Ojienda's law firm to pay lawyer Sh1 million in used condom and alcohol claims case

What began as a dispute over books worth Sh157,000 spiraled into a sensational courtroom battle filled with allegations of office misconduct, drinking, sexual encounters at the workplace, fraud claims, and threats against political ambitions.

At the centre of the case was lawyer Allan Muga, a former associate advocate at the law firm of Tom Ojienda currently Kisumu Senator, who successfully sued his former employer after the Employment and Labour Relations Court found his dismissal unfair.

Among the explosive allegations tabled before court was a claim by the law firm that on February 10, 2021, Muga under the guise of being registered for Huduma Number brought an unidentified female to the office and engaged in sexual activities and drinking alcohol with her. He was also accused of leaving a used condom in the office waiting lounge.

The accusation formed part of a broader catalogue of misconduct claims levelled against Muga by the law firm during the proceedings.

Despite the avalanche of allegations, Employment and Labour Relations Court Judge Agnes Nzei ultimately ruled that the actual reason used to dismiss Muga was never proved, paving the way for an award of Sh1.09 million in compensation and dues.

According to court documents, Muga had joined the firm in July 2018 as an associate advocate. He told the court he earned Sh192,138 monthly and that the agreement included a 20 per cent annual increment on the base salary.

He painted himself as a hardworking advocate whose performance had earned him recognition within the firm.

While defending himself against any wrongdoing, Muga accused the law firm of discrimination, claiming he was denied bonuses paid to other employees and that his salary was arbitrarily reduced during the Covid-19 period.

But beneath the professional accolades, the relationship between the lawyer and his employer appeared badly fractured.

In its defence, the law firm portrayed Muga as an employee whose conduct had become increasingly problematic. The firm claimed he regularly reported to work late, left early without explanation, came to work drunk, ignored court directions, mishandled client matters and became disrespectful toward authority.

The most controversial allegation, however, was the claim involving sexual activity inside the office.

According to the court record, the law firm alleged that Muga sneaked an unidentified woman into the office under the pretext that she was being assisted with Huduma Number registration.

Political ambitions

Instead, the firm claimed, the two drank alcohol and engaged in sexual activity in office and left behind a used condom in the waiting lounge.

The law firm also accused Muga of threatening to interfere with Ojienda’s political ambitions in an attempt to blackmail him for money. There were also allegations that Muga defrauded clients by collecting legal fees directly. The firm alleged that he fraudulently obtained more than Sh2 million from Lavington Security Limited on different dates while falsely claiming he was authorised to receive legal fees on behalf of the firm.

The law firm told the court that none of the money allegedly collected by Muga had been remitted to the office. It also accused him of misrepresenting his credentials during recruitment.

According to the firm, Muga falsely indicated in his job application that he had been admitted to the Bar in 2017 instead of 2018 and falsely claimed to possess a Master’s degree from the University of Nairobi.

The employer argued that the alleged misrepresentation enabled him to negotiate a salary higher than what he deserved.

“The Respondent discovered too late that the Claimant was a fraud from the word go,” the court documents stated.

Despite the numerous accusations, the court noted that the actual dismissal centred on the controversial purchase of books.

The law firm alleged that Muga ordered books worth Sh157,000 from publisher Jeremiah Wanga of Fame Book Stores using the law firm’s name for personal use and failed to pay for them, thereby embarrassing the firm publicly.

According to testimony presented in court, the dispute escalated after Wanga allegedly posted offensive tweets claiming the books had been ordered by Ojienda’s law firm.

The law firm argued that the online posts damaged its reputation. Witness Meso Oganda testified that Wanga shamed the firm through twitter posts.

But during proceedings, crucial weaknesses emerged in the employer’s case. Wanga himself contradicted the law firm’s account.

He testified that Muga personally ordered the books and paid for them in cash. He further stated that he had never sold books to Ojienda’s law firm.

“That the Claimant had ordered books from him and paid in cash,” the judgment noted.

Wanga also distanced himself from the alleged embarrassing online campaign. Cross-examined in court, he said he could not remember tweeting about Ojienda or the law firm.

The court further heard that although the law firm claimed offensive tweets existed, none were produced as evidence because they had allegedly been deleted.

Justice Nzei found this omission significant. “Nothing, however, was presented in evidence to show that the Claimant, indeed, ordered for the books in issue in the Respondent’s law firm’s name,” observed the judge.

The court also scrutinized the disciplinary process used before Muga’s dismissal and found major procedural flaws. Muga had denied ever receiving a show-cause letter or attending a disciplinary hearing.

The law firm insisted that it issued him with a notice to show cause on September 20, 2021 and later conducted a disciplinary hearing on September 28, 2021 before dismissing him the following day.

But Justice Nzei found that there was no proof the show-cause letter had ever been served on Muga - and neither the employer nor its witnesses could clearly explain how the letter was delivered.

Employment Act

Monica Waweru, the office administrator, admitted she did not know who dispatched it.

The court also examined minutes of the alleged disciplinary hearing and found them questionable.

The minutes had only been signed by Ojienda and not by Muga or other participants.

The judge concluded that the law firm failed to comply with Section 41 of the Employment Act governing disciplinary procedures.

“I make a finding that termination of the Claimant’s employment was procedurally unfair,” she held.

On the substantive reason for dismissal, the court found the employer equally failed.

“The books issue is shown to have been the sole reason for termination of the Claimant’s employment; and I am unable to find any evidence on record pointing to the validity of this reason,” Justice Nzei stated.

She therefore declared the dismissal both procedurally and substantively unfair.

“Termination of the claimant’s employment was, therefore, procedurally and substantively unfair. I so find and declare.”

Although the court rejected several of Muga’s financial claims, including alleged salary underpayments, it awarded him compensation equivalent to six months’ salary.

The judge accepted the employer’s position that his monthly salary was Sh120,000.

He was awarded Sh720,000 as compensation for unfair termination, Sh120,000 in lieu of notice and Sh252,000 for untaken leave days, bringing the total award to Sh1.092 million.