Court upholds dismissal of Kwale clerk

The Supreme Court has dismissed an application seeking the reinstatement of the assembly clerk following his termination from office six months after he was employed.

Hamisi Dzila sued the Kwale County Assembly Service Board, Kwale County Assembly, Sammy Ruwa, Omar Kitengela, Antony Yama, Mwakaburi Hamisi, and Celine Lusweti, accusing them of bias, bad faith, and procedural irregularities in suspending him from office.

On February 28, 2020, Justice James Rika reinstated Dzila and ordered the respondents to pay his salary from the date of termination up to the ruling date and not to interfere with the discharge of his mandate.

Dzila said the disciplinary process did not comply with the safeguards provided under Sections 22 and 23 of the County Assembly Service Act (CAS Act) as well as Articles 232 and 236 of the Constitution on the principles of public service.

However, Justices Martha Koome, Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung'u, and William Ouko upheld the court of appeal verdict that the disciplinary process against Dzila was in accordance with the Constitution and the CAS Act.

The judges said it is clear that the disciplinary process under Section 23 of the CAS Act was never concluded and that Dzila was not entitled to be heard by the Labour court before his suspension.

The judges said that Dzila moved to court before the disciplinary hearing, alleging victimization and procedural impropriety on the part of the respondents.

“We find no material from which to conclude that the suspension, as undertaken by the respondents, and the undated notice to show cause violated the Constitution.

"The conclusion by the superior courts below that the appellant merely alleged victimization and bias, but failed to provide any evidence or attribute such conduct to any specific member of the board, is correct,” said Justice Koome.

Dzila was employed as a Clerk of the County Assembly effective August 1, 2019, on permanent and pensionable terms and was also the Secretary to the County Public Service Board.

Subsequent to his employment, Dzila claimed that he was not allowed to take and sign Board minutes and that after his appointment, he started receiving phone calls threatening him that there was a dossier against him from his previous employment, and despite asking for the dossier, it was not presented to him.

The county accused Dzila was not discharging his duties and responsibilities in accordance with the CAS Act.

He was accused of having caused the arrest of the County Assembly procurement officer by the Ethics and Anti-Corruption Commission (EACC) without referring the matter to the board.

The former Clerk was also accused of occasionally failing to implement the resolutions of the Board and that he was the source of ethnic divisions in the service.

Dzila was also accused that he refused to subject himself to the biometric register. 

Dzila reported to work on March 2, 2020, but was not allowed to enter the office as police had been deployed to prevent his entry.

Instead, he was issued with a notice of administrative suspension pending investigation of gross misconduct dated March 2, 2020

Dzila said he was unfairly targeted and victimized by the respondents after he declined to authorize payment to a contractor whose project was under investigation by the EACC.

He said that despite the ruling, he was later suspended on March 2, 2020, and issued with an undated notice to show cause after the Board’s meeting held on a Sunday, 1st March 2020.

On their part, the respondents denied victimizing Dzila and any procedural impropriety against him.

The County also denied involvement in his arrest, asserting that the police independently recommended charges against him and his secretary for giving false information.

They argued that the suspension was in accordance with Sections 22, 23, and 27 of the CAS Act and that the appellant was issued with a notice to show cause, to which he duly responded through his advocates on March 23, 2020.

The County said that although he was to appear before the Board, COVID-19 restrictions delayed proceedings, and the process was, as a result, suspended by a court order on April 27, 2020.

The board said it resolved not to proceed further until the ELRC matter was concluded.