REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW CASE NO. OF 2011
IN THE MATTER OF AN APPLICATION BY MIGUNA MIGUNA FOR LEAVE FOR ORDERS OF CERTIORARI, PROHIBITION AND MANDAMUS
AND
IN THE MATTER OF THE SERVICE COMMISSIONS ACT, CAP. 185 OF THE LAWS OF KENYA AND ARTICLES 22, 23, 47, 50, 234 AND 236 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF MIGUNA MIGUNA
BETWEEN
MIGUNA MIGUNA……………………………………………………..APPLICANT
AND
THE PERMANENT SECRETARY, OFFICE
OF THE PRIME MINISTER…………………………………….1ST RESPONDENT
THE ATTORNEY-GENERAL…………………………………..2ND RESPONDENT
CERTIFICATE OF URGENCY
I, NELSON HAVI ADVOCATE who has the conduct of this matter on behalf of the Applicant do certify that the matter is extremely urgent requiring to be placed before the Honourable Duty Judge and be heard expeditiously during the current court vacation for the following reasons:-
1. The Applicant is a public officer of the rank of Permanent Secretary, duly appointed by the President of the Republic of Kenya and is entitled to a monthly salary, allowances and benefits.
2. The Public Service Regulations require that the Applicant may be suspended from public office only if convicted of a serious criminal offence or if there are pending proceedings for his dismissal, in which event he shall not be entitled to any salary.
3. The Public Service Regulations require that in the event of the Applicant’s interdiction, he be entitled to not less than half his salary, allowances and benefits pending a decision on the outcome of the investigations surrounding any such interdiction.
4. On the 4th day of August, 2011 the 1st and 2nd Respondents whilst communicating the Applicant’s purported suspension from public office, purported to suspend the Applicant’s salary, allowances and benefits as a result of which the same have been withdrawn.
5. The 1st Respondent failed to serve the Applicant with a warning letter detailing the particulars of the allegations and according the Applicant adequate opportunity to respond to the allegations, in violation of the Applicant’s legal and constitutional rights.
6. Instead of inviting the Applicant to return from vacation and issuing him with the suspension letter in a humane and dignified manner, the 1st Respondent released or leaked the suspension letter to the media more than twenty hours before he delivered the letter to the Applicant thereby grossly violating his rights.
7. The 1st and 2nd Respondents have tacitly or indirectly authorized or acquiesced to third parties’ making disparaging comments about the Applicant and purporting to give “reasons” for the suspension. This conduct aggravates the damages suffered by the Applicant.
8. The 1st Respondent’s purported suspension letter did not provide grounds known to law. In addition, the 1st Respondent failed to disclose specific particulars including dates, places, and identities of aggrieved third parties or the nature of “complaints,” if any, against the Applicant.
9. The 1st Respondent has failed to provide the Applicant with the opportunity to respond to the allegations.
10. The 1st and 2nd Respondents have also failed to disclose the nature and particulars of the investigative agency, such agency’s legal mandate, where and when such agency will conduct and conclude investigations; and/or how long the suspension will last. Consequently, the suspension is a nullity in law.
11. The 1st and 2nd Respondents’ action is unconstitutional, is in breach of statute, is illegal, is un-procedural, is unfair, is irrational and unreasonable and ought to be restrained by an order of stay pending the determination of these proceedings.
12. The Applicant has suffered and will continue suffering substantial irreparable loss if the 1st and 2nd Respondents’ illegal decision is not quashed and the 1st and 2nd Respondents prohibited from implementing or enforcing the illegal decision.
DATED at Nairobi this 10th day of August, 2011.
