BY SAM ALFAN.
The Employment court has suspended the interdiction of director of legal affairs at Kenya Medical Supplies Authority (KEMSA) Fredrick Wanyonyi Simuyu.
Employment and Labour Relations Court Judge Maureen Onyango issued the temporary orders after Simuyu rushed to court.
“The letter of interdiction dated August 25, 2020 is hereby stayed as it does not comply with paragraph 21.17 of the KEMSA Human Resources Polices and Procedures Manual which provides that interdiction is to be resorted to only where investigations are being conducted that may lead to an Officer’s interdiction and for a period not exceeding 3 months,” ordered the judge.
Simiyu through his lawyer Bryan Khaemba sought an order to suspend the implementation of the decision contained in a letter by the board purporting to interdict him.
“Court be pleased to issue a temporary injunction restraining KEMSA Board of directors and acting Chief executive officer from proceeding with any further disciplinary proceedings against the Claimant based on reasons as contained in the letter of August 25, 2020,” he urged the court.
Lawyer Khaemba urged the court to temporarily injunct the board from proceeding with any further disciplinary proceedings against Simuyu based on reasons as contained in the letter.
Khaemba told the court that due to the serious challenges paused by the Covid-19 pandemic, several donors led by the World Bank have responded by availing funds to enable the country meet various mitigating and preventing measures, key among them being the procurement of face masks, personal protective equipments (PPEs), ventilators, body suits and gloves.
The said funds have continuously been channeled through KEMSA, being the government body responsible for procurement, warehousing and distribution of drugs and medical supplies to prescribed public health programs, the national strategic stock reserve, prescribed essential health packages and national referral hospitals.
However, in the recent days he said, reports have emerged showing how KEMSA is alleged to have superintended over unlawful spending spree of the donor funds by buying Personal Protective Equipment (PPEs) at inflated prices almost double the market price.
The agency is also accused of utilizing the donor funds to pay for items procured without the approval of the Ministry of Health, diverting large consignments of masks and ventilators donated by the international community to private warehouses upon arrival in Nairobi.
He claims that following the appearance of the said information in the media, the Chairman of the Board addressed a management meeting, which he convened on August 24.
The chairman allegedly sought to know the persons who leaked information on misappropriation of Covid-19 funds to the public and having failed to get an appropriate answer, he ended the meeting by stating that he was aware of the person who leaked the said information.
He further claims that the Chairman Kembi Gitura went further and issued threats to sack the unnamed person for leaking the information.
The following day on August 25, the company secretary was served with an interdiction letter citing his failure to properly advice the management and the Board in regard to award of contracts and divulging information to unauthorised persons through leaking of KEMSA’s reports, documents and communications.
“It is therefore beyond doubt that the decision to indefinitely interdict the company secretary was a punitive measure for reasons that he is alleged to be the person who had leaked the information on the misappropriation of Covid-19 funds to the public and the loss of Covid-19 funds is a serious issue that has gotten the attention of the international community, with the World Health Organization likening it to murder” he adds.
He state that following the magnitude and sensitivity of the alleged misappropriation of the Covid-19 funds, President Kenyatta ordered the Ethics and Anti-Corruption Commission (EACC) and the Directorate of Criminal Prosecution (DCI) to investigate the matter and report to him within 21 days from 21, August, 2020.
“Meanwhile, due to the said mismanagement of the Covid-19 funds, the Global Fund and the USAID have now threatened to withdraw funds that Were meant to support HIV/AID, Tuberculosis and Malaria programs for the next 3 years thereby putting lives of millions of Kenyans at risk and going by the gravity of the alleged misappropriation of Covid-19 funds, even if it was true that it is the Claimant who was the whistle-blower of the issue at hand, which is vehemently denied, that cannot in itself be a basis to justify the decision to interdict him” adds Simiyu.
He adds that the issue of award of contracts falls within the mandate of the directorate or department of procurement of which he has a very limited role to play and in any event, KEMSA already sought the legal opinion of the Attorney General on procurement procedures applicable to urgent purchases to deal with Covid-19 pandemic.
He further stated that through a letter dated April 17, the Solicitor General gave KEMSA an elaborate advisory on procurement procedures to follow while making purchases to deal with Covid-19 and having been properly advised by the Government’s Chief Legal Officer, the Respondents herein cannot seek to blame the Claimant in the event that they made procurements outside the advisory of the Attorney General.
He claims that his interdiction of Simiyu is an outright punitive sanction whose main objective is create a cloud of cover over investigations into the mismanagement of the Covid-19 funds.
Lawyer Khaemba adds that the interdiction of Simiyu was unfair, unlawful and unconstitutional as it is an end in itself, it makes no reference to a pending disciplinary hearing, it is indefinite and he has not been asked to make any representation which amounts to the Claimant being condemned unheard.
