GAZETTE NOTICE NO. 2164

the following names as supplementary to the original referred to the list of valuers. Name Address Qualifications Kimutai J. R. Wamae P.M. Nyororo N. Caroline Oindo J. Mogambi Mbugua J. Kariuki P.O. Box 4948-00100, Nairobi P.O. Box 103104, Nairobi P.O. Box 70755, Nairobi P.O. Box 66283-00800, Nairobi P.O. Box 4686, Eldoret BA (Land Econ) Hons MISK BA (Land Econ) Hons MISK BA (Land Econ) Hons MISK BA (Land Econ) Hons MISK BA (Land Econ) Hons MISK Dated the 24th June, 2008. T. W. KIMONDIU, Registrar. GAzErrENancE No. 5432 THE ENVIRONMENTAL MANAGEMENT AND CO-ORDINATION ACT (No. 8 of 1999) THE NATI9NAL ENVIRONMENT MANAGEMENT • AUTHORITY ENVIRONMENTAL1MPACT ASSESSMENT STUDY REPORT FOR THE PROPOSED SEA SUBMARINE CABLE SYSTEM AT MOMBASA INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of the Environmental (Impact Assessment and Audit) Regulations, the National Environment Management _Authority (NEMA) has received an environmental impact assessment study report for the implementation of the proposed sea submarine system. The project in Kenya is made up of two components: Marine and Terrestrial. The marine components consist of the marine fibre optic cable from the point at which it enters Kenya's Teiritorial waters (12 nautical miles offshore), to landfall at Mombasa, and to the point of _ connection with the terrestrial component of the project at Swahili Cultural Centre., The landing site is to be located in coastal town of Mombasa and the exact location of the onshore terrestrial component will be 04 03.707 S, 39 40.814E, at Swahili Cultural Centre. The project anticipates the following impacts and mitigation measures. Possible impacts Mitigation measures 1.Sea floor disturbance • The laying of the cable will be conducted in a professional manner to reduce sentiment disturbances to as minimal as possible. The, burial technique of the cable will ensure that the trench excavated by a sub- sea plough is able to support the excavated material until the cable is positioned in the trench, thereby allowing the seabed material to fall back into trench, covering the cable minimal sediment disturbance. 2.Maritime traffic • The project proponent will liaise with the Kenya Ports Authority and the Kenya Maritime Authority to inform all ships plying the route of the cable laying vessel, of the activities taking place along ri route. 3.Electromagnetism • The cable manufacturers will ensure that the cable is designed so that these electromagnetic field emissions are minimum. 4.Visual impact • 5.Seafloor trenching impact; • The onshore cable station will be architecturally designed to blend in with the surrounding environment. The trenching effect and associated impact is unavoidable. However, the trench will not be of such magnitude as to cause excessive sedimentation, benthic disruption or siltation The trench will be shallow, one or two metres depth and approximately one metre width. 6.Noise impacts •Noise reduction will be undertaken by ensuring that all the equipment in use like generators, fleet vehicles are equipped with noise mufflers to reduce noise disturbances. 7. Sub sea cable strumming • When crossing hard bottom areas where burial is infeasible and 27th June, 2008 THE KENYA GAZETTE 1597 Possible impacts Mitigation measures anchoring or bottom-fishing gear is expected, typically "armoured" cable will be used to reduce the "summing effect" of rhythmic lateral movement of the cable across seabed. 8.Loss of cultural assets • An archaeological survey has been conducted by National Museums of Kenya archaeologist and the results will be used to avoid or minimize any damage to any such artifacts and the relic underground structures during construction. 9.Impact on anchorage • Through the Kenya Maritime Authority, fishing trawlers and other vessels will be informed of the co- ordinates- of the marine cable, allowing them to avoid it and prevent damage from anchors and fishing gear. 10.Impacts on fishing • The timing of construction activities to avoid peak tourist seasons, _protecting and restoring coastal areas (including trees), and avoiding fisheries areas will all be considered, to the extent feasible. The- Kenya Maritime Authority will also be contacted and informed of planned construction or operations activities, ' so that they can plan adequately. The full report of the proposed project is available for inspection during working hours at: (a)The Director-General, National Environment Management Authority, Kapiti Road, off Mombasa Road, P.O. Box 67839- 00200, Nairobi. (b)The Permanent Secretary, Ministry of Environment and Natural Resources, National Hospital Insurance Fund Building, Community, 4th Floor, P.O. Box 