HAVI & COMPANY
ADVOCATES FOR THE APPLICANT
DRAWN & FILED BY:-
HAVI & COMPANY
ADVOCATES
1ST FLOOR, ROOM A8, OJIJO PLAZA
PLUMS LANE, OFF OJIJO ROAD
P.O. BOX 38422-00623
NAIROBI (OUR REF.: HA/MS/032/011)
TO BE SERVED UPON:-
1. THE PERMANENT SECRETRARY
OFFICE OF THE PRIME MINISTER
PRIME MINISTER’S BUILDING, 2ND FLOOR
HARAMBEE AVENUE
P.O. BOX 74434-00200
NAIROBI
2. THE ATTORNEY-GENERAL
STATE LAW OFFICE
SHERIA HOUSE
P.O. BOX 40112-00100
NAIROBI
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW CASE NO. OF 2011
IN THE MATTER OF AN APPLICATION BY MIGUNA MIGUNA FOR LEAVE FOR ORDERS OF CERTIORARI, PROHIBITION AND MANDAMUS
AND
IN THE MATTER OF THE SERVICE COMMISSIONS ACT, CAP. 185 OF THE LAWS OF KENYA AND ARTICLES 22, 23, 47, 50, 234 AND 236 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF MIGUNA MIGUNA
BETWEEN
MIGUNA MIGUNA……………………………………………………..APPLICANT
AND
THE PERMANENT SECRETARY, OFFICE
OF THE PRIME MINISTER…………………………………….1ST RESPONDENT
THE ATTORNEY-GENERAL…………………………………..2ND RESPONDENT
NOTICE OF MOTION
(Under Rule 3 of the High Court (Practice and Procedure) Rules made pursuant to section 10 of the Judicature Act, Cap. 8 of the laws of Kenya and all other enabling provisions of the law and Order 51 of the Civil Procedure Rules)
TAKE NOTICE THAT the Honourable Court shall be moved on the . day of 2011 at 9.00 O’clock in the forenoon or soon thereafter for the hearing of an application by counsel for the Applicant for orders THAT:-
1. Service of this application be dispensed with in the first instance.
2. The substantive Chamber Summons filed herewith be certified urgent and admitted for hearing during the current court vacation.
ON THE GROUNDS THAT:-
1. The substantive Chamber Summons seeks leave to commence judicial review proceedings against the 1st and 2nd Respondents’ decision made on the 4th day of August, 2011 purporting to suspend the Applicant, suspending the Applicant’s salary, allowances, and benefits and withdrawing the same.
2. It is important that the substantive Chamber Summons be heard during the current court vacation as the injury caused and threatened further injury resulting from the 1st and 2nd Respondents’ action has occurred and is bound to continue during the current court vacation.
WHICH APPLICATION is further supported by the annexed Affidavit of NELSON HAVI ADVOCATE and on such further or other grounds as may be adduced at the hearing hereof.
DATED at Nairobi this 10th day of August, 2011.
HAVI & COMPANY
ADVOCATES FOR THE APPLICANT
DRAWN & FILED BY:-
HAVI & COMPANY
ADVOCATES
1ST FLOOR, ROOM A8, OJIJO PLAZA
PLUMS LANE, OFF OJIJO ROAD
P.O. BOX 38422-00623
NAIROBI (OUR REF.: HA/MS/032/011)
TO BE SERVED UPON:-
1. THE PERMANENT SECRETRARY
OFFICE OF THE PRIME MINISTER
PRIME MINISTER’S BUILDING, 2ND FLOOR
HARAMBEE AVENUE
P.O. BOX 74434-00200
NAIROBI
2. THE ATTORNEY-GENERAL
STATE LAW OFFICE
SHERIA HOUSE
P.O. BOX 40112-00100
NAIROBI
“If any party served does not appear at the time and place above mentioned such orders will be made and proceedings taken as the court may think just and expedient”
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW CASE NO. OF 2011
IN THE MATTER OF AN APPLICATION BY MIGUNA MIGUNA FOR LEAVE FOR ORDERS OF CERTIORARI, PROHIBITION AND MANDAMUS
AND
IN THE MATTER OF THE SERVICE COMMISSIONS ACT, CAP. 185 OF THE LAWS OF KENYA AND ARTICLES 22, 23, 47, 50, 234 AND 236 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF MIGUNA MIGUNA
BETWEEN
MIGUNA MIGUNA……………………………………………………..APPLICANT
AND
THE PERMANENT SECRETARY, OFFICE
OF THE PRIME MINISTER…………………………………….1ST RESPONDENT
THE ATTORNEY-GENERAL…………………………………..2ND RESPONDENT
SUPPORITNG AFFIDAVIT
I, NELSON HAVI residing in Nairobi and of P.O. Box Number 38422-00623 Nairobi hereby solemnly swear and state as follows:-
1. I am an Advocate of the High Court of Kenya. I have the conduct of this matter on behalf of the Applicant and I am competent and authorised to swear this Affidavit.
2. The substantive Chamber Summons seeks leave to commence judicial review proceedings against the 1st and 2nd Respondents’ decision made on the 4th day of August, 2011 purporting to suspend the Applicant, suspending the Applicant’s salary, allowances and benefits and withdrawing the same.
3. It is important that the substantive Chamber Summons be heard during the current court vacation as the injury caused and threatened further injury resulting from the 1st and 2nd Respondents’ action has occurred and is bound to continue during the current court vacation.
