REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI

CAUSE NO. 749 OF 2015

RENOLD MBECHE ALWANG’A ……............................................................... CLAIMANT

VERSUS

SACCO SOCIETIES REGULATORY AUTHORITY…………....…. 1ST RESPONDENT

MINISTRY OF INDUSTRIALIZATION AND ENTERPRISE DEVELOPMENT
…………………………………………………………………………….. 2ND RESPONDENT

THE CLAIMANTS’ STATEMENT OF CLAIM

ISSUES IN DISPUTE
1. Unfair dismissal and refusal by the 1st Respondent to pay outstanding terminal
benefits due to the Claimant.

2. Illegal and unlawful interference by the 2nd Respondent on matters pertaining to

the Claimant’s employment with the 1st Respondent.

EVIDENCE

The Claimant will rely on oral & documentary evidence to support his claim.

INTRODUCTION
1) The Claimant is a male adult residing in Nairobi City County within the Republic of
Kenya. His address for service for the purpose of this suit shall be under the care
of:- M/S Ashitiva & Company Advocates, Victoria Towers, First Floor, Kilimanjaro
Avenue, Upper Hill, P. O Box 21372-00100 Nairobi, Kenya.
(info@ashitivaadvocates.com)

2) The 1st Respondent is a statutory state corporation established under the Sacco
Societies Act, of the Laws of Kenya. Its address of service for purposes of this suit
shall be care of Britam Centre, Upper Hill, 1st Floor, and of P.O Box 25089 – 00100
Nairobi. (Service of pleadings upon it shall be effected through the Claimant’s
advocates).

3) The 2nd Respondent a ministry under the Government of Kenya. Its address of
service for purposes of this suit shall be care of Social Security House, Block A, 17th
and 23rd Floor, and of P.O Box 30418-00100 Nairobi. (Service of pleadings upon it
shall be effected through the Claimant’s advocates).

4) There is no other case pending and that there has been no previous suit in any court
between the Claimant and the Respondents over the subject matter herein.

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FACTS OF THE CLAIM
5) The Claimant was employed by the 2nd Respondent via the letter of appointment
dated 26th May, 2008 and later on he was seconded to the 1st Respondent for a
period of three (3) years.[Annexed herewith and marked “RMA-1” is a copy of the
employment, letter of posting dated 19th June, 2008 and secondment letter]

6) It was a requirement that for the Claimant to be seconded to the 1st Respondent, he
had to apply for the intended position. The position was internally advertised within
the 2nd Respondent’s premises where the Claimant applied for the ICT Manager
position and had a successful interview. [Annexed and marked “RMA-2” is a copy of
the 1st Respondent’s letter dated 29th July, 2010 to the 2nd Respondent informing the
2nd Respondent that the Claimant applied for the said position and had a successful
interview]

7) At the lapse of the three years, the 2nd Respondent wrote to the 1st Respondent
requesting the 1st Respondent to release the officers on secondment, including the
Claimant, back to the 2nd Respondent with immediate effect for further deployment.
[Annexed and marked “RMA-3” is a copy of the said letter dated 22nd July, 2013]

8) In response to the letter dated 22nd July, 2013, the 1st Respondent wrote to the 2nd
Respondent, via a letter dated 6th August, 2013, informing it that the 1st Respondent
is now a fully established Authority and has since absorbed the officers on
secondment, including the Claimant, on a permanent and pensionable basis and as
such, his years of service under the 2nd Respondent be transferred to the 1st
Respondent Retirement Benefits Scheme to ensure that the Claimant does not lose
his years worked. [Annexed and marked “RMA-4” is a copy of the said letter dated 6th
August, 2013, a letter from the Retirement Benefits Authority dated 28th June, 2011
approving the 1st Respondent’s Pension Benefits Scheme and a letter dated 16th July,
2014 requesting that the Claimant’s years of service with the 2nd Respondent be
transferred to the 1st Respondent]

9) The 2nd Respondent in its letter dated 2nd October, 2013 while responding to the 1st
Respondent’s letter of 6th August, 2013, wrote to the 1st Respondent acknowledging
that the 1st Respondent is now a fully-fledged Authority and the officers, including
the Claimant, initially seconded to it have since been absorbed on a permanent and
pensionable basis and the 1st Respondent was to clearly indicate the effective date
when the Claimant was absorbed as an employee on a permanent and pensionable
basis. [Annexed and marked “RMA-5” is a copy of the said letter dated 2nd October,
2013 from the 2nd Respondent to the 1st Respondent]

10)On the 22nd May, 2014, the 1st Respondent wrote to the 2nd Respondent informing it
that the Claimant was absorbed on a permanent and pensionable basis, after
satisfying it recruitment procedures, on the 1st July, 2010. The said letter had
handwritten notes written on the 27th November, 2014 directing that the Claimant be