30521, Nairobi. (c)Provincial Environment Officer, Coast province. (d)District Environment Officer, Mombasa District. The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General; National Environment Management Authority, to assist the authority in the approval process of the project B. M. LANGWEN, for Director-General, National Environment/Management Authority. GAZbi it NOTICE No. 5662 THE COMPANIES ACT (Cap. 486) PAYMENT OF DIVIDEND NOTICE is given •that the Deposit Protection Fund Board, in exercise of the powers under rule 107 of the Companies (Winding-up) Rules, shall with effect from 7th July, 2008, appoint the liquidation agent of Trust Bank Limited (in liquidation) to pay a second dividend to all depositors and creditors who have proved their debts. Payments will be made during working days (Monday to Friday) at the institution's offices on the 3rd Floor of the Central Bank of Kenya, , Head office, Nairobi, between the hours of 9.00 a.m. and 4.00 p.m. "Depositors and other creditors who have already lodged their claims automatically qualify for the second dividend and need not claim again. Dated the 19th June, 2008. K. CHELOTI, Director, Deposit Protection Fund Board. GAzhi r.NaricE No. 5663 IN THE INDUSTRIAL COURT OF KENYA AT NAIROBI CAUSE NO. 1 OF 2004 UNION OF NATIONAL RESEARCH INSTITUTES STAFF OF KENYA—(Claimants) VERSUS KENYA TRYPANOSOMIASIS RESEARCH INSTITUTE— (Respondents) Issue in Dispute: "Wrongful termination of Mr. Antony Omarana Esilo" AWARD On 16th December, 2003, the Minister for Labour referred this dispute to the court for consideration and determination in exercise of the powers vested in him by section 8 of the Trade Dispute Act, Cap 234, Laws of Kenya (which is hereinafter referred to as the Act). The reference together with the statutory certificates from the Labour Commissioner and the Minister himself were received on 6th January, 2004. The dispute was listed for mention on 22nd January, 2004 when Mr. Z. Achacha appeared for the union and Mr. Munene Advocate appeared for the Respondent. On this day the union was directed to file its memorandum on or before 20th February, 2004 and the Respondent to file its reply on or before 5th March, 2004. The dispute was fixed for hearing on 6th April, 2004. This hearing date was later re-scheduled to 17th June, 2004. On 17th June, 2004 the heating of the dispute was adjourned by consent as the union's Secretary General was indisposed following a road accident. The dispute was listed for mention on 7th September, 2004. On 7th September, 2004, the union was represented by, Mr. J.O.B. Otieno, whereas there was no appearance for the Respondent. The case was listed for further mention on 22nd September, 2004 for directions pursuant to a letter from Kenya Agricultural Research Institute dated 30th August, 2004. On 22nd September, 2004 the union was again represented by Mr. Otieno whereas the Respondent was represented by Mr. Oluoch a legal officer from Kenya Agricultural Research Institute (K.A.R.I.) who informed the court that KARI was in the process of merging with the Respondent. He applied for a stay of proceedings pending the finalisation of the 'merger'. Consequently the court listed the dispute for further mention on 22nd October, 2004. On this day the union was fepresented by Mr. Otieno but there was no appearance on the part of the Respondent. The Respondent failed to attend mentions on 5th November, 2004 despite being served with a hearing notice. The court fixed the case for hearing on 1 1 th February, 2005 and ordered that a hearing notice be served on the Respondent, KARI and the advocates who had appeared for the Respondent. On 11th February, 2005, Mr. Otieno appeared for the union but there was no appearance on the part of the Respondent although a hearing notice had been served appropriately. - The dispute was listed for further mention on 9th March, 2005 when the Respondent failed to turn up again despite being served With a hearing notice. The court then proceeded to fix the dispute for hearing on 26th April, 2005 and ordered that the Respondent, KARI and the said Advocates be served with hearing notice. On the said hearing date the Respondent again failed to appear despite service of hearing notice as ordered by the court. The union applied for the heating of the dispute 'exparte in the aforesaid, circumstances and the court granted the application and proceeded to hear the suit ex-parte on the same day. The union relied on its memorandum filed in court on 20th February, 2004 and the oral submissions made in the course of the hearing. It was submitted by the union that the grievant was employed on 3rd June, 1987 as a vehicle mechanic grade III