4. I swear this Affidavit in support of the Applicant’s prayer that this application be heard during the current court vacation.
5. The matters set out herein are true to my knowledge save as to matters deponed to on information and belief, the sources and grounds whereof have been specified and set out hereinabove.
SWORN by the said NELSON HAVI )
At Nairobi this 10th day of August, 2011 )
BEFORE ME )
)
)
COMMISSIONER FOR OATHS )
DRAWN & FILED BY:-
HAVI & COMPANY
ADVOCATES
1ST FLOOR, ROOM A8, OJIJO PLAZA
PLUMS LANE, OFF OJIJO ROAD
P.O. BOX 38422-00623
NAIROBI (OUR REF.: HA/MS/032/011)
TO BE SERVED UPON:-
1. THE PERMANENT SECRETRARY
OFFICE OF THE PRIME MINISTER
PRIME MINISTER’S BUILDING, 2ND FLOOR
HARAMBEE AVENUE
P.O. BOX 74434-00200
NAIROBI
2. THE ATTORNEY-GENERAL
STATE LAW OFFICE
SHERIA HOUSE
P.O. BOX 40112-00100
NAIROBI
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW CASE NO. OF 2011
IN THE MATTER OF AN APPLICATION BY MIGUNA MIGUNA FOR LEAVE FOR ORDERS OF CERTIORARI, PROHIBITION AND MANDAMUS
AND
IN THE MATTER OF THE SERVICE COMMISSIONS ACT, CAP. 185 OF THE LAWS OF KENYA AND ARTICLES 22, 23, 47, 50, 234 AND 236 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF MIGUNA MIGUNA
BETWEEN
MIGUNA MIGUNA……………………………………………………..APPLICANT
AND
THE PERMANENT SECRETARY, OFFICE
OF THE PRIME MINISTER…………………………………….1ST RESPONDENT
THE ATTORNEY-GENERAL…………………………………..2ND RESPONDENT
CHAMBER SUMMONS
[Under Section 8(2) of the Law reform Act, Cap 26 of the Laws of Kenya and Order 53, rule 1 of the Civil Procedure Rules 2010 made under Cap. 21 of the Laws of Kenya]
EX-PARTE
LET ALL PARTIES CONCERNED attend the Honourable Judge in Chambers on the day of 2011, at 9.00 o’clock in the forenoon or so soon thereafter so as Counsel for the Applicant may be heard on an application for ORDERS THAT:-
1. This application be certified urgent and heard ex-parte.
3. The Applicant be granted leave to apply for an order of certiorari to remove into the High Court and quash the entire decision of the 1st and 2nd Respondents made on the 4th day of August, 2011 purporting to suspend the Applicant, suspending the Applicant’s salary, allowances and withdrawing benefits due to the Applicant.
4. The Applicant be granted leave to apply for an order of prohibition, prohibiting the 1st and 2nd Respondents from suspending the Applicant’s salary, allowances and from withdrawing benefits due to the Applicant.
5. The Applicant be granted leave to apply for an order of mandamus, directing and compelling the 1st and 2nd Respondents to pay the Applicant’s salary, allowances and restore benefits due to the Applicant.
6. The grant of leave do operate as stay of implementation or enforcement of the entire decision of the 1st and 2nd Respondents made on the 4th day of August, 2011 purporting to suspend the Applicant.
7. The grant of leave do operate as stay of implementation or enforcement of that part of the decision of the 1st and 2nd Respondents made on the 4th day of August, 2011 suspending the Applicant’s salary, allowances and withdrawing benefits due to the Applicant.
8. The costs of this application be provided for.
WHICH APPLICATION IS BASED ON THE GROUNDS THAT:-
1. The Applicant is a public officer of the rank of Permanent Secretary, duly appointed by the President of the Republic of Kenya and is entitled to a monthly salary, allowances and benefits.
2. The Public Service Regulations require that the Applicant may be suspended from public office only if convicted of a serious criminal offence or if there are pending proceedings for his dismissal, in which event he shall not be entitled to any salary.
3. The Public Service Regulations require that in the event of the Applicant’s interdiction, he be entitled to not less than half his salary, but his full allowances and benefits pending a decision on the outcome of the investigations surrounding any such interdiction.
4. On 4th day of August, 2011 the 1st and 2nd Respondents whilst communicating the Applicant’s purported suspension from public office, purported to suspend the Applicant’s salary, allowances and benefits as a result of which the same have been withdrawn.
