Court orders IEBC to reinstate suspended Marjan’s deputy

The Employment and Labour Relations Court yesterday reinstated suspended Independent Electoral and Boundaries Commission (IEBC) deputy chief executive officer Ruth Kulundu.

Justice Linet Ndolo ruled that IEBC chief executive officer Marjan Hussein Marjan violated IEBC Human Resource policy in interdicting his deputy, saying he acted as the prosecutor and executioner.

The judge issued the ruling in a case filed by Kulundu who challenged the interdiction saying it was done unlawfully.

She claimed that she was issued with the suspension letter signed by three out of seven commissioners yet the decision to suspend her ought to have been unanimously made by all the commissioners.

Justice Ndolo stated that the IEBC chief executive acted in excess of his powers to purport to interdict Kulundu from her employment without the approval of a majority of commissioners.

Gross misconduct

Marjan had issued two show-cause letters to his deputy accusing her of intimidation of staff, insubordination, impersonation, breach of confidentiality and for illegally arranging a meeting of the “Cherera Four” commissioners.

In the meeting, the four commissioners – deputy chair Juliana Cherera and commissioners Irene Masit, Francis Wanderi and Julius Nyang’anya – who disputed the 2022 presidential election results, picked law firms that would represent the commission in the consolidated presidential election petition filed by Azimio la Umoja One Kenya presidential candidate Raila Odinga.

Marjan also accused her of impersonating him and usurping his responsibilities by performing duties bestowed on the CEO’s office.

In the show-cause letter dated August 29, 2022, Kulundu had been given 14 days to respond to the allegations that Marjan termed as “gross misconduct and a serious violation of her employment contract”, whose consequences included dismissal from service if found culpable.

While issuing the ruling yesterday, Justice Ndolo noted that it appeared that breach of confidentiality was abandoned along the way as the interdiction letter dated September 19, 2022, did not mention the charge.

According to the judge, it appeared that the allegations were a witch-hunt and the CEO could not have taken action without proof.

Justice Ndolo noted that the then IEBC vice-chair  Cherea had given a blow to blow account of what happened.

“They wrote a memo dated August 23, 2022 requesting the IEBC Chair Wafula Chebukati to facilitate a list of advocates to act for them but he did not reply. It was the IEBC Vice-Chair Cherera who instructed her to attend the meeting and take minutes,” noted the Judge.

Justice Ndolo further noted that Marjan and former chair Chebukati did not swear affidavits in the case; instead it was two employees who swore affidavits which were similar.

Two factions

She noted that the allegation of intimidation of staff was unsubstantiated as none of employees who were alleged to have been threatened swore an affidavit about the purported threats.

The judge also noted that there was no disciplinary committee which was constituted for hearing of the allegations leveled against her.

“It is a matter of public notoriety that the court takes judicial notice that there was a major split of two factions of Chebukati three and Cherera four. This created a toxic working relationship for employees,” said the judge.

“It was expected that the CEO Marjan would have injected alkaline instead it appears he was sucked into the split which was a manifestation for the split…. He was the prosecutor and executioner …In light of the verdict, the balance tilts in the petitioner’s favour,” said  Justice Ndolo.

The judge ruled that Kalundu had made a proper case and ordered her reinstatement.