PSC orders Mombasa County Public Service Board to reinstate three lawyers

The Public Service Commission (PSC) has ordered the Mombasa County Public Service Board (MCPSB) to reinstate three lawyers to the positions they held before they were unlawfully dismissed from service.

It further directed MCPSB to reinstate the lawyers, who worked at the County Attorney’s office, without loss of salary, allowances and benefits.

The PSC made the decision after allowing an appeal by Ms Elizabeth Kuria, Ms Elizabeth Kisingo and Ms Hilda Omboga against MCPSB’s decision to dismiss them from employment.

The commission set aside the verdict by MCPSB to dismiss the lawyers from employment and subsequent letters communicating it (verdict).

“The respondent (MCPSB) shall process and pay the appellants (the lawyers) all their salaries and allowances in full, from the date they were dismissed and thereafter their salaries and applicable allowances be paid to them as and when due on a monthly basis,” said the PSC.

In its decision, PSC said that the dismissals of Ms Kuria, Ms Kisingo and Ms Omboga were unfair in both substance and procedure thus they were entitled to the orders they sought.

According to PSC, the show cause letters issued to the appellants merely set out allegations in a blanket and generalized manner.

It noted that allegations levelled against an employee must be clearly framed and fully particularised failing which the employee is denied a meaningful opportunity to adequately defend themselves.

The PSC ruled that it is at the disciplinary hearing, once charges have been formally framed that an employee must be accorded a meaningful opportunity to be heard.

It said that upon concluding investigation and before arriving at the final decision, which was communicated to the appellants, the investigations committee ought to have forwarded its findings to the complaints committee.

PSC said that the lawyers were to be furnished with an investigation report and all other documents in support of the allegations raised against them.

It said that they also ought to have been accorded sufficient opportunity to prepare their defence and thereafter appear before the complaints committee, accompanied by representative of their choice.

“However, this was not the case herein as the appellants were given a one-day notice to appear for the investigating hearing, their requests for adjournments declined and the investigation report forwarded to the complaints committee which then recommended their dismissal to the MCPSB,” said the PSC.

The PSC noted that denying Ms Kuria, Ms Kisingo and Ms Omboga a hearing was an affront to injustice and a violation of their right to fair labour practices and fair administrative action.

“The disciplinary process meted out against the appellants was unfair and unprocedural,” ruled the PSC.

PSC also said that it wrote to the MCPSB requesting to be furnished with the board’s resolution adopting PSC’s Human Resource Policies and Procedure Manual and the Discipline Manual for the public service or provide copies of Mombasa County’s Human Resource Policies and Procedures Manual and Discipline Manual to preside over the matter accordingly, but did not receive any response.

In their appeal, Ms Kuria, Ms Kisingo and Ms Omboga stated that despite the office of the County Attorney receiving a monthly standing office imprest of Sh500,000 and an approved budget of Sh86.7 million in addition to previous yearly budgets which were supposed to cater for personal emoluments and operations, advocates working under it were  never facilitated with any resources and facilities.

The three lawyers argued that it was untenable for them to use their salaries to subsidize office operations to fulfil their obligations.

They argued that they had raised their grievances verbally to the county government since 2019 without any solution prompting them to write letters addressed to the County Attorney, Chief of Staff, Governors’ office and County Secretary.

The appellants said that the letters were never responded to and instead they were issued with show cause letters and that without being served with the findings of the investigations committee or invited for a disciplinary hearing by the board, they were issued with summary dismissal letters.

They argued that their rights and fundamentals freedoms as enshrined in the constitution had been violated, MCPSB failed to demonstrate good faith in invoking disciplinary action against them and unfairly sacked them without following due process and substantive justification.

On its part, MCPSB said that the county government provided adequate resources and facilities to ensure the appellants performed their duties effectively.

It denied that the appellants used their personal salaries to supplement office operations or that payment of allowances was unilaterally stopped on County Attorney’s directions.

MCPSB further said that due diligence was observed throughout the disciplinary process since it took approximately four months to investigate and deliberate on the charges set out in the show cause letters prior to mandating the investigations committee to engage them.

The commission also ordered that the appellants are entitled to non-practice allowance in accordance with a decision by the Court of Appeal.

In November last year, PSC had also ordered for the reinstatement of two county law enforcement officers after it found that their dismissal was unfair both in substance and procedure.

It ruled that the MCPSB had a duty of proving (bribery) allegations made against the officers which it failed to do despite them denying.

The commission also noted that from the record it was clear that prior to being suspended, the enforcement officers were never issued with a show cause letter listing allegations raised against them for them to respond appropriately even before the decision to suspend was made.