5. Even if the suspension letter was to be an interdiction, the Applicant is entitled to not less than half his salary, and his full allowances and benefits pending a decision on the outcome of the investigations surrounding any such interdiction.
6. The 1st and 2nd Respondents’ action is unconstitutional, is in breach of statute, is illegal, is ultra vires, is un-procedural, is unfair, is irrational and unreasonable and ought to be restrained by an order of stay pending the determination of these proceedings.
7. The 1st and 2nd Respondents’ decision was made arbitrarily, without jurisdiction and without hearing the Applicant and is therefore illegal, null and void ab initio.
8. The Applicant has suffered and will continue suffering substantial irreparable loss if the 1st and 2nd Respondents’ illegal decision is not quashed and the 1st and 2nd Respondents prohibited from implementing or enforcing the illegal decision.
WHICH APPLICATION is further supported by the annexed Statutory Statement and the Verifying Affidavit thereto duly sworn by MIGUNA MIGUNA, the Applicant herein and on such other or further grounds as may be adduced at the hearing hereof.
DATED at Nairobi this 10th day of August, 2011.
HAVI & COMPANY
ADVOCATES FOR THE APPLICANT
DRAWN & FILED BY:-
HAVI & COMPANY
ADVOCATES
1ST FLOOR, ROOM A8, OJIJO PLAZA
P.O. BOX 38422-00623
NAIROBI (OUR REF.: HA/MS/032/011)
TO BE SERVED UPON:-
1. THE PERMANENT SECRETRARY
OFFICE OF THE PRIME MINISTER
PRIME MINISTER’S BUILDING, 2ND FLOOR
HARAMBEE AVENUE
P.O. BOX 74434-00200
NAIROBI
2. THE ATTORNEY-GENERAL
STATE LAW OFFICE
SHERIA HOUSE
P.O. BOX 40112-00100
NAIROBI
“If any party served does not appear at the time and place above mentioned such orders will be made and proceedings taken as the court may think just and expedient”
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW CASE NO. OF 2011
IN THE MATTER OF AN APPLICATION BY MIGUNA MIGUNA FOR LEAVE FOR ORDERS OF CERTIORARI, PROHIBITION AND MANDAMUS
AND
IN THE MATTER OF THE SERVICE COMMISSIONS ACT, CAP. 185 OF THE LAWS OF KENYA AND ARTICLES 22, 23, 47, 50, 234 AND 236 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF MIGUNA MIGUNA
BETWEEN
MIGUNA MIGUNA……………………………………………………..APPLICANT
AND
THE PERMANENT SECRETARY, OFFICE
OF THE PRIME MINISTER…………………………………….1ST RESPONDENT
THE ATTORNEY-GENERAL…………………………………..2ND RESPONDENT
STATUTORY STATEMENT
(Pursuant to Order 53, rule 1 (2) of the Civil Procedure Rules 2010)
1. NAMES AND DESCRIPTION OF THE PARTIES
1. The Applicant is an adult male of sound mind residing and working for gain in Nairobi in the Republic of Kenya and is a public officer of the rank of Permanent Secretary, duly appointed by the President of the Republic of Kenya. The Applicant’s registered office and principal place of business is in Nairobi within the Republic of Kenya whilst his address for service for the purposes of this suit is care of Havi & Company Advocates, 1st Floor, Room A8, Ojijo Plaza, Plums Lane, Off Ojijo Road, P.O. Box 38422 – 00623 Nairobi.
2. The 1st Respondent is an adult male of sound mind residing and working for gain in Nairobi in the Republic of Kenya and is a public officer of the rank of Permanent Secretary, duly appointed by the President of the Republic of Kenya and currently posted to the Office of the Prime Minister. His physical and postal address is Prime Minister’s Building, 2nd Floor, Harambee Avenue, P. O. Box 74434-00200 Nairobi.
3. The 2nd Respondent is the principal legal adviser of the Government of the Republic of Kenya under Article 156 of the current Constitution. His physical and postal address is State Law Office, Sheria House P.O. Box 40112-00100 Nairobi.
2. RELIEF SOUGHT
1. An order of certiorari to remove into the High Court and quash the entire decision of the 1st and 2nd Respondents made on the 4th day of August, 2011 purporting to suspend the Applicant, suspending the Applicant’s salary, allowances and withdrawing benefits due to the Applicant.
2. An order of prohibition, prohibiting the 1st and 2nd Respondents from suspending the Applicant’s salary, allowances and from withdrawing benefits due to the Applicant.
3. An order of mandamus, directing and compelling the 1st and 2nd Respondents to pay the Applicant’s salary, allowances and restore benefits due to the Applicant.
