Employment and Labour Relations Court has put Independent Electoral and Boundaries (IEBC) chief executive officer Marjan Hussein Marjan on the spot after finding that he unilaterally interdicted his deputy Ruth Kulundu.
While suspending the interdiction until the case Kulundu filed is heard and determined, Justice Linnet Ndolo said that Marjan breached IEBC’s human resource manual and acted as the judge, the jury and the executioner.
According to the judge, Kulundu’s charges were breach of confidentiality, insubordination and intimidation of staff.
However, in the interdiction letter issued to Kulundu, the issue of confidentiality was abandoned when she was accused of attending a meeting constituted by former commissioners Juliana Cherera who was also IEBC vice chairperson, Francis Wanderi and Justus Nyangaya and Irene Massit.
Justice Ndolo observed that although Marjan was central to the case, he never swore an affidavit to prove or rebut the allegations by Kulundu. At the same time, his then chair Wafula Chebukati did not file any reply to indicate whether the commission sat and agreed to interdict Kulundu.
Instead, the judge said, IEBC’s two employees replied to the case but did not highlight any issue of intimidation or insubordination.
According to justice Ndolo, Cherera swore an affidavit explaining what happened. The former Chebukati’s deputy explained to the court that when the presidential election petition was filed, the dissenting commissioners wrote to Chebukati asking that they meet in order to have the pool of lawyers allocated to them to reply to the case.
However, she said, Marjan and Chebukati did not respond or attend the meeting. Cherera stated that she is the one who directed Kulundu to attend the meeting and take notes.
Following the revelation by Cherera, the judge observed that Kulundu was a victim of the split in the commission pitting factions between Chebukati and Cherera.
She said that the law shielded Kulundu who was doing her duties as had been directed.
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While turning the gun on Marjan, justice Ndolo said when the commission split over the final tally, he ought to have been the neutral one in order for the secretariat to work even in the mucky situation.
Instead, the judge said, he too was sucked into it and took sides.
“ It is a matter of public notoriety that the court takes judicial notice that there was a major split with two factions of Chebukati three and Cherera four. This created a toxic working relationship for employees. It was expected that Marjan would have injected alkaline instead; it appears he was sucked into the split. The move was a manifestation for the split. Marjan Hussein was in violation of the IEBC HR policy. He was the prosecutor and executioner,” ruled Justice Ndolo.
In her case, Kulundu argued that she was issued the suspension letter signed by three out of seven commissioners. According to her, the decision ought to have been unanimously made by all the commissioners.
Her lawyer Hosea Manwa asserted that the commission’s decisions cannot be ratified by the minority.
“The first respondent (IEBC) has acted in excess of his powers to purport to interdict the applicant from her Employment without the approval of a majority of the commissioners, which actions are in excess of his legal mandate. Further, the 1st Respondent continues to act in a manner that completely flouts the provisions of the law on the rights of the applicant and continues to breach her rights to fair labour practices,” argued Manwa.
The court heard that Kulundu was employed by the IEBC in 2009 as Regional Election Co-coordinator (REC) in charge of the Nairobi region which then comprised Nairobi and Kajiado Counties.
During that period, her lawyer told the court, she created 17 constituency offices in Nairobi, five in Kajiado and a regional office at Nyayo house in Nairobi.
She was then transferred to the Lower eastern region in 2012 and then came back to Nairobi 2015. Again, she was transferred to Nyanza in 2017.
She narrated that on August 26, 2022, she attended a special plenary meeting held by the four commissioners. In the meeting, she said Marjan was absent. According to her, the meeting had been scheduled for the previous day, and Kulundu had received an invitation letter.
Kulundu told the court that whenever Marjan was absent, she was required to take minutes of meetings. This, she said, had happened several times when Marjan was absent.
According to Kulundu, she did not sign the minutes as she was waiting for Marjan's approval.
Her court documents read that following the meeting, Marjan issued a show-cause letter to her in which she was accused of misconduct.
The allegations were that she arranged for the commission’s meeting without her boss's approval. She was also accused of issuing threats and intimidating staff members.
“The petitioner responded to this Notice to show cause vide her letter dated September 9, 2022, in which she denied all the allegations and claimed that they were inaccurate and misleading. In her response, the petitioner indicated that the meeting for which she was being accused of arranging was in fact called for by the 7th to 10th respondents herein,” she said.
Kulundu stated that she has been put through untold suffering and victimization. According to her, IEBC intends to illegally kick her out.
“The allegations levelled against me are malicious, irregular and fatally defective and therefore lack feet to stand on. The instant disciplinary process is a mere formality and a window dressing exercise that is only aimed at unlawfully and irregularly dismissing me from my employment,” said Kulundu.