Sample Statement of Claim

REPUBLIC OF KENYA

IN THE EMPLOYMENT & LABOUR RELATIONS COURT

AT NAIROBI

CAUSE NO.                OF 2017

MARIA JOGINDER................................................................................CLAIMANT

-VERSUS-

 CLERK OF THE COUNTY ASSEMBLY OF WAKORA...…..………….1^ST RESPONDENT

 COUNTY ASSEMBLY OF WAKORA........................................................2^ND RESPONDENT

 THE HONOURABLE ATTORNEY GENERAL ……………………….... 3^RD RESPONDENT

MEMORANDUM OF CLAIM

ISSUES IN DISPUTE

a)      Unfair termination of employment under the Employment Act

b)      Violation of the right of Fair Administrative action

c)      Violation right to Fair Labour Practices

d)     Violation of the right to Fair Hearing

INTRODUCTION

a)      The Claimant is a female adult person working and residing within the Republic of Kenya. Her address of service for purposes of this suit shall be care of AKILI & CO. ADVOCATES, BRUCE HOUSE, 10^th FLOOR, P.O. BOX 2085-00100, and NAIROBI.

b)      The 1^st Respondent is Clerk of the County Assembly. This is an office established under section 13(1) of the County Government Act and it has its main office in Wakora County [Service of Summons upon it will be effected through the Claimant’s Advocates’ office]

c)      The 2^nd Respondent is the County Assembly of Wakora established under Article 177 of the Constitution of Kenya and having its main office in Wakora within the Republic of Kenya. [Service of Summons upon it will be effected through the Claimant’s Advocates’ office]

d)     The 3^rd Respondent is the honorable Attorney General established under Article 156 of the Constitution and the Office of the Attorney General Act and having its main office at Sheria House, Harambee Avenue P.O BOX 40112-00100 Nairobi Kenya [Service of Summons upon it will be effected through the Claimant’s Advocates’ office]

STATEMENT OF CLAIM

FACTS

a)      In June 2013, the claimant was duly elected and sworn in as Speaker of Wakora County Assembly as per the provisions of Article 177(1) (d) and section 7(1)(b) of the County Government Act to serve for a period of five years until the end of the term of the 1^st respondent.

b)      At all materials times from June 2013 to October 2015, the Claimant served as the speaker of the Wakora County assembly with no impediments.

c)      The Claimant avers that on or about 31^st October 2015 while returning from a benchmarking trip from Germany (annexure 7), she found her office locked. It was then that she was informed by the security guard that she had been impeached by a motion in her absentia. The motion was passed by the Wakora county assembly.

d)     The Claimant avers that a notice of intention to move a motion to impeach a speaker must be served to the Clerk of the County assembly. This notice should have been served to the Claimant. The Claimant avers that this did not occur as required by section 11(2) and 11(4) of the County Government Act.

e)      The Claimant states that on inquiry she was informed the motion to impeach her was passed because the majority leader of the county assembly had irregularly authorized the procurement of motor vehicle insurance for the county assembly.

f)       The Claimant avers that she was not party to the irregular authorization as she was not present during the authorization.

g)      The Claimant then filed a notice of motion in the High Court of Kenya seeking leave to file appropriate legal proceedings and the court granted her the leave which acted as a stay.

h)       The Claimant states that despite the stay orders, the county assembly went ahead and advertised the position of the speaker of Wakora County Assembly and replaced the Claimant.

i)        The Claimant avers that the action to replace her in flagrant disobedience of the stay order amounted to unfair dismissal which is unlawful, unfair and inhumane on the account that;

1.      No notice to show cause letter was served upon the Claimant demanding him to answer any charges

2.      The Claimant had done nothing wrong to warrant the unfair dismissal

3.      The Claimant was never summoned to answer to any charges

j)       All throughout the Claimants term of employment with the 2^nd Respondent, he had no disciplinary case, or prior warning, or any other disciplinary case against him because the Claimant strictly served in accordance with chapter six of the Constitution of Kenya.

GROUNDS

UNFAIR TERMINATION OF EMPLOYMENT

a.       The Claimants submit that the impeachment of the speaker was substantively and procedurally flawed.

b.      The Claimants submit that Sections 45(2) (a) & (b) of the Employment Act generally provides that no employer shall purport to terminate an employee’s employment unless there is valid reason to do so. Validity is considered in the context of the employee’s conduct, capacity and compatibility to the organization as well as the employer’s operational requirements

c.       The Claimant submits that there was no valid reason given to her as to why she was impeached. The Claimant did not do anything that was illegal and wrong or would otherwise warrant a substantive reason to be terminated. The 2^nd Respondent must prove under section 43(1) of the Employment Act that the termination was not unfair and based on valid reasons of misconduct.

