Post by Onyango Oloo on Sept 23, 2011 13:18:18 GMT 3
Our Ref: HA/MS/032/011
Your Ref: AG/MPND/2/11
Date: 14th September, 2011
The Attorney General
Attorney General’s Chambers
Sheria House
P.O. Box 40112-00100
Nairobi
“Without prejudice”
Dear Sir,
Re: Miguna Miguna v. The Attorney General et al
We act for the applicant, Mr. Miguna Miguna, in the above captioned matter.There are two (2) pending matters between your office and our client, both of which we propose an out of court settlement on.
Industrial Court of Kenya Cause No. 473 of 2011, Miguna Miguna -vs- The Attorney General, was instituted on 29th March, 2011. Our client has sought a declaration of entitlement to salary, allowance and benefits on a scale similar to that of Prof. Kivutha Kibwana and the difference in the same as at the time of institution of the claim, in the sum of Kshs. 4,624,080.00. If compounded up to now, the total sum would be higher than stated herein. Needless to say, if this offer is accepted, we would need to discuss the finer details and have a structured agreement executed in order to account for any discrepancies. The claim has not been responded to. A review of the pleadings and correspondence exchanged on the matter confirms that there was an agreement that our client be remunerated in terms of the claim.
Judicial Review Case No. 188 of 2011, Republic -vs- The Permanent Secretary, Office of the Prime Minister and the Attorney General, Ex-Parte Miguna Miguna, was instituted on 11th August, 2011. It seeks in the main, to quash the decision of the Permanent Secretary, Office of the Prime Minister made on 4th August, 2011 suspending our client, suspending his salary, allowances and withdrawing benefits due to him. The matter comes up in Court on 22nd September, 2011 for the hearing of our client’s application for an order that leave to commence the proceedings granted on 24th August, 2011 operate as stay of the decision.
A review of the documents in support of this claim confirms that the decision to suspend our client was taken in contravention of Regulation 24 of The Public Service Regulations. Our client had not been convicted of a serious criminal offence nor were there pending proceedings for his dismissal. The Permanent Secretary, Office of the Prime Minister sought to legitimize his unlawful action by dispatching a letter to our client on 12th August, 2011 which was back dated 4th August, 2011 in which he purported to create the impression that proceedings for our client’s dismissal had been commenced. A conviction or pendency of dismissal proceedings must precede a suspension and not the other way round. In addition, the Permanent Secretary did not – and indeed has not up to now – disclosed the basis of his decision. Although we served our demand for particulars, the same has not been responded to or satisfied, as required by law. The decision of Marete-vs-Attorney General (1987) KLR 690 long settled this matter.
There are many other statutory and constitutional breaches committed by the Permanent Secretary, Office of the Prime Minister. First, the Permanent Secretary, Office of the Prime Minister did not have any power to discipline our client as he is not an authorized officer for the purposes of Part IV of The Regulations. Second, no complaint had been made against our client and considered in the manner set out under Regulation 34 of The Regulations.
The Permanent Secretary, Office of the Prime Minister’s action further contravened several Articles of the Constitution for instance, Article 234 (2) (b), which gives the power of disciplinary control over and removal of persons holding public office to The Public Service Commission; and Article 236 (b), which protects public officers from being dismissed, removed from office, demoted in rank, or otherwise subjected to disciplinary action without due process of law.
The Reply Affidavit in the captioned matter filed by your office appears to have been informed by the misapprehension [] that our client is seeking reinstatement to public office. Quite clearly, there is judicial authority that the Court can order reinstatement to public office. It was done in Flora Njeru vs Controller & Auditor General, (2006) eKLR and in Joyce Manyasi -vs- Evan Gicheru & 3 others (2009) eKLR. In Justice Amraphael Mbogholi Msagha -vs- The Chief Justice of the Republic of Kenya & 7 others (2006) eKLR, the Court held that a public officer is entitled to his salary and all trappings of public office until otherwise lawfully removed from office. Indeed, that has applied in the cases of several public officers including Cabinet Ministers and Permanent Secretaries. The discrimination of our client in the suspension of his salary, allowances and withdrawal of benefits could only have been malicious.