4. An order that the grant of leave do operate as stay of implementation or enforcement of the entire decision of the 1st and 2nd Respondents made on the 4th day of August, 2011 purporting to suspend the Applicant.
5. The grant of leave do operate as stay of implementation or enforcement of that part of the decision of the 1st and 2nd Respondents made on the 4th day of August, 2011 suspending the Applicant’s salary, allowances and withdrawing benefits due to the Applicant.
6. The costs of this application on a higher indemnity scale be provided for.
3. THE GROUNDS UPON WHICH RELIEF IS SOUGHT
1. The Applicant is a public officer of the rank of Permanent Secretary, duly appointed by the President of the Republic of Kenya and is entitled to a monthly salary, allowances and benefits.
2. Regulation 24 of The Public Service Regulations require that the Applicant may be suspended from public office only if convicted of a serious criminal offence or if there are pending proceedings for his dismissal, in which event he shall not be entitled to any salary.
3. Regulation 23 of The Public Service Regulations require that in the event of the Applicant’s interdiction, he be entitled to not less than half his salary, allowances and benefits pending a decision on the outcome of the investigations surrounding any such interdiction.
4. On 4th day of August, 2011 the 1st and 2nd Respondents whilst communicating the Applicant’s purported suspension from public office, purported to suspend the Applicant’s salary, allowances and benefits as a result of which the same have been withdrawn.
5. The 1st Respondent failed to serve the Applicant with a warning letter detailing the particulars of the allegations and according the Applicant adequate opportunity to respond to the allegations, in violation of the Applicant’s legal and constitutional rights.
6. Instead of inviting the Applicant to return from vacation and issuing him with the suspension letter in a humane and dignified manner, the 1st Respondent released or leaked the suspension letter to the media more than twenty hours before he delivered the letter to the Applicant thereby grossly violating his rights.
7. The 1st and 2nd Respondents have tacitly or indirectly authorized or acquiesced to third parties’ making disparaging comments about the Applicant and purporting to give “reasons” for the suspension. This conduct aggravates the damages suffered by the Applicant.
8. The 1st Respondent’s purported suspension letter did not provide grounds known to law. In addition, the 1st Respondent failed to disclose specific particulars including dates, places, and identities of aggrieved third parties or the nature of “complaints,” if any, against the Applicant.
9. The 1st Respondent has failed to provide the Applicant with the opportunity to respond to the allegations.
10. The 1st and 2nd Respondents have also failed to disclose the nature and particulars of the investigative agency, such agency’s legal mandate, where and when such agency will conduct and conclude investigations; and/or how long the suspension will last. Consequently, the suspension is a nullity in law.
11. Even if the suspension letter was to be an interdiction, the Applicant is entitled to not less than half his salary, and his full allowances and benefits pending a decision on the outcome of the investigations surrounding any such interdiction.
12. The 1st and 2nd Respondents’ decision is unconstitutional as it has denied the Applicant the right to fair administrative action and due process of the law as guaranteed by Articles 47, 50, 234 and 236 of the Constitution of Kenya, 2010 and is therefore, illegal, null and void ab initio.
13. The 1st and 2nd Respondents have acted in breach of rules of natural justice and statute in condemning the Applicant to suffer the loss of public office, salary, allowances and benefits without a hearing.
14. The 1st and 2nd Respondents have acted ultra vires their jurisdiction as the 1st Respondent had no power to suspend the Applicant, the Applicant having been appointed by the President of the Republic of Kenya, there was no power under statute or at all to suspend the Applicant’s salary, allowances and withdraw the benefits due to the Applicant, nor was the 1st Respondent instructed to suspend the Applicant’s salary, allowances and withdraw the benefits due to the Applicant.
15. The 1st and 2nd Respondents have acted without or in excess of their jurisdiction as the Applicant could be suspended from public office only by an authorised officer of which the 1st Respondent is not, and only if convicted of a serious criminal offence or if there were pending proceedings for his dismissal (there are none), in which event the Applicant would not be entitled to any salary.
16. The 1st and 2nd Respondents have failed and frustrated the Applicant’s legitimate expectations that he would be accorded a fair hearing concerning the termination or suspension from public office as required by The Constitution of the Kenya and The Public Service Commissions Act, Cap. 185 of the Laws of Kenya.
17. The 1st and 2nd Respondents have acted unfairly, in bad faith and maliciously in suspending the Applicant from public office, suspending the Applicant’s salary, allowances and withdrawing the benefits due to the Applicant when he has not been charged and convicted of a serious criminal offence and where there are no pending proceedings for his dismissal.
