo&$ +ean4hile yo& are on placed &nder aa#ainst yo&$ +ean4hile yo& are on placed &nder a

maxim&m of t4o 4eeks s&spension pendin# themaxim&m of t4o 4eeks s&spension pendin# the

determination of this letter$determination of this letter$

Appendix E is a tr&e copy of the Sho4 a&se letter dated -0Appendix E is a tr&e copy of the Sho4 a&se letter dated -0thth

.&ne /0-:.&ne /0-:

0-.0-. ?pon receipt of the how Cause letter, the Petitioner informed the?pon receipt of the how Cause letter, the Petitioner informed the

Committee of the fact that her o*cialCommittee of the fact that her o*cial laptop, ipad and emails hadlaptop, ipad and emails had

een disaled hence she was totally unale to access anyeen disaled hence she was totally unale to access any records onrecords on

which she would ase her response within the stipulated period. hewhich she would ase her response within the stipulated period. he

further as


50/71

-"0 that the Petitioner was granted access to her laptop. Fy this time,-"0 that the Petitioner was granted access to her laptop. Fy this time,

the Petitioner had very few hours remaining to the e@piry of the 0%the Petitioner had very few hours remaining to the e@piry of the 0%

hours deadline within which she was to respond.hours deadline within which she was to respond.

00.00. 2espite the aove challenges, out of aundant caution on the ris< of2espite the aove challenges, out of aundant caution on the ris< of

eing presumed to e lac


51/71

05.05. #he memers of the Foard Dominations and Human $esources#he memers of the Foard Dominations and Human $esources

Committee were in the o*ce and after consultations amongstCommittee were in the o*ce and after consultations amongst

themselves, the Chairman of the Committee informed the Petitionerthemselves, the Chairman of the Committee informed the Petitioner

that she was not re9uired to provide any further information and thatthat she was not re9uired to provide any further information and that

she should go away and await the feedac< from the Committee. #heshe should go away and await the feedac< from the Committee. #he

Petitioner later learnt that some of these sta3 memers furtherPetitioner later learnt that some of these sta3 memers further

appeared efore the same Committee on more than two occasionsappeared efore the same Committee on more than two occasions

later to give further information.later to give further information.

0%.0%. )n the -5)n the -5thth6une -"0, the $espondent7s Chief ecurity )*cer called6une -"0, the $espondent7s Chief ecurity )*cer called

the Petitioner at =. a.m to inform her that he had a letter to deliverthe Petitioner at =. a.m to inform her that he had a letter to deliver

to her. 2ue to the timing of the call, the Petitioner informed him toto her. 2ue to the timing of the call, the Petitioner informed him to

statePetitioner7s o*cial residence at the $espondent7s anagerial >state

house numer 0/.house numer 0/.

0'.0'. #o the Petitioner7s total surprise, the letter dated -5#o the Petitioner7s total surprise, the letter dated -5;;6une -"0 was a6une -"0 was a

ummary 2ismissal from the employment of the Company with e3ectummary 2ismissal from the employment of the Company with e3ect

from -5from -5thth 6une -"0. #he letter did not give any reasons for the6une -"0. #he letter did not give any reasons for the

summary dismissal nor did it give the Petitioner a right of appealsummary dismissal nor did it give the Petitioner a right of appeal

despite this eing a right under the $espondent CompanyMs policiesdespite this eing a right under the $espondent CompanyMs policies

and natural 8ustice principles. t was a nal decision so to spea


52/71

to the Sho4 ca&se letter iss&ed to yo& on -0th .&ne /0-:to the Sho4 ca&se letter iss&ed to yo& on -0th .&ne /0-:

and the s&"se=&ent sessions yo& ha!e had 4ith theand the s&"se=&ent sessions yo& ha!e had 4ith the

Board;s 9omination and ?&man Reso&rces ommittee$Board;s 9omination and ?&man Reso&rces ommittee$

6ollo4in# deli"erations on yo&r cond&ct relatin# to the6ollo4in# deli"erations on yo&r cond&ct relatin# to the

3ndin#s in the @&st concl&ded forensic in!esti#ation8 *3ndin#s in the @&st concl&ded forensic in!esti#ation8 *