Our client as not and is not pursuing this claim for the purposes of reinstatement. The issue does not arise because he has not been removed from public office in the first place. However, due to the poisoned environment created by the irregular suspension and the subsequent publicity that accompanied it, he would prefer an amicable separation wherein he is paid his full salary, allowances and benefits due to him for the unexpired term of his appointment. The payment will have to be for the period from July 26th, 2011 (when he received his last payment) to December 19th, 2012 (which is the date the cabinet has fixed the next general elections for). As you may appreciate, our client was to serve until the end of the grand coalition government. The payment should accord with the remuneration due to him and claimed in the matter pending before the Industrial Court, being such an amount as is due to Prof. Kivutha Kibwana. In exchange, our client shall execute the necessary Release and Consent to have both matters withdrawn.
Accordingly, it is proposed that the two (2) matters be settled upon the following terms:-
The suspension of our client be rescinded and the allegations contained in the two (2) letters dated 4th August, 2011 from the Permanent Secretary, Office of the Prime Minister be withdrawn in writing;
Our client be allowed to access his office and collect his personal effects;
Our client be paid salary, house allowance, entitlement allowance, entertainment allowance, extraneous allowance, domestic staff allowance and full medical cover on the same scale as Prof. Kivutha Kibwana for the period between July 26th, 2011 and December 19th, 2012;
Our client be paid the difference of salary, house allowance, entitlement allowance, extraneous allowance and domestic staff allowance received and that are due on the same scale as Prof. Kivutha Kibwana for the period between 6th March, 2009 and July 26th, 2011;
Our client voluntarily resigns from public office;
Our client be given written recommendation for future employment upon resignation on account of cordial termination of appointment; and,
The two (2) pending matters be withdrawn with legal costs to be paid to the two (2) Advocates handling the same.
That appropriate damages be paid to our client on account of the inconvenience and embarrassment caused.
And finally, that you shall publicly announce the settlement and details of it to the public in order to ensure that it is prominently published in all the electronic and print media that published the suspension.
This offer is made strictly on a without prejudice basis and is not intended to be relied upon to delay the hearing of the judicial review matter on 22nd September, 2011. We will therefore appreciate receiving your formal acceptance on or before September 20th, 2011 at 2:00 PM, failing which the offer shall be deemed to have expired and shall not be relied on at the scheduled hearing, except for the assessment of costs by the Court.
Yours faithfully,
HAVI & COMPANY ADVOCATES
Nelson Havi
nhavi@haviandcompany.com
Cc. Mr. Miguna Miguna “by email”
Nairobi
Your Ref: AG/MPND/2/11
Date: 14th September, 2011
The Attorney General
Attorney General’s Chambers
Sheria House
P.O. Box 40112-00100
Nairobi
“Without prejudice”
Dear Sir,
Re: Miguna Miguna v. The Attorney General et al
We act for the applicant, Mr. Miguna Miguna, in the above captioned matter.There are two (2) pending matters between your office and our client, both of which we propose an out of court settlement on.
Industrial Court of Kenya Cause No. 473 of 2011, Miguna Miguna -vs- The Attorney General, was instituted on 29th March, 2011. Our client has sought a declaration of entitlement to salary, allowance and benefits on a scale similar to that of Prof. Kivutha Kibwana and the difference in the same as at the time of institution of the claim, in the sum of Kshs. 4,624,080.00. If compounded up to now, the total sum would be higher than stated herein. Needless to say, if this offer is accepted, we would need to discuss the finer details and have a structured agreement executed in order to account for any discrepancies. The claim has not been responded to. A review of the pleadings and correspondence exchanged on the matter confirms that there was an agreement that our client be remunerated in terms of the claim.
Judicial Review Case No. 188 of 2011, Republic -vs- The Permanent Secretary, Office of the Prime Minister and the Attorney General, Ex-Parte Miguna Miguna, was instituted on 11th August, 2011. It seeks in the main, to quash the decision of the Permanent Secretary, Office of the Prime Minister made on 4th August, 2011 suspending our client, suspending his salary, allowances and withdrawing benefits due to him. The matter comes up in Court on 22nd September, 2011 for the hearing of our client’s application for an order that leave to commence the proceedings granted on 24th August, 2011 operate as stay of the decision.
A review of the documents in support of this claim confirms that the decision to suspend our client was taken in contravention of Regulation 24 of The Public Service Regulations. Our client had not been convicted of a serious criminal offence nor were there pending proceedings for his dismissal. The Permanent Secretary, Office of the Prime Minister sought to legitimize his unlawful action by dispatching a letter to our client on 12th August, 2011 which was back dated 4th August, 2011 in which he purported to create the impression that proceedings for our client’s dismissal had been commenced. A conviction or pendency of dismissal proceedings must precede a suspension and not the other way round. In addition, the Permanent Secretary did not – and indeed has not up to now – disclosed the basis of his decision. Although we served our demand for particulars, the same has not been responded to or satisfied, as required by law. The decision of Marete-vs-Attorney General (1987) KLR 690 long settled this matter.