18. The 1st and 2nd Respondents’ action is unconstitutional, is made in breach of statute, is illegal, is un-procedural, is unfair, is irrational and unreasonable and ought to be restrained by an order of stay pending the determination of these proceedings.
19. The Applicant has suffered and will continue suffering substantial irreparable loss if the 1st and 2nd Respondents’ illegal decision is not quashed and the 1st and 2nd Respondents prohibited from implementing or enforcing the illegal decision.
20. The Court has supervisory jurisdiction over the actions of the 1st and 2nd Respondents and to grant the prayers sought in order to safeguard proper exercise of statutory powers within the parameters of law and to prevent abuse of power.
DATED at Nairobi this 10th day of August, 2011.
HAVI & COMPANY
ADVOCATES FOR THE APPLICANT
DRAWN & FILED BY:-
HAVI & COMPANY
ADVOCATES
1ST FLOOR, ROOM A8, OJIJO PLAZA
P.O. BOX 38422-00623
NAIROBI (OUR REF.: HA/MS/032/011)
TO BE SERVED UPON:-
1. THE PERMANENT SECRETRARY
OFFICE OF THE PRIME MINISTER
PRIME MINISTER’S BUILDING, 2ND FLOOR
HARAMBEE AVENUE
P.O. BOX 74434-00200
NAIROBI
2. THE ATTORNEY-GENERAL
STATE LAW OFFICE
SHERIA HOUSE
P.O. BOX 40112-00100
NAIROBI
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW CASE NO. OF 2011
IN THE MATTER OF AN APPLICATION BY MIGUNA MIGUNA FOR LEAVE FOR ORDERS OF CERTIORARI, PROHIBITION AND MANDAMUS
AND
IN THE MATTER OF THE SERVICE COMMISSIONS ACT, CAP. 185 OF THE LAWS OF KENYA
AND
IN THE MATTER OF MIGUNA MIGUNA
BETWEEN
MIGUNA MIGUNA……………………………………………………..APPLICANT
AND
THE PERMANENT SECRETARY, OFFICE
OF THE PRIME MINISTER…………………………………….1ST RESPONDENT
THE ATTORNEY-GENERAL…………………………………..2ND RESPONDENT
VERIFYING AFFIDAVIT
I, MIGUNA MIGUNA of Post Office Box Number 1522 Nairobi and residing in Nairobi hereby solemnly swear and state as follows:-
1. I am the Applicant herein. I have full knowledge and information concerning this matter and I am competent to swear this Affidavit.
2. I have seen, read and been explained to by my Advocates Havi & Company, understood the contents of the Chamber Summons and Statutory Statement herein and swear this Affidavit in verification of the Statement and in support of the Chamber Summons.
3. I am a lawyer of 15 years’ experience as a Barrister, Solicitor and Mediator in Canada.
4. On the 6th day of March, 2009 I was appointed a public officer of the rank of Permanent Secretary by the President of the Republic of Kenya and posted to the office of the Prime Minister as an Advisor on Coalition Affairs and a Joint Secretary to the Permanent Committee on the Management of Grand Coalition Affairs, at all times reporting directly to the Prime Minister of the Republic of Kenya. The letter of appointment in that regard is exhibited and annexed herewith as “MM1”.
3. I took up the appointment and have served in that capacity earning a monthly salary, allowances and entitled to benefits, which include amongst others:-
a. Basic salary of Kshs. 254,000.00 per month.
b. House allowance of Kshs. 80,000.00 per month.
c. Entertainment allowances of Kshs. 100,000.00 per month.
d. Extraneous allowance of Kshs. 100,000.00 per month.
e. Domestic staff allowance of Kshs. 15,600.00 per month.
f. A comprehensive medical cover for myself, my spouse and our 5 children with Pioneer Insurance.
g. Leave allowance of Kshs. 50,000.00 per year.
h. A chauffer and an official car.
i. Armed personal security or “body guard”.
j. Armed security at my house in Nairobi.
5. I have not received any memo, complaint, warning, notice or communication whatsoever about any impropriety in the performance of my duties as a public officer from my employer or at all.
6. There is pending before the Industrial Court of Kenya, Cause No. 473 of 2011, between the 2nd Respondent and myself, in which I have sought amongst others, a declaration that I am entitled to a salary, allowances and benefits commensurate to those of my counterpart, Professor Kiviutha Kibwana. The claim in that regard is regard is exhibited and annexed herewith as “MM2”.