4ish to notify yo& of the Board;s decision to s&mmarily4ish to notify yo& of the Board;s decision to s&mmarily

dismiss yo& from employment 4ith +&mias Sardismiss yo& from employment 4ith +&mias Sar

ompany8 eecti!e /ompany8 eecti!e /thth.&ne /0-:$.&ne /0-:$

onse=&ent &pon this decision8 please note that yo& 4illonse=&ent &pon this decision8 please note that yo& 4ill

"e paid yo&r salary earned &pCto and incl&din# the date"e paid yo&r salary earned &pCto and incl&din# the date

of dismissal$of dismissal$

Appendix D is a tr&e copy of the S&mmary dismissal letterAppendix D is a tr&e copy of the S&mmary dismissal letter

dated /dated /thth.&ne /0-:.&ne /0-:

:.:. )n the afternoon of -5)n the afternoon of -5thth6une -"0, the Petitioner got to learn that a6une -"0, the Petitioner got to learn that a

general sta3 meeting had een called at Foo


53/71

deals which had caused the company huge losses. ome of the articlesdeals which had caused the company huge losses. ome of the articles

included4included4

KiJKiJ )n ")n " stst6uly -"0, the tandard newspaper pulished an article at6uly -"0, the tandard newspaper pulished an article at

page -: titledpage -: titled ?M5>


54/71

regarding any involvement in sugar importation as alleged or any otherregarding any involvement in sugar importation as alleged or any other

shady deal as 9uoted in the papers. #he pulications were aimed atshady deal as 9uoted in the papers. #he pulications were aimed at

portraying the Petitioner in ad light and invarialy, was damaging toportraying the Petitioner in ad light and invarialy, was damaging to

her reputation especially at a time when the country in general and theher reputation especially at a time when the country in general and the

sugarcane farmers are reeling under the e3ects of illegal sugarsugarcane farmers are reeling under the e3ects of illegal sugar

imports. #he pulications displayed the mischief ehind the Petitioner7simports. #he pulications displayed the mischief ehind the Petitioner7s

summary dismissal from the $espondent.summary dismissal from the $espondent.

:/.:/. #he words as widely pulished, e@pressly and+or y way of innuendo,#he words as widely pulished, e@pressly and+or y way of innuendo,

are, in their natural and ordinary meaning, defamatory of the Petitionerare, in their natural and ordinary meaning, defamatory of the Petitioner

and y the said pulished words, the $espondent meant and wereand y the said pulished words, the $espondent meant and were

understood to mean!understood to mean!

#hat the Petitioner is of corrupt nature and character4#hat the Petitioner is of corrupt nature and character4

#hat the Petitioner is a criminal4#hat the Petitioner is a criminal4

#hat the Petitioner has no respect for authority4#hat the Petitioner has no respect for authority4

#hat the#hat thePetitioner has een involved in several shoddy dealsPetitioner has een involved in several shoddy deals

that caused the $espondent "." Fillion4that caused the $espondent "." Fillion4 #hat the Petitioner does not respect rules and regulations4#hat the Petitioner does not respect rules and regulations4

#hat the Petitioner is a scheming conspirator4#hat the Petitioner is a scheming conspirator4

#hat the Petitioner is rapacious4#hat the Petitioner is rapacious4

#hat the Petitioner is a predator4#hat the Petitioner is a predator4

#hat the Petitioner engages in unethical usiness practices4#hat the Petitioner engages in unethical usiness practices4

#he Petitioner is guilty of professional misconduct4#he Petitioner is guilty of professional misconduct4

#he Petitioner has ac9uired wealth wrongfully, illegally and#he Petitioner has ac9uired wealth wrongfully, illegally and

through corrupt meansthrough corrupt means

#he Petitioner cannot e entrusted with any private, corporate or#he Petitioner cannot e entrusted with any private, corporate or

pulic o*ce.pulic o*ce.