d.      Furthermore, the Claimant submits that the proper procedure for termination of employment was not followed. The proper procedure as posited by section 35 and 41 of the Employment Act and Section 11 of the County Government Act is that there must be a notice of termination that is to be served on the speaker and thereafter a hearing must be set up where the speaker would be allowed to respond to the grounds that warrant dismissal.

e.       The Claimant submits that this procedure was not followed by the 2^nd Respondent. And as such this amounts to unfair dismissal. The burden is on the 2^nd respondent to prove that the dismissal was not unfair.

f)       Based on the claimant’s performance competence, long term of employment and the law, the claimant is entitled to the following terminal dues;

                                      i.            Salary for one month notice in lieu of notice

                                    ii.            20 month’s pay for compensation for loss of employment

                                  iii.            20 month’s pay for Airtime allowance

                                  iv.            Certificate of Service

The Claimants claim against the respondent is hereunder;

a.       Salary for one month in lieu of notice…………………………252,500/=

b.      Compensation for loss of employment………………………...5,050,000/=

c.       Airtime allowance……………………………………………..100,000/=

Total…………………………………………………………………...5,402,500/=

VIOLATION OF THE RIGHT TO FAIR ADMINISTRATIVE ACTION

a)      The Claimant submits that Article 47 of the Constitution of Kenya provides for the right to Fair Administrative Action. It posits that if a decision is to be taken by a body which is likely to affect someone adversely then it is prudent that such person be given reasons.

b)       Fair Administrative Action is further governed by the Fair Administrative Action Act, under section 4 it is required that notice be given, reasons as to why termination is occurring and an opportunity to be heard.

c)      The Claimant submits that none of these procedures were followed in the impeachment process of the speaker as such this was a violation of the Claimant’s right to fair administrative action by the 2^nd Respondent.

VIOLATION OF THE RIGHT TO FAIR LABOUR PRACTICES

a)      The Claimant avers that the Constitution of Kenya under Article 41 states that every worker in Kenya has the right to Fair Labour Practices. This includes the right to fair remuneration and reasonable working conditions.

b)       The Claimant avers that the unfair termination of her employment was not procedurally and substantively correct amounted to unfairness. This impeachment was unlawful as it did not accord the claimant her rights to natural justice.

c)      The Claimant submits that the impeachment was therefore a violation of her rights to fair labour practices by the 2^nd Respondent.

VIOLATION OF THE RIGHT TO FAIR HEARING

a)      The Claimant avers that they have a right to a fair hearing according to Article 50(1) of the Constitution of Kenya. It posits that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or another independent and impartial body.

b)      The Claimant avers that she was impeached in absentia. The Claimant was never given a reasonable chance to defend herself in a fair and public hearing. The claimant was never issued with any notice whatsoever.

c)      The Claimant therefore avers that her right to a fair hearing was breached by the 2^nd Respondent.

LAWS/POLICIES/PRINCIPLES/CONVENTIONS RELIED UPON

1.      The Constitution of Kenya 2010

2.      The Employment Act

3.      The Labour Relations Act

4.      The Fair Administrative Action Act

5.      The Civil Procedure Act

6.      The Employment and Labour Relations Court Act

7.      The Civil Procedure Rules 2010

8.      The Chief Justice Rules on Enforcement of Fundamental Rights and Freedoms

9.      The Employment Court Rules 2016

10.  International Covenant on Economic, Social and Cultural Rights

11.  Universal Declaration of Human Rights

12.  The International Labour Organization on  Termination of Employment Convention

13.  African Charter on Human and Peoples Rights

14.  Public Sector Remuneration and Benefits Policy, May 2015

SCHEDULE OF DOCUMENTS TO BE RELIED UPON

a.       Gazette Notice No. 28851 by the Salaries and Remuneration commission on Pay rates to the County assembly Speaker

b.      List of Witnesses

c.       Witness Statements

d.      Speaker’s Employment Contract

e.       Speaker’s Pay Slip

f.       Stay order of the High Court

g.      Air ticket to Germany by Maria Joginder

RELIEFS

REASONS-WHEREOF the Claimant prays for:-

a)      A declaration that the impeachment of the speaker was unfair termination therefore illegal and unlawful.

b)      A declaration that the Claimant’s right to fair labour practices has been breached

c)      A declaration that the Claimant’s right to fair administrative action has been breached

d)     A declaration that the Claimant’s right to a fair hearing has been breached

e)      Payment as calculated below

                                            i.            Salary for one month in lieu of notice…………………………252,500/=

                                          ii.            Compensation for loss of employment………………………...5,050,000/=

                                        iii.            Airtime allowance……………………………………………..100,000/=

Total………………………………………………………………..5,402,500=

f)       Costs of this suit.

