A court case in which a legal officer at the Ethics and Anti-Corruption Commission (EACC) is seeking to stop her employer from proceeding with a disciplinary process against her over alleged gross misconduct, has lifted the lid on how rogue officials in the investigative agencies collude with suspects to defeat justice.
The matter has now landed in court and will be heard on February 28. Damaris Ndinda had been a subject of internal disciplinary process after she allegedly colluded with suspected fraudsters in a case (ELC No. 39 of 2018) where the Twalib Mbarak-led commission has been fighting to recover Machakos prison land allegedly grabbed by private investors.
The rot was exposed after Ndinda had an altercation with her supervisor over promotion, which according to EACC was affected by a negative report based on how she had handled the Machakos Prison land case, which the commission filed in 2018.
Ndinda was accused by her employer of failing to file defence against counterclaims exposing the EACC to a possible loss of Sh36 million.
“It was during her handling of this case that she is said to have entered into a consent allowing parties to amend pleadings without authority of her supervisor. She also did not oppose an application to introduce three additional defendants for which the Commission had not conducted investigations as well as failing to file a response to amended defenses and counterclaims thereby exposing the Commission to a judgment in default of defense to Sh 36 million,” EACC says in it’s defense in the case.
But instead of giving the disciplinary course a chance, Ndinda has moved to court where she has obtained orders from the Employment and Labour Relations Court to stop EACC from taking disciplinary action against her.
Ndinda has in court documents filed through her lawyer Muma&Kanjama Advocates described the actions by EACC as unconstitutional on grounds that they are impeding on her rights and mechanisms used by EACC in handling her case are unprocedural.
“Under Article 19, of the Constitution, fundamental rights and freedoms belong to an individual and are not granted by the state. In addition, Article 19 provides that the purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and to promote social justice an realization of potential of all individuals,” he argues in the court documents dated December 23, 2021.
Ndinda says she was not accorded fairhearing and to make representation by the committee, saying every person “has the right to administrative action which is expeditious, efficient, lawful and reasonable and procedurally fair”
Amend pleadings
Ndinda, according to EACC was entrusted to help the agency pursue the case but neglected to defend and safeguard EACC interests in handling a case by unilaterally recording a consent in court allowing parties to amend pleadings and consenting to three parties with no registrable interest being joined in the suit.
Her conduct is reported to have affected her promotion after it is captured in her appraisal. But Ndinda lodged a formal complaint alleging alteration of the appraisal form for 2019-20 financial year without her knowledge and involvement.
But an internal investigation established that Ndinda had also discussed the alleged alteration of her appraisal form in a WhatsApp group for EACC lawyers and made disparaging remarks against her supervisor.
She appeared before the internal investigation team on two occasions but despite cooperating during the first interview, she declined to be interviewed on how she had handled the Machakos Prison land matters by refusing to answer questions.
EACC initiated a special investigation into the issues raised and the investigations entailed documents analysis and interviews following which it was established that the allegation of alteration of her appraisal form was untrue.
Court records show she was issued with a notice to show cause on October 8, 2021 and she responded on October 25 but supervisors were dissatisfied with her response and recommended the matter be heard by the Commission’s Staff Disciplinary and Conflict Resolution Committee.
Ndinda was again invited to a disciplinary hearing on December 29 and 30, 2021 where relevant documents were made available to her and session was intended for her to explain further and to cross examine witnesses during the hearings. But she never attended the sessions and instead took her employer to court.
This is not the first time officers in the investigative agencies are being accused of colluding to defeat justice. In May 2019, the Director of Criminal Investigations George Kinoti disowned the manslaughter charge against top city lawyer Assa Nyakundi, interdicted senior investigating officers, and ordered a public inquiry into what he calls “major cover-up”.