7. On the 4th day of August, 2011 at about 3:30 p.m. whilst on annual leave and attending a retreat of the ODM Strategic Team Workshop at the Enashipai Resort and Spa in Naivasha, I received short message texts from journalists informing me that I had been suspended. The claimed suspension was posted on the Nation Media’s text message breaking news “411” at around the same time, aired, published and broadcast electronically on radio and television stations and other media thereafter at 4:00 p.m. A journalist with the Star newspaper informed me which information I verily believe was correct, that he was provided with a copy of the suspension letter by the 1st Respondent or his agents before 3:00 p.m. on the 4th day of August, 2011.
8. Later, a friend of mine, Nabii Nabwera, informed me which information I verily believe was correct, that he had seen stories on Twitter and Face Book announcing my suspension as early as 11:00 a.m. on the 4th day of August 2011.
9. I truly believe that the 1st Respondent and his agents had carefully, selectively and maliciously leaked the suspension letter and/or information to the Internet and other electronic media before 12:00 p.m. that day.
10. At or about 4:15 p.m. on the 4th day of August, 2011, my secretary sent me a short message text informing that my personal assistant, messenger and she had received termination letters without any reasons.
11. At or about 5:00 p.m. on the 4th day of August, 2011, my personal assistant sent me another short message text informing that he had received a letter from the 1st Respondent addressed to me and marked “top secret” and the person who delivered it had instructed her not to open it.
12. On my way to Nairobi on that day, my housekeeper called and informed me that the Administration Policeman posted at my residence had been collected and that there was nobody at the gate.
13. I arrived at my residence in Nairobi at or about 7:00 p.m. and later at 9:00 p.m. watched the news bulletin where I learnt that I had been suspended and the details of the suspension set out in the bulletin. The news items indicated and confirmed that media houses had a copy of my suspension letter, which they quoted verbatim. This was so notwithstanding the fact that the letter had not been delivered to me and was sealed and marked “top secret”, and that my personal assistant was instructed by the 1st Respondent or his agent that delivered the letter not to pen it.
13. I received the suspension letter on after 2:00 p.m. on Friday the 5th day of August, 2011, sealed and marked “top secret” from my driver and bodyguard. The letter and forwarding envelop are exhibited and collectively annexed herewith as “MM3”.
14. The 1st Respondent failed to serve me with a warning letter detailing the particulars of the allegations and according me fair and adequate opportunity to respond to the allegations.
15. Instead of inviting me to return from vacation and issuing me with a warning or suspension letter in a humane and dignified manner, the 1st Respondent released or leaked the suspension letter to the media more than twenty hours before he delivered the letter to me thereby.
16. The 1st and 2nd Respondents have tacitly or indirectly authorized or acquiesced to third parties’ making disparaging comments about the me and purporting to give “reasons” for the “suspension” further grossly violating my rights and prejudicing the outcome of any such claimed investigations on the allegations leveled against me. The newspapers articles in which the comments are made are exhibited and collectively annexed herewith as “MM4”.
17. The 1st Respondent’s purported suspension letter did not provide grounds known to law. In addition, the 1st Respondent failed to disclose specific particulars including dates, places, and identities of aggrieved third parties or the nature of “complaints,” if any, against me.
18. The 1st and 2nd Respondents have also failed to disclose the nature and particulars of the investigative agency, such agency’s legal mandate, where and when such agency will conduct and conclude investigations; and/or how long the suspension will last. I truly believe that the suspension is a nullity in law.
19. Moreover, the 1st Respondent is not my appointing authority. He is also not my supervisor. According to the strategic plan and organogram of the Office of the Prime Minister, I report directly to the Prime Minister and not to the 1st Respondent.
20. As a public officer, the circumstances under which I may be investigated and disciplined are set out in detail, in The Public Service Commission Regulations, 2005 which I am very familiar with. A copy of the Regulations is exhibited and annexed herewith as “MM5”.
21. I am aware that Regulation 24 of The Public Service Regulations requires that I may be suspended from public office only if convicted of a serious criminal offence or if there are pending proceedings for my dismissal, in which event I shall not be entitled to any salary.
22. I am also aware that Regulation 23 of The Public Service Regulations requires that in the event of my interdiction, I be entitled to not less than half my salary, allowances and benefits pending a decision on the outcome of the investigations surrounding any such interdiction.
23. None of the events referred to in paragraphs 21 and 22 have occurred in respect of myself.
24. I verily believe that even if the letter dated the 4th day of August, 2011 was deemed to be an interdiction, I would still be entitled to not less than half of my salary, full allowances and benefits pending a decision on the outcome of the investigations surrounding any such interdiction.