g)      Any other order that the Honourable Court may deem fit to grant in the circumstances

Dated at Nairobi this………………………….day of……………………………….2017

AKILI & COMPANY

ADVOCATES FOR THE CLAIMANT

DRAWN & FILED BY:

AKILI & COMPANY

ADVOCATES

BRUCE HOUSE,

10^TH FLOOR, SUITE NO 3

MUINDI MBUINGU STREET

P.O. BOX 55110-00200

NAIROBI

TO BE SERVED UPON:

CLERK OF THE COUNTY ASSEMBLY OF WAKORA

P.O BOX 50255-00100

COUNTY HALL

MSITU ROAD

WAKORA COUNTY, KENYA

THE HONORABLE ATTORNEY GENERAL

SHERIA HOUSE

HARAMBEE AVENUE

P.O BOX 40112-00100

NAIROBI KENYA

COUNTY ASSEMBLY OF WAKORA

P.O BOX 50255-00100

COUNTY HALL

MSITU ROAD,

WAKORA COUNTY,

 KENYA

CIVIL LITIGATION-APPLICATION FOR APPOINTMENT OF A RECEIVER

FACTS

John and Jane are the co-owners of Salama Beach Hotel in Watamu; they are both directors. Jane has been living in Paris for 3years but she plans to relocate to Watamu in order to take an active role in managing the hotel. Differences have arisen as John is unable to account for substantial amounts of the hotel’s profits as well as the use of facilities: John has bought a state of the art chopper for himself and opened a new bank account in which he has directed all the company’s profits thereto despite being the only signatory. Following a heated argument; John has ordered his goons to block Jane from entering the hotel’s premises.

The matter is already in court but John intends to cash out and run given the backlog of cases. John was overheard saying that the business would rather go to the ground than share it with Jane who never helped run it; after all, court cases take forever.

You are acting for Jane and she has instructed you to seek relevant orders to secure the property and the profits.

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL CASE NO:   983      OF              2017

JANE MWEREVU MPOLE……………………………………….…….PLAINTIFF

VERSUS

JOHN MJANJA SONKO…………………………………………..…DEFENDANT

CERTIFICATE OF URGENCY

I, WAKILI SMART BIZ, an Advocate of the High Court of Kenya do hereby certify that this application is extremely urgent and should be heard and determined on a priority basis and that this honourable court does appoint a receiver for purposes of taking over the operations of the company Salama Beach Hotel Limited and preserving the assets, records, collecting its dues and do all that appertains to a receiver under the law pending the hearing and determination of the application herein. The defendant has excluded the plaintiff from the affairs of the company in circumstances which afford a reasonable probability that he intends to avoid appearance to this suit and/or to obstruct the execution of any Decree that may be passed against it.

Unless a receiver is appointed, the plaintiff will suffer irreparable loss and damage.

DATED at MOMBASA this ……………………. Day of …………………………… 2017

WAKILI SMART BIZ

ADVOCATES FOR PLAINTIFF/APPLICANT

DRAWN AND FILED BY

FIRM 16 & COMPANY ADVOCATES

JUBILEE INSURANCE BUILDING

SOUTH WING, SUITE 2, 3^RD FLOOR

P.O. BOX 40633 -80100

MOMBASA

  

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL CASE NO:     983    OF              2017

JANE MWEREVU MPOLE……….……………………………………….PLAINTIFF

VERSUS

JOHN MJANJA SONKO…………………………………………..…..…DEFENDANT

NOTICE OF MOTION

(Under Order 41, Rules 1, 2,3 and 4 of the Civil Procedure Rules, Section 1A, 1B, 3 and 3A of the Civil Procedure Act and all other Enabling Provisions of the Law)

TAKE NOTICE that this court will be moved on the……………day of………………….                          2017 at 8:30 O’clock in the forenoon or so soon thereafter, for the hearing of an application by the Counsel for the plaintiff/applicant FOR ORDERS:-

1.           THAT this application be heard ex-parte and as a matter of urgency and service be dispensed with in the first instance.

2.           THAT this Honourable Court do issue an injunction prohibiting the defendant whether by himself, servant, agents or any other persons working under his authority from transacting the affairs of Salama Beach Hotel Limited and from operating the Company’s Bank Accounts held at Barclays Bank Limited pending the hearing  and determination of this application.

3.           THAT this Honourable Court do issue an injunction prohibiting the defendant whether by himself, servant, agents or any other persons working under his authority from transacting the affairs of Salama Beach Hotel Limited and from operating the Company’s Bank Accounts held at Barclays Bank Limited pending the hearing and determination of this suit.

4.           THAT this honourable court does appoint an interim receiver for purposes of taking over the operations of the company Salama Beach Hotel Limited and preserving the assets, records, collecting its dues and do all that appertains to a receiver under the law pending the hearing and determination of the petition herein.

