David vs Goliath: When justice system rules against the elite

Chief Justice Martha Koome during the launch of the Sexual and Gender-based Violence Court in Kisumu recently. [Collins Oduor, Standard]

The Judiciary has come under scrutiny as corruption continues to erode the integrity of Kenyan courts, prompting Chief Justice Martha Koome to acknowledge it as the most significant setback in the justice system.

Recent rulings, however, have offered a glimmer of hope, favouring ordinary Kenyans in their battles against influential figures.

In a landmark decision on May 25, 2023, the Employment and Labour Court ordered Bank of Africa Limited to pay former Branch Manager Robert Gibendi a substantial sum of Sh3.3 million for wrongful termination.

Presiding Judge David Nderitu also mandated the bank to request the Credit Reference Bureau (CRB) to remove Gibendi’s name from its listings.

Justice Nderitu asserted that the bank unjustly dismissed Gibendi without valid grounds on August 9, 2017.

Gibendi lost his job for alleged misconduct when he affected the transfer of Sh350,000 from a client’s account (Ponchoz agencies) to another (Dansal and Associates), without authority.

Nderitu insisted that if it was wrong for Gibendi to fill in the form, the bank should have dealt with the matter and sent him a warning instead of terminating his employment.

“Employees are human beings and prone to errors, and if employers were to discipline each perceived error, then all employees would fall short of glory, and it would result in very high employee turnover, low morale, and disruptions,” he said.

Nderitu faulted the bank for acting unprofessionally and arrogantly when it denied Gibendi procedural fairness in his termination process.

He noted that the bank suspended Gibendi on June 21, 2017, a day before Ponchoz raised its complaint, raising suspicion.

“The claimant’s reputation was tarnished, making it difficult to get employment from other banks,” he ruled.

Speaking to The Standard on Saturday, Gibendi said he was frustrated by the bank’s directors who claimed he had no chance of winning the case. He said that their arrogance discouraged him from seeking reinstatement.

Recent rulings have favoured ordinary Kenyans in their battles against influential figures. [iStockphoto]

“It was tough because I had no money to pay lawyers. If it was not for my lawyer friend, I would not have won the case. The bank officials were overconfident in the case,” he said.

In another significant ruling on January 25, a court in Nyeri awarded former police officer Dickson Kibet Sh3 million for unlawful and unfair dismissal.

Justice Onesmus Makau determined that Kibet’s rights to fair administrative action and fair labour practice had been violated.

Kibet was a police driver since March 26, 1994, earning a monthly pay of Sh42,750. On January 12, 2014, he caused a road traffic accident while driving a government vehicle.

He was interdicted on January 13, 2014, charged in Embu in 2015, found guilty, and convicted on September 7, 2017, for the offence of careless driving.

Although he paid a fine and believed he had served his sentence, Kibet was subsequently suspended and ultimately dismissed in 2019. Makau ruled that while the interdiction, suspension, and dismissal were technically fair, the process itself was unlawful.

Similarly, on May 10, Anne Chepkorir, the former Human Resources and Administration Manager of Nakuru Water and Sanitation Services Company Limited (Nawassco), was awarded a substantial sum of Sh4.1 million for wrongful dismissal.

Judge Hellen Wasilwa, presiding over the case, concluded that Chepkorir had been subjected to an unfair and unjust disciplinary process.

Shockingly, the evidence presented during the proceedings revealed that the same board that conducted the disciplinary process was also responsible for hearing Chepkorir’s appeal, raising questions of impartiality.

Chepkorir sued Nawassco on November 3, 2021. She said when she raised concerns over a gap and loopholes in a new fuel system, it did not sit well with the director.

“Since then, the director openly side-lined me and chose to work directly with my juniors. However, when the company incurred losses, he blamed me,” she said.

In response, the company said she was negligent, and instead of giving solutions, she merely gave excuses.

Moreover, on December 5, 2022, Nakuru governor Susan Kihika faced a legal defeat in a case challenging her appointment of County Executive Committee Members (CECs).

Despite proceeding with the swearing-in of the ten executives, Kihika was found guilty of contempt in a case filed by Nakuru surgeon Dr Magare Gikenyi. Although the governor has appealed the verdict, she is scheduled to be sentenced for contempt in July.