but he was assigned duties of mechanic-cum driver when he reported for wont. He served the Respondent until 19th January, 1996 when he was served with a letter of dismissal from duty dated 19th January, 1996 on the grounds of alleged involvement in a major financial scandal that had resulted in loss of money and equipment by the Respondent. The letter informed him that he would be invited by the Board of Management for an interview in February 1996 who will make a final decision after full investigations into the matter, The grievant appealed in writing to the Chairman of.ICETRI Board of Management but he received no reply. He also appealed to the Permanent Secretary, Ministry of Research and Technology. On 10th February, 1996 he received a letter from the Respondent's director interdicting him until further notice. In the same letter he was summoned to appear before the Respondent's committee on 22nd February, 1996 to explain purchases and whereabouts of various items. The committee was composed of the Respondent's Accounts Controller, Research Officers, Internal Auditor and Senior Maintenance Officer. After answering questions posed to him by the committee he was verbally told that the committee had found nothing to support the actions taken against him. He was told to wait for a formal written communication of this position. In preparation for the promised meeting with the Board of Management the grievant wrote to the Respondent on 12th February, 1996 seeking to be provided with photocopies of documents in respect of the purchases he had been referred to. He received no response. On 23rd March, 1996 he was instructed in writing not to leave his office during the working hours, and he reported for work regularly up to April 1992 when he was served with a letter purportedly terminating his services. Mr. Otieno further submitted that the grievant was never charged with any offence in respect of the alleged losses before any court of law. He sated that the' grievant was a victim of a power struggle between the Respondent's Director and his deputy, which struggle ended with the deputy assuming the Director's job. He said after the said leadership change the grievant was approached by senior administration officials to record a false statement implicating the former director in fraud and mismanagement of the Respondent's property. He refused to do this and was consequently dismissed. He also attributed the dismissal to discrimination on ethnic grounds. In support of these assertions the union submitted that the grievant had a clean record in the 10 years he worked for the Respondent. He received no written or verbal warning. The union went on to submit that the dispute was reported to the Minister who after investigations released the following finding and recommendations: Findings: Investigations established that Mr. Esilo commenced working for the respondent on 3rd June, 1987 doubling as a mechanic cum driver. However, he later performed duties of the latter post and was attached to the former director of the Institute who lost his job. Investigations further established that the grievant's services were terminated on 9th April, 1997 at the behest of the management who orchestrated the grounds within which to validate their action. During the investigations, it became crystal clear that during the ten (10) years the grievant served Kenya Trypanosomiasis Research Institute, he was diligent, honest and hardworking. The fact that he received no verbal or written warning attests to the foregoing. In appreciating both parties submissions as read together with these findings, one is inclined to agree with the claimant's contention that fraud/theft by servant, the offences which the grievant was alleged to have committed are criminal in nature. It was therefore prudent for the management to make a formal report to the local police and let the law of the land take its course. In usurping the powers of the police and the courts, the management acted unlawfully and the grievant's termination should be viewed on the same breath. Recommendation: After a careful examination and consideration of both parties submissions coupled with the above findings, I hereby recommend that the termination of the grievant be found wrongful. Mr. Esilo should therefore be paid, all his terminal dues including those that accrued during the interdiction period. In addition, he should be paid an additional six (6) months salary as compensation for wrongful termination. 