A court has sided with a former junior customs officer who was dismissed by the Kenya Revenue Authority (KRA) over a botched car auction, despite internal evidence placing responsibility on a senior manager.
The Employment and Labour Relations Court found that KRA unfairly dismissed Collins Bosire over the auction of an uninspected motor vehicle, even though he was not responsible for the error.
The dispute dates back to the auction of a Volkswagen Passat at the Kilindini Customs Warehouse in Mombasa in June 2016.
The vehicle was sold to a bidder for Sh1.1 million during a public auction. However, the buyer later discovered that it could not be registered because it had not been inspected and cleared by the Kenya Bureau of Standards (Kebs) before the sale.
The buyer subsequently lodged complaints and pursued legal action against KRA after Kebs declined to issue a certificate of roadworthiness.
Blame game
Investigations by KRA’s Intelligence and Strategic Operations Department eventually focused on Mr Bosire, who at the time served as a warehouse keeper.
The agency accused him of negligently including the vehicle in an auction list without obtaining the mandatory Kebs clearance. He was later dismissed in July 2021 for negligence and gross misconduct.
However, evidence presented in court painted a different picture of how the auction process worked and who was responsible for approving vehicles for sale.
Mr Bosire told the court that his role was limited to preparing an initial list of vehicles that had overstayed in the customs warehouse.
He said the final auction list was prepared and reviewed by the warehouse manager together with appointed auctioneers before vehicles could be offered for sale.
Court records show that KRA’s own witnesses largely supported that position.
The agency’s human resources witness admitted that Mr Bosire’s decisions were not final and that responsibility for the auction list rested with the warehouse manager.
The witness also confirmed that Pamela Ahogo, then acting Commissioner for Customs and Border Control, had formally recommended that disciplinary proceedings against Mr Bosire be dropped.
In an internal memorandum dated November 13, 2020, Ms Ahogo stated that warehouse procedures required the final auction list to be reviewed by the warehouse manager to ensure vehicles had been cleared by Kebs before auction.
“We therefore recommend that disciplinary action against Mr Collins Bosire be dropped, given that the accuracy of the auction list prior to offer is the responsibility of the Warehouse Manager,” she wrote.
Court findings
Another KRA witness, investigator Dominic Mwebia, acknowledged that statements obtained during investigations pointed to the warehouse manager as the officer responsible for reviewing the final auction list.
The court heard that Paul Boiyo, who headed the customs warehouse, told investigators that reviews and approvals were not the responsibility of the warehouse keeper.
Despite those findings, KRA proceeded with disciplinary action against Mr Bosire.
The warehouse manager identified in the proceedings was never subjected to disciplinary action and later retired from the organisation.
The court found that KRA had failed to explain why it ignored recommendations from the senior official directly responsible for customs operations.
“The Commissioner was not a peripheral actor in the respondent’s disciplinary architecture,” the judge said.
“Her considered recommendation that the disciplinary process against the claimant be discontinued, on the clear basis that the matters complained of did not fall within his mandate or responsibility, was therefore a material and weighty matter that could not lawfully or reasonably be brushed aside.”
The court further found that KRA failed to demonstrate that its disciplinary panel properly considered Mr Bosire’s defence before dismissing him.
A key factor in the ruling was KRA’s failure to produce minutes of the disciplinary proceedings.
Without the minutes, the court said, there was no objective evidence showing that the panel considered Mr Bosire’s explanations, the customs commissioner’s recommendation or other exculpatory material.
“The respondent’s conduct, in my view, betrayed an apparent determination to sanction the claimant irrespective of the operational realities placed before it by its senior officers,” the court said.
“To proceed with disciplinary action in complete disregard of that recommendation, and without demonstrating any rational basis for departing from it, rendered the process arbitrary, predetermined, and manifestly unfair.”
The court concluded that the dismissal was both procedurally and substantively unfair.
Mr Bosire sought Sh153 million from KRA, including Sh148.2 million in projected future earnings, arguing that the dismissal had destroyed his prospects of advancing to senior positions within the tax agency.
However, the court dismissed his claims for discrimination and future earnings, finding that he had not provided sufficient evidence to support them. Instead, the judge awarded him Sh3 million, equivalent to 12 months’ gross salary, together with costs of the suit and interest.