:0.:0. )n the 0)n the 0thth 6uly -"0, the Petitioner sumitted an appeal to the6uly -"0, the Petitioner sumitted an appeal to the

$espondent through the Foard Chairman and memers of the Foard$espondent through the Foard Chairman and memers of the Foard

Dominations and Human $esources Committee with a re9uest to theDominations and Human $esources Committee with a re9uest to the

Foard to reconsider its decision to summarily dismiss her as it had hadFoard to reconsider its decision to summarily dismiss her as it had had


55/71

very devastating e3ects on the Petitioner7s profession, personalvery devastating e3ects on the Petitioner7s profession, personal

integrity, future career prospects and earnings4integrity, future career prospects and earnings4

Appendix * is a tr&e copy of the ,etitionerGs Appeal dated :Appendix * is a tr&e copy of the ,etitionerGs Appeal dated : thth

.&ly /0-:$.&ly /0-:$

::.::. #he $espondent vide a letter dated -5#he $espondent vide a letter dated -5thth August -"0 declined toAugust -"0 declined to

review the Petitioner7s case and reinstate her ac< into employment4review the Petitioner7s case and reinstate her ac< into employment4

Appendix . is a tr&e copy of the letter in response to theAppendix . is a tr&e copy of the letter in response to the

,etitionerGs appeal in s&pport hereof$,etitionerGs appeal in s&pport hereof$

:=.:=. #he Petitioner therefore avers and sumits that in the circumstances#he Petitioner therefore avers and sumits that in the circumstances

her dismissal was unfair, irregular and illegal and should e reversedher dismissal was unfair, irregular and illegal and should e reversed

for total lac< of procedural propriety and legality4for total lac< of procedural propriety and legality4

:5.:5. n spite of demand and notice of intention to sue, the $espondent hasn spite of demand and notice of intention to sue, the $espondent has

failed to ta


56/71

KJKJ An )rder that the Petitioner e ade9uately compensated y theAn )rder that the Petitioner e ade9uately compensated y the

$espondent for time lost out of employment4$espondent for time lost out of employment4

KcJKcJ n the Alternative and without any pre8udice to the foregoing, then the Alternative and without any pre8udice to the foregoing, the

$espondent e ordered to fully compensate the Petitioner for unfair,$espondent e ordered to fully compensate the Petitioner for unfair,

unlawful and wrongful termination of the employment services ofunlawful and wrongful termination of the employment services of

the Petitioner with all attendant enets as taulated hereunder!Ithe Petitioner with all attendant enets as taulated hereunder!I

KiJKiJ - months salary in lieu of notice S 05/,'"".BBBB..- months salary in lieu of notice S 05/,'"".BBBB..

B.'05,%--.4B.'05,%--.4

KiiJKiiJ alary for the days wor


57/71

ADOCATES FOR THE PETITIONERADOCATES FOR THE PETITIONERDRA'N AND FILED BY:DRA'N AND FILED BY:

********* COMPANY********* COMPANYA2)CA#>A2)CA#>DE F?(2DG, F()CK A, "-DE F?(2DG, F()CK A, "-#H#HE())$E())$

NAIROBINAIROBI



MUMIASMUMIAS


58/71




ANDAND


ANDAND


ANDAND


ANDAND



BYBYEMILY KADENYI OTIENO.EMILY KADENYI OTIENO.

PETITIONERPETITIONER

~VERSUS~~VERSUS~


ERIFYIN& AFFIDAITERIFYIN& AFFIDAIT


59/71

,, EMILY KADENYI OTIENOEMILY KADENYI OTIENOof P. ). Fo@ ""%/"I" Dairoi do hereyof P. ). Fo@ ""%/"I" Dairoi do hereyma$D DG, FH)P $)A2>A#>$D DG, FH)P $)A2P.). F)X ""%/"I"P.). F)X ""%/"I"

NAIROBINAIROBI


60/71

TO BE SERED UPON:TO BE SERED UPON:MUMIAS SU&AR COMPANYMUMIAS SU&AR COMPANYP.). F)X P$A#> FAGP.). F)X P$A#> FAG

MUMIASMUMIAS




ANDAND

IN THE MATTER OF:IN THE MATTER OF: RULES 23 AND 24 OF THE CONSTITUTION OFRULES 23 AND 24 OF THE CONSTITUTION OFKENYA (PROTECTION OF RI&HTS ANDKENYA (PROTECTION

Documents

Petition on Unlawful Termination and Defamation