Can an employee be sacked without being given a genuine chance by way of a notice and a hearing?

When Kevin Isika Mule was HFC’s director of credit risk on a monthly salary of Sh1.16 million, he approached two of the senior-most directors at Housing Finance with information of undisclosed bad loans amounting to Sh4.3 billion. Shortly after that, he was fired. He successfully sued the employer and the High Court awarded him Sh8.9 million as compensation for unlawful termination. 

In reaching the final award, Justice Ongaya said he had considered Mr Isika’s whistle-blowing and how it turned against the former HFC employee.

“The court has considered the claimant’s unchallenged lamentations about the respondent’s non-compliance with statutory and regulatory provisions as reported by him to the respondent’s management, leading to his predicament, and which factor aggravates the respondent’s action to dismiss the claimant,” the judge ruled. Mr Isika had in the course of 2015 and 2016 revealed to HF Group managing director Frank Ireri and HFC managing director Sam Waweru that the latter risked losing Sh4.3 billion in bad loans, some of which had been issued irregularly.

On Friday June 17, 2016, Mr Isika was asked to meet his boss Mr Waweru at the Serena Hotel at 6pm. He naturally thought that the meeting would outline the next course of action in the wake of the revelations over the bad loans.

But at the meeting, Mr Waweru handed him a notice to show cause why he should not be fired for failing to apologise for grievances raised by debt management staff, failure to hire a valuer as instructed by Mr Ireri a year earlier and reporting to work late and leaving early without permission.

He was also accused of absenteeism. Mr Isika was also ordered to respond to the letter by the following Monday at 8.30am. The only problem was that he had already been locked out of the HFC system.

On deadline day, the banker again tried to complete his response and submit it but was still locked out of the system so he decided to go to the lender’s headquarters and deliver it in person.

His access card had also been deactivated and rumours were already flying that he was on interdiction. On arrival, Mr Isika found his office locked and it had been ransacked. He was met by two human resource department officers who had scheduled a disciplinary hearing for noon the same day. A new charge had also been introduced — failing to respond to the show cause letter within the prescribed timeline. After failing to convince the HFC board of his predicament, Mr Isika sued the lender and claimed he had been sacked on June 20, 2016, but had not been given a termination letter.

Mr Isika claims to have received the termination letter in December, half a year later, but HFC insisted that it sent the letter on June 21, 2016, via email and post.

In court, HFC accused Mr Isika of forum shopping. The mortgage lender argued that Mr Isika could not sue because he still had a pending appeal before the HFC board hence the suit was an abuse of the court process.

HFC said Mr Isika was sacked on June 21, 2016, after failing to respond to the show-cause letter and ignoring the disciplinary hearing.

Justice Ongaya held that HFC’s action could not be considered to be a constructive termination. He ruled that HFC acted unfairly by not giving Mr Isika a genuine chance to respond to his charges.

“The court finds that taking into account the magnitude of the allegations in the show-cause notice, the claimant was entitled to lament that the weekend allowed to reply was not sufficient.

“When Monday, June 20, 2016, came, the invitation for hearing was made and the claimant was not given ample time to prepare and to attend. There was no room provided in the invitation for the claimant to attend with a colleague of his choice as per section 41 of the Employment Act, 2007.

“The court holds that an employer should offer an employee a genuine chance by way of a notice and a hearing as per section 41 of the Act, failing which it cannot be presumed that the employee is culpable of the allegations for which no such genuine opportunity was provided. The termination was unfair in substance and procedure and the court finds accordingly,” Justice Ongaya held.

The judge held that Mr Isika was entitled to six months’ pay of Sh6.82 million and one month’s salary in lieu of notice (of termination).

Is a Child born by a widow more than nine months after the husband’s death entitled to inherit the deceased’s property?

Children born by a widow more than nine months after the husband’s death are not entitled to inherit a share of the deceased’s property, the High Court has ruled.

Justice Lucy Gitari has held that a child born posthumously to a widow not less than nine months upon the death of the husband ought to be excluded in succession.

Such a child, the judge said, cannot be regarded as having survived the deceased according to Section 29 of the Law of Succession Act, Cap 160.

The judge also stated that such children cannot be regarded as dependants of the deceased’s estate because the deceased had not taken them as his own and was not maintaining them before he passed away.

INHERITANCE DISPUTE

She made the decision while ruling on a succession dispute between a woman, Ms Milka Wanjiku, and her step-mother, Ms Rose Wangechi. The two were fighting over distribution of the estate of Wandimu Munyi who died in 1985. He was father to Ms Wanjiku and husband to Ms Wangechi.In the case, Ms Wangechi wanted three other children that she bore after the husband’s death be listed as beneficiaries of the deceased’s estate which included a 22-acre land in Mwea.

Also in contention was an undisclosed amount of money given by the National Irrigation Board for a three-acre land acquired for construction of Thiba dam.

Ms Wanjiku testified that the Wandimu two wives — her dead mother Agnes Muthoni (first wife) and Ms Wangechi (second wife).

The court heard that Wandimu had three children with the first wife and only one child with Ms Wangechi.

POSTHUMOUS CHILDREN

After his death, the second wife bore four other children — three daughters and one son — between 1988 and 2008, who she wanted to inherit Wandimu’s estate.

