Lawyer loses bid to attach assets over Sh34m salary claim

A High Court judge has restrained a prominent criminal lawyer from attaching assets of the Ethics and Anti-Corruption Commission to recover Sh34 million he was awarded for wrongful termination of employment.

Mr Pravin Bowry served as assistant director of the defunct Kenya Anti-Corruption Commission but his contract was terminated after that commission was replaced with the Ethics and Anti-Corruption Commission.

He was to serve the commission from June 1, 2010 for five years up to June 30, 2015, but was sent packing on September 1, 2011.

On December 18, 2013, the Industrial Court awarded him a lumpsum salary of Sh34.6 million for the remaining term of his five-year contract.

After his efforts to enforce the decree were frustrated by the new commission, he asked the High Court to let him attach the assets of the commission and auction them to recover his dues.

He told Justice Isaac Lenaola that his rights to equal benefit of the law and protection from discrimination were violated. He said his right to enjoy the fruits of his successful litigation was being curtailed.

ASSETS AUCTIONED

Mr Bowry had insisted that ethics team was not a government agency but an independent commission and should be able to pay its debts or its assets be auctioned.  

He urged Justice Lenaola to declare that the commission had no constitutional authority to stop a successful litigant from enforcing a judgment or attachment of its assets.

But the judge, on May 29 concurred with the commission that Mr Bowry had not advanced plausible grounds to be granted what he wanted.

The judge further observed that Mr Bowry and commission were aggrieved by the Industrial Court judgment and were both challenging its findings in the Court of Appeal.

He ruled that it was only fair and reasonable to wait for the conclusion of the pending appeal.

Mr Bowry, together with former anti-graft agency director Patrick Lumumba and his three other deputies, Dr John Mutonyi, Prof Jane Onsongo and Mr Wilson Shollei, were ordered to vacate office to give room to the newly appointed commission officers.

Mr Bowry moved to the Industrial Court seeking Sh82 million as the total value of the remaining period of his contract.

He sought payment for unpaid salary, gratuity allowances, medical bills and insurance among other remunerations for the period he would have served the commission.

The commission had argued that Mr Bowry’s employment was terminated lawfully and was paid Sh3 million winding up allowance.

The lawyer argued that upon his appointment to the commission, he remained the sole proprietor of his law firm where he earned a considerable income for his family expenses.

He, however, said he decided to sell the legal office after he was assured he would serve his full term at the anti-graft agency.

But Justice Nduma disagreed with the commission that Mr Bowry’s office was affected by the new legislation, saying his termination would have been conducted in accordance with his contract and the employment law.

He said the contracts of service of the commission director and deputy director had a specific clause that provided for compensation for the unexpired term in case of premature termination.

However, he noted that the clause in respect of Mr Bowry’s contract was removed by commission’s advisory board and asked why the same clause was retained for the two assistant directors — Mr Mutonyi and Mr Shollei — who received full remuneration for the balance of their contractual term.