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