25. In the letter dated the 4th day of August, 2011 in which the 1st and 2nd Respondents communicated my purported suspension from public office, the 1st Respondent purported to suspend my salary, allowances and benefits as a result of which the same have been withdrawn. The suspension was also not for a definite period of time as required by law.
26. The withdrawal of my salary, allowances and benefits has exposed me for the reasons inter alia, that:-
a. My family and I have been denied a livelihood.
b. I have been denied access to my office and my personal belongings therein.
c. I and my family have been denied medical care and/or coverage.
d. I have been denied security despite the nature and risk of my office and status.
27. The 1st and 2nd Respondents had by the end of the 4th day of August, 2011 changed locks to my office and have denied me access and possession to my personal effects like books, documents and others.
28. I verily believe that the 1st and 2nd Respondents’ decision is malicious, vindictive, unlawful and unconstitutional as it has denied me the right to fair administrative action and due process of the law as guaranteed by Articles 47, 50, 234 and 236 of the Constitution of Kenya, 2010 and is therefore, illegal, null and void ab initio.
29. I verily believe that the 1st and 2nd Respondents have acted in breach of the rules of natural justice and statute in condemning me to suffer the loss of public office, salary, allowances and benefits without a hearing.
30. I verily believe that the 1st and 2nd Respondents have acted ultra vires their jurisdiction as the 1st Respondent had no power to suspend me, my appointment having been done by the President of the Republic of Kenya, there was no power under statute or at all to suspend my salary, allowances and withdraw the benefits due to me, nor was the 1st Respondent instructed to suspend my salary, allowances and withdraw the benefits due to me.
31. I verily believe that the 1st and 2nd Respondents have acted without or in excess of their jurisdiction as I could be suspended from public office only by an authorised officer of which the 1st Respondent is not, and only if convicted of a serious criminal offence or if there were pending proceedings for my dismissal (there are none), in which event I would not be entitled to any salary.
32. I verily believe that the 1st and 2nd Respondents have failed and frustrated my legitimate expectations that I would be accorded a fair hearing concerning any termination or suspension from public office as required by The Constitution of the Kenya and The Public Service Commissions Act, Cap. 185 of the Laws of Kenya.
33. I verily believe that the 1st and 2nd Respondents have acted unfairly, in bad faith and maliciously in suspending me indefinitely from public office and whilst I was on leave, suspending my salary, allowances and withdrawing the benefits due to me when I have not been charged and convicted of a serious criminal offence or any offence and where there are no pending proceedings for my dismissal.
34. I verily believe that the 1st and 2nd Respondents’ action is unconstitutional, is in breach of statute, is illegal, is un-procedural, is unfair, is irrational and unreasonable and ought to be restrained by an order of stay pending the determination of these proceedings.
35. I have suffered and will continue suffering substantial irreparable loss if the 1st and 2nd Respondents’ illegal decision is not quashed and the 1st and 2nd Respondents prohibited from implementing or enforcing the illegal decision.
36. I verily believe that the Court has supervisory jurisdiction over the actions of the 1st and 2nd Respondents and to grant the prayers sought in order to safeguard proper exercise of statutory powers within the parameters of law and to prevent abuse of power.
37. I verify that the entire contents of the Statutory Statement are true and correct.
38. What is deponed to hereinabove is true and correct to the best of my knowledge, information and belief save as to matters deponed to on information sources whereof have been disclosed and matters deponed to on belief whereupon grounds have been given.
SWORN by the said MIGUNA MIGUNA )
At Nairobi this 10th day of August, 2011 )
)
BEFORE ME )
)
)
COMMISSIONER FOR OATHS )
DRAWN & FILED BY:-
HAVI & COMPANY
ADVOCATES
1ST FLOOR, ROOM A8, OJIJO PLAZA
PLUMS LANE, OFF OJIJO ROAD
P.O. BOX 38422-00623
NAIROBI (OUR REF.: HA/MS/032/011)
TO BE SERVED UPON:-
1. THE PERMANENT SECRETRARY
OFFICE OF THE PRIME MINISTER
PRIME MINISTER’S BUILDING, 2ND FLOOR
HARAMBEE AVENUE
P.O. BOX 74434-00200
NAIROBI
2. THE ATTORNEY-GENERAL
STATE LAW OFFICE
SHERIA HOUSE
P.O. BOX 40112-00100
NAIROBI
Posts
No comments:
Post a Comment