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 removed from the 2nd Respondent’s payroll [Annexed and marked “RMA-6” is a copy
of the said letter dated 22nd May, 2014 from the 1st Respondent to the 2nd
Respondent]

11)That on the 11th August, 2014, while the Claimant applied for a Bank facility with CFC
Stanbic Bank, the 1st Respondent wrote to the Bank informing that Bank that the
Claimant was its employee working as a Manager – ICT on permanent and
pensionable terms for the last four (4) years. [Annexed and marked “RMA-7” is a
copy of the said letter to the Bank]

12)On the 30th September, 2014, a Notice to Show Cause letter was sent to the Claimant
by the 1st Respondent and the Claimant responded via his letter dated 2nd October,
2014. [Annexed and marked “RMA-8” is a copy of the Notice to Show Cause and a
response letter dated 2nd October, 2010]

13)Consequently, on the 14th October, 2014, the 1st Respondent wrote a cautionary letter
to the Claimant informing him that a repeat of the allegations contained in the
Notice to Show Cause would lead to the 1st Respondent taking severe disciplinary
action against the Claimant. [Annexed and marked “RMA-9” is a copy of the said
letter dated 14th October, 2014]

14)From the foregoing, there is overwhelming and uncontroverted evidence that the
Claimant was an employee of the 1st Respondent.

15)The 1st Respondent on the 11th November, 2014 illegally and without due regard to
the legal consequences wrote to the 2nd Respondent, copied to the Claimant,
purporting to return the Claimant to the 2nd Respondent for redeployment effective
1st December, 2014. [Annexed and marked “RMA-10” is a copy of the said letter]

16)On the 11th November, 2014, the 1st Respondent unlawfully purported to terminate
the secondment and as such, wrote a letter to the Claimant informing him of its
illegal decision. [Annexed and marked “RMA-11” is a copy of the said letter]

17)That on the 11th December, 2014, the 2nd Respondent acting in ultra vires, wrote to
the Claimant threatening him with the deletion/removal of his name from the payroll
if he fails to report to the 2nd Respondent offices for redeployment. [ Annexed and
marked “RMA-12” is a copy of the said letter]

18)On the 18th December, 2014, the 2nd Respondent wrote to the Claimant informing him
that he had deserted duty and as such he had been deleted from the payroll. [
Annexed and marked “RMA-13” is a copy of the said letter]

19)The Claimant was last paid his salary in November, 2014. [Annexed and marked
“RMA-14” is a copy of his payroll]

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20)The Claimant reported for duty to his employer, the 1st Respondent, and he found his
office occupied by another person and his belonging removed and when he sought
explanations as to why he was denied access to his office, he was informed that he
has since been dismissed from employment.

21)The 1st Respondent contributed 21% of the basic pay from 1st July, 2010 to a private
pension scheme amounting to Kshs 63, 840 per month while the 1st Respondent
used to deduct Kshs 16,030 from the Claimant’s salary monthly towards the private
pension scheme as the Claimant’s contribution.

SUBMISSIONS
22)The Claimant brings this claim under the Employment Act which provides that that
an employee can dispute facts giving rise to summary dismissal and termination of
employment.

23)Bearing on the above stated facts, the Claimant avers that the 1st Respondent’s
actions in purporting to illegally return him to the 2nd Respondent for redeployment
were unlawful and terminating his employment were also not on justifiable grounds
and the 1st Respondent constructively terminated the Claimant’s services without
reasonable cause and/or declared him redundant unprocedurally and unlawfully.

24)The Claimant further avers that the 2nd Respondent’s actions in purporting to
terminate his employment were unlawful and the 2nd Respondent was acting in ultra
vires since it had no powers to terminate his employment.

25)There was no privy of contract between the 2nd Respondent and the Claimant since
the Claimant was not employed by the 2nd Respondent and as such, the 2nd
Respondent cannot purport to terminate his employment to the 1st Respondent.

26)The Claimant served the 1st Respondent with utmost loyalty but the 1st Respondent
did not appreciate his services and instead unfairly dismissed him from
employment.

27)Before the said dismissal of the Claimant, the Claimant was never issued with a
show cause letter to that effect and no hearing of whatever nature was conducted
by the Respondent before the Claimant was dismissed from his employment.

28)The Claimant is a young man aged 32 years old and still had 33 years to work for
the 1st Respondent since he was employed on a permanent and pensionable basis.
His only source of income has been unlawfully, unprocedurally and unexpectedly cut
short. His career and dreams have been dashed due to the unfair dismissal from
employment.

29)The Claimant has lost the legitimate expectation of earning and as a result of his

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 unfair dismissal; the Claimant has been financially crippled and emotionally
destabilized.

30)The Claimant further avers that the 1st and the 2nd Respondents’ actions against him
were actuated by bad faith, malice, and spite and only intended to discard the
Claimant from his employment not withstanding his good work relationship and
values.

31)That upon such dismissal, the Claimant has not been paid any severance for his
completed years of service, any outstanding dues and benefits accrued/owing due
to his years of service.