27th June, 2008 Finally, I appeal to both parties to accept these recommendations as a basis of settling this dispute". The grievant also appealed to the Office of the President, which on 1 1 th November, 1999 advised him to wait forthe decision of the Management Board of the Respondent or seek legal advice if a decision of the, Board had been communicated to him. The Management Board never summoned him to appear before it as promised. The union prayed to the court to award as follows— (a) Unconditional reinstatement of the grievant to his former job without any loss of benefits including yearly increments plus full payment of salaries and allowances for the whole duration that he has been out on wrongful dismissal. or in the alternative (i) All terminal dues due to the grievant including those that accrued during the interdiction period. (ii)- six months basic pay in lieu of notice as per section 2.11(b) of the Respondent's employee's terms and conditions of service (iii)Twelve months salary compensation for wrongful' dismissal. (iv)severance pay of three months pay for every completed year of service. (v)pension from provident Fund. The Respondent did file a reply to the union's claim but since the Reipondent failed to appear in court during the hearing to prosecute its case; the union's case now stands unchallenged. In a properly handled disciplinary case dismissal or any other t, sanction inflicted on an employee ought to be precede by interdiction or suspension followed by thorough investigations in the allegations made against the employee. The investigation must include giving the concerned employee an opportunity to explain or answer the charges against him as demanded by the rules of natural justice. It is only after taking the aforesaid measures that an employer can impose disciplinary sanctions on the employee. In this case the dismissal was effected before investigations were conducted into the allegations made against the grievant. Later •when the Respondent realized it had made a blunder the grievant was interdicted to facilitate investigations. Eventually he was terminated after more than one year of interdiction. This was done despite the fact that the Respondent's management committee cleared him of any wrongdoing. Furthermore he was not granted a hearing before the Respondent's management Board which is the Respondent's highest decision Making authority, although he had been promised such a hearing. This implies that the grievant was denied a hearing contrary to the principles of natural justice, which dictate inter alias that one has to be given khearing before any adverse action is taken against one. The unwavering position of this court is that any termination effected in violation' of the rules of natural justice is unlawful. We therefore have no hesitation in finding that the termination is also unlawful on the premises that the grievant's termination was unlawful, as no reasons for the termination have been given. On the basis of the foregoing remarks we find that the union has proved its case against the Respondent. The union has demanded the reinstatement of the grievant without any loss of benefits, but in view of the long time that has passed since the grievant's termination we do not find reinstatement as an appropriate remedy. We shall instead award the grievant the maximum compensation for loss of employment prescribed by the Act and other remedies. In the circumstance we order the grievant to be paid the following — (a)one month's salary in lieu of notice; . (b)all salaries and allowances that accrued to the grievant while under interdicticm. (e) Twelve (12) months salary being compensation for wrongful loss of employment. (d) Full pension benefit due to him under the Respondent's pension scheme. If the parties cannot agree on the computation of the grievants dues either party is at liberty to apply to the court to compute the same. Dated and Delivered at Nairobi this 16th day of June, 2005 JUSTICE PAUL K. KOSGEI, Judge. M.A. WARRAKAH, A.O. WAFULA, Members. GAzurrE NOTICE No. 5664 THE HIRE PURCHASE ACT (Cap. 507) JARIBU CREDIT TRADERS LIMITED RECONCIUATION OF DEBTORS BOOK TAKE NOTICE that Jaribu Credit Traders Limited intends to reconcile it debtors book following loss of its files and computer server which contains sales data and customers' particulars in accordance with section 9 (1) of the Hire Purchase Act. , As,provided for in section 29 (b) of the Hire Purchase Act, all hire purchase customers and guarantors with genuine refund claims are notified to file their particulars including any claims for refunds at the company's head office at Ramboo Furniture House, along Mombasa Road, within fourteen (14) days herein failure to which the customer or guarantor shall be deemed to have forfeited the refund. Dated the 13th June, 2008. B. S. MASAKA, Operations Manager. Jaribu Credit Traders Limited.