5.           THAT the costs of this application be awarded against the defendant

WHICH APPLICATION is premised on the following GROUNDS:-

1.                  THAT the plaintiff and defendant herein are the only directors and shareholders of Salama Beach Hotel Limited.

2.                  THAT differences have arisen between plaintiff and defendant as to the running of the affairs of the Company.

3.                  THAT the defendant has excluded the plaintiff from the affairs of the company.

4.                  THAT the intention of the defendant is in bad faith and calculated to defeat the rights and interests of plaintiff.

5.                  THAT the defendant is running the affairs of the Company in an oppressive manner and may proceed to plunder and/or hide the assets of the Company.

6.                  THAT unless the assets of the Company are preserved, the plaintiff will suffer irreparable loss and damage.

7.                  THAT for the foregoing reasons, there is need to appoint receiver for the preservation of the assets of the Company.

WHICH APPLICATION is supported by the annexed Affidavit JANE MWEREVU MPOLE and on such other and/or further grounds, reasons and arguments as may be adduced or advanced  at the hearing hereof.

DATED at Mombasa this                         day of                                                  2017

FIRM 16 & COMPANY ADVOCATES

ADVOCATES FOR PLAINTIFF/APPLICANT

DRAWN AND FILED BY

FIRM 16 & COMPANY ADVOCATES

JUBILEE INSURANCE BUILDING

SOUTH WING, SUITE 2, 3^RD FLOOR

P.O. BOX 40633 - 80100

MOMBASA

                       

           

TO BE SERVED UPON:

JOHN MJANJA SONKO

P.O BOX 646-80100

MOMBASA

     

NOTE

If any party served does not appear at the place and time above mentioned, such orders will be made and proceedings taken out as the Court will deem just and expedient.

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL CASE NO:     983    OF              2017

JANE MWEREVU MPOLE………………………………………….…….PLAINTIFF

VERSUS

JOHN MJANJA SONKO……………………………………………..…DEFENDANT

SUPPORTING AFFIDAVIT

I, JANE MWEREVU MPOLE currently residing at Watamu of Post Office Box Number  296, Watamu in the Republic of Kenya do hereby make oath and state as follows:-

1.                  THAT I am Plaintiff and one of the Directors of Salama Beach Hotel Ltd and hence competent to swear this affidavit.

2.                  THAT the defendant and I are Directors of Salama Beach Hotel, which company was incorporated on August 8th 2013. Annexed hereto and marked “JMM-1(a)” and “JMM-1(b)” is the CR-12 and the Certificate of Incorporation, respectively.

3.                  THAT until September, 2016, the defendant was managing the affairs of the Company while I was busy finishing my masters in Paris.

4.                  THAT differences then arose between the directors due to the following reasons:

a.       In 2016, after I came back into the country and decided to take on more responsibilities: I started auditing the accounts and noticed that there was a substantial amount of money that was missing and this was causing the hotel immense losses. On inquiry as to the whereabouts defendant became hostile and an argument ensued.

b.      Soon thereafter the defendant forcefully evicted me from the hotel premises and has hired goons that have since prevented my entry to the hotel premises. The defendant still continues to run the affairs of the Company to my exclusion.

5.                  THAT there is a high likelihood that the defendant will waste, plunder and/or hide the assets of the Company.

6.                  THAT further considering that there are applications pending in court for this dispute, the defendant has been spending money impulsively and preservation of the assets of the Company is the least he would care to do.

7.                  THAT the defendant has opened new accounts with Barclays Bank Limited, Malindi Branch wherein he is the only signatory and has directed all the income of the Company thereto; this of course is calculated to defeat my rights and interests in the company.

8.                  THAT in view of the foregoing reasons, it is only fair that the orders sought herein are granted in order to preserve the assets of the Company since the defendant is no longer banking in the Company’s accounts any monies obtained from the operations of the Company but into an account that I have no control over.

9.                  THAT I swear this affidavit in support my application herein.

10.              THAT what is deponed hereinabove is true to the best of my knowledge save as to the matters deponed to on information sources whereof have been disclosed and matters deponed to on belief whereupon the grounds have been given.

SWORN by the said JANE MWEREVU MPOLE

At Mombasa on the             day of                 2017   

                                                                                    …………………………………..     

                                                                                                DEPONENT 

BEFORE ME                                                                                   

                                   

COMMISSIONER FOR OATHS  

DRAWN AND FILED BY

FIRM 16 & COMPANY ADVOCATES

JUBILEE INSURANCE BUILDING

SOUTH WING, SUITE 2, 3^RD FLOOR

P.O. BOX 40633

MOMBASA