32)Unless this Honourable Court intervenes and grants the prayers sought, the
Claimant will suffer irreparable harm. Further to the foregoing, the Claimant has
been exposed to mental anguish, torture, inconvenience and/or has compromised
his station of life since this was his only source of income.

33)The Claimant’s claim against the 1st Respondent is for the payment of the
outstanding terminal dues as follows:-

(i) Damages for unfair termination:

Kshs 304,000 x 12 Months = Kshs. 3,648,000
(ii) One month salary in lieu of notice: Kshs. 304,000
(iii) Loss of income for the unexpired contract period:
Kshs 304, 000 x 12 x 28 years = Kshs.
102,144,000
(iv) Pension contributed by both the Claimant and the Employer:
Employer contribution from 1/7/2010 Kshs. 63,840 x 51 months
Kshs. 3,255,840
Claimant contribution from 1/7/2010 Kshs 16,030 x 51 months
Kshs. 817,530
(v) Service gratuity for the years worked:
Kshs 152, 000 x 4 = Kshs. 608,000

(vi)Refund of the Staff Benevolent Fund:

Kshs. 1,000 x 51 months = Kshs. 51,000
(vii) Annual Leave due:
Kshs 10,640 x 40 days = Kshs. 425,600

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TOTAL Kshs. 111,253,470

34)That no reason has been advanced by the 1st Respondent to the Claimant or other
employee of the 1st Respondent why the Respondent had failed neglected and/or
refused to make good the Claimant’s dues. In entirety the 1st Respondent’s acts are
a flagrant breach of the terms and conditions on which the said contractual
relationship had been established.

35)The Claimant’s principal claim against the 1st Respondent is therefore for the sum of
Kshs. 17,621,970

RELIEFS SOUGHT
36)In view of what is stated herein above, the Claimant prays that this Honourable
Court do make/issue the following orders:-

i) A declaration that the termination of the Claimants’ employment and/or

dismissal was unfair.
ii) A declaration that there was no privy of contract between the Claimant and the
2nd Respondent.
iii) A declaration that the 2nd Respondent acted in ultra vires in purporting to
terminate the Claimant’s employment to the 1st Respondent.
iv) An order directing and/or compelling the 1st Respondent to pay the Claimant the
calculated sum being Kshs. 17,621,970 as particularized in paragraph 33 of the
statement of claim with interest at court rates from the date of filing of this suit.
v) An order directing and/or compelling the 1st Respondent to issue a Certificate of
Service to the Claimant in accordance with Section 51 of the Employment Act,
2007.
vi) An order that the costs of this suit be awarded to the Claimant with interest
thereon at court rates from the date of filing of the claim.

37)Despite demand having been made, the 1st Respondent has neglected refused
and/or failed to settle the amount due. . [Annexed and marked “RMA-13” is a copy of
the said demand letter]

38)There is no pending suit and that there have been no previous proceedings in court
between the Claimant and the Respondents in relation to this matter.

39)The matter arose in Nairobi within the jurisdiction of this Honourable Court.

Dated at Nairobi this day of 2015

ASHITIVA & CO. ADVOCATES

ADVOCATES FOR THE CLAIMANT

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DRAWN & FILED BY:-
Ashitiva & co. Advocates
Victoria Towers, First Floor
Upper Hill, Kilimanjaro Avenue
P.O Box 21372-00100
e-mail: info@ashitivaadvocates.com
NAIROBI

TO BE SERVED UPON
1. Sacco Societies Regulatory Authority
Britak Centre, Upper Hill, 1st Floor
P.O Box 25089 – 00100
NAIROBI

2. Ministry Of Industrialization And Enterprise Development Social Security House,

Block A, 17th and 23rd Floor
P.O Box 30418-00100
NAIROBI

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 REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI
CAUSE NO. OF 2015

RENOLD MBECHE ALWANG’A ……............................................................... CLAIMANT

VERSUS

SACCO SOCIETIES REGULATORY AUTHORITY…………....…. 1ST RESPONDENT

MINISTRY OF INDUSTRIALIZATION AND ENTERPRISE DEVELOPMENT
…………………………………………………………………………….. 2ND RESPONDENT

VERIFYING AFFIDAVIT

I, RENOLD MBECHE ALWANG’A, a resident of Nairobi City County and of P.O Box No.
21372-00100, Nairobi in the Republic of Kenya do hereby make Oath and state as
follows:

1. THAT I am the Claimant herein, well versed with the facts herein and hence competent
to swear this affidavit.

2. THAT I verify that the entire contents of the Claim filed herein are true

3. THAT what is deposed to hereinabove is true to the best of my knowledge.

SWORN at NAIROBI this ……..…. day of …………….2015

RENOLD MBECHE ALWANG’A ) …………….…………………

) DEPONENT
BEFORE ME; )

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 )
)
)
COMMISSIONER FOR OATHS

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