There are many other statutory and constitutional breaches committed by the Permanent Secretary, Office of the Prime Minister. First, the Permanent Secretary, Office of the Prime Minister did not have any power to discipline our client as he is not an authorized officer for the purposes of Part IV of The Regulations. Second, no complaint had been made against our client and considered in the manner set out under Regulation 34 of The Regulations.
The Permanent Secretary, Office of the Prime Minister’s action further contravened several Articles of the Constitution for instance, Article 234 (2) (b), which gives the power of disciplinary control over and removal of persons holding public office to The Public Service Commission; and Article 236 (b), which protects public officers from being dismissed, removed from office, demoted in rank, or otherwise subjected to disciplinary action without due process of law.
The Reply Affidavit in the captioned matter filed by your office appears to have been informed by the misapprehension [] that our client is seeking reinstatement to public office. Quite clearly, there is judicial authority that the Court can order reinstatement to public office. It was done in Flora Njeru vs Controller & Auditor General, (2006) eKLR and in Joyce Manyasi -vs- Evan Gicheru & 3 others (2009) eKLR. In Justice Amraphael Mbogholi Msagha -vs- The Chief Justice of the Republic of Kenya & 7 others (2006) eKLR, the Court held that a public officer is entitled to his salary and all trappings of public office until otherwise lawfully removed from office. Indeed, that has applied in the cases of several public officers including Cabinet Ministers and Permanent Secretaries. The discrimination of our client in the suspension of his salary, allowances and withdrawal of benefits could only have been malicious.
Our client as not and is not pursuing this claim for the purposes of reinstatement. The issue does not arise because he has not been removed from public office in the first place. However, due to the poisoned environment created by the irregular suspension and the subsequent publicity that accompanied it, he would prefer an amicable separation wherein he is paid his full salary, allowances and benefits due to him for the unexpired term of his appointment. The payment will have to be for the period from July 26th, 2011 (when he received his last payment) to December 19th, 2012 (which is the date the cabinet has fixed the next general elections for). As you may appreciate, our client was to serve until the end of the grand coalition government. The payment should accord with the remuneration due to him and claimed in the matter pending before the Industrial Court, being such an amount as is due to Prof. Kivutha Kibwana. In exchange, our client shall execute the necessary Release and Consent to have both matters withdrawn.
Accordingly, it is proposed that the two (2) matters be settled upon the following terms:-
The suspension of our client be rescinded and the allegations contained in the two (2) letters dated 4th August, 2011 from the Permanent Secretary, Office of the Prime Minister be withdrawn in writing;
Our client be allowed to access his office and collect his personal effects;
Our client be paid salary, house allowance, entitlement allowance, entertainment allowance, extraneous allowance, domestic staff allowance and full medical cover on the same scale as Prof. Kivutha Kibwana for the period between July 26th, 2011 and December 19th, 2012;
Our client be paid the difference of salary, house allowance, entitlement allowance, extraneous allowance and domestic staff allowance received and that are due on the same scale as Prof. Kivutha Kibwana for the period between 6th March, 2009 and July 26th, 2011;
Our client voluntarily resigns from public office;
Our client be given written recommendation for future employment upon resignation on account of cordial termination of appointment; and,
The two (2) pending matters be withdrawn with legal costs to be paid to the two (2) Advocates handling the same.
That appropriate damages be paid to our client on account of the inconvenience and embarrassment caused.
And finally, that you shall publicly announce the settlement and details of it to the public in order to ensure that it is prominently published in all the electronic and print media that published the suspension.
This offer is made strictly on a without prejudice basis and is not intended to be relied upon to delay the hearing of the judicial review matter on 22nd September, 2011. We will therefore appreciate receiving your formal acceptance on or before September 20th, 2011 at 2:00 PM, failing which the offer shall be deemed to have expired and shall not be relied on at the scheduled hearing, except for the assessment of costs by the Court.
Yours faithfully,
HAVI & COMPANY ADVOCATES
Nelson Havi
nhavi@haviandcompany.com
Cc. Mr. Miguna Miguna “by email”
Nairobi