But the step-daughter confronted the court with the question of whether children born posthumously are entitled to inherit her father’s estate.

Ms Wangechi said she wanted all the eight children to share the land equally since they were born and lived on the same land.

But in her ruling, Justice Gitari ordered that the deceased’s estate be shared in five portions among the four children he had sired in his lifetime and Ms Wangechi, the widow.

“The (other) four children are excluded as beneficiaries. The distribution should be in accordance with the number of children. The widow is an additional unit,” said the judge adding that her decision on distribution of the estate is according to Section 40 of the Law of Succession Act.

Justice Gitari also ordered that the land be surveyed to ensure that each beneficiary’s portion has access to the water canal.

She also said the money for compensation from NIB shall be shared equally by the beneficiaries.

Equity bank bought student's song for a song

A university student who claims to have composed a popular song used by Equity Bank to promote its business has gone to court over a Sh10 million pledge, among other constitutional and fundamental reliefs.

Eric Obiero Nyadida, who was prosecuted at the instigation of the lender for forgery alongside his brother Geoffrey Nyadida Odongo then acquitted in October 2017 for lack of evidence, has urged the High Court to prohibit the bank from using the song to advertise its Wings to Fly education sponsorship project for bright but needy children.

LEGAL RIGHTS

Testifying before Justice Wilfrida Okwany, Mr Obiero said his rights were violated when he was locked up in a police cell with adults when he was 16.

He says he was denied his legal rights and access to his parents while in detention at Kileleshwa Police Station.

Mr Obiero, who is pursuing a Journalism course at a private university, told Justice Okwany over the last six years he has suffered mental anguish and violation of his property rights.


He said he was dragged through a criminal trial because he asked the bank to pay him Sh10 million as promised by senior officials of Equity Bank (Kenya) Limited and Equity Group Foundation (EGF) for using his song.

The petitioner says the lender has continued to use his work with no direct benefit going to him.

He is now asking the High Court to issue a conservatory order restraining EBL and EG) from using his piece of music in any of its advertisements on the internet, television, radio or any other media to popularise its EGF Wings to Fly project pending the determination of the suit.

Mr Obiero is also seeking costs of the case. Hearing continues.

Can settling an hospital bill count in inheritance?

A man’s bid to have a stake in his dead sister’s estate on account of having paid her medical bills has been thwarted by the High Court in Murang’a.

Mr Julius Kiruma failed to prove to the court his claim for half of his sister’s piece of land on grounds of the money he spent to settle her hospital bills.

He told the High Court that he contributed Sh214,000 towards the medical needs and upkeep for Hannah Wanjiru.

EXPENSES

Mr Kiruma even produced a list of the expenditure.

The court was told that Mr Kiruma also built a house for his sister and that the expenses were converted to two acres.

Mr Kiruma said he bought the four-acres jointly with his brother Mwangi Ruhohi and “I am therefore entitled to half the share”.

His claim was backed by two Wanjiru’s children – Gladys Waigumo and Mary Wanjiku – who said there was an agreement to the effect that their uncle’s expenditure would be returned with half of the land in question.

Ms Wanjiku said Wanjiru had called all her children and informed them about it.

To protect his interests, Mr Kiruma placed a restriction against the land in October 2016 because he also wanted to be an administrator of his sister’s estate.

However, a lawyer advised that one of Wanjiru’s daughter named Esther Wangari be instead appointed the administrator.

Ms Wangari filed the case seeking the removal of the restriction by Mr her uncle against developing or transferring the land.

She told the court that the restriction had no legal grounds and that the land had been sold to Mr Ruhohi by her mother.

The restriction by Mr Kiruma prevented the transfer of the property to Mr Ruhohi.

Ms Wangari said she had instructions from her mother to effect the transfer of the land to Mr Ruhohi because he had paid for it fully.

On seeking to obtain the consent of the Land Control Board to transfer the ownership of the plot, the process was halted because of the restriction, Ms Wangari said.

She admitted that Mr Ruhohi and Mr Kiruma are her uncles, but added that the latter should not have any interest in the land because Wangari had refunded his Sh400,000 before her death.

APPROPRIATE REGISTER

The court dismissed Mr Kiruma’s claim, saying there was no contract between him and Wangari on settling the medical bills.

“The defendant has not shown any evidence of a written contract as provided in law to support his claim of buying half the share of the land. He did not file any counterclaim in furtherance of his defence that he is a purchaser. His claim is unsupported,” the court said.

The law provides that the Lands Registrar can place a restriction against a plot in order to prevent fraud, improper dealings or for any other sufficient cause.

The registrar may place the restriction either with or without the application of any person interested in the land, lease or charge.

According to Section 76 of the Act, the restriction may be expressed to endure for a particular period of time, until the occurrence of a specific event or when another directive is made.

The registrar may prohibit or restrict all dealings or those that do not comply with specified conditions, and the restriction should be registered in the appropriate roll.

In the Murang’a family case, the High Court ruled that the restriction was unjustified as Mr Kiruma failed to prove his claim on his sister’s four-acre piece of land.

The High Court ordered the Lands Registrar to have it removed immediately.