UNDT/2015/059, Mutiso
Receivability: The Tribunal concluded that MEU had taken a rather restrictive view of the nature of the Applicant’s request when it deemed it to be irreceivable. While it cannot be disputed that the Applicant requested closure of the investigation against him, and the investigation was closed, he also listed a number of instances that, in his view amounted to “violations of procedural fairness”. The procedural matters did not exist in a vacuum but were connected to the investigation. The closure of the investigation notwithstanding, the Tribunal found that there were still live issues that needed to be addressed. The Application was therefore found to be receivable. Pleadings: The Tribunal observed that the purpose of pleadings is to assist a court and the parties by averring concise statement of the facts on which the relevant party relies. Pleadings should clarify rather than obscure the issues in a case. Amending pleadings: The Tribunal concluded that the original pleadings already set out the cause of action of the Applicant and the facts upon which he was relying. Nothing new was added to the Motion except for a waiver of the issue of closure. There was neither a new claim in the Motion nor a different factual basis from that originally pleaded to justify the remedy prayed for. Delay in investigation: The Tribunal found that the delay of three years in completing the investigation was excessive especially since there was no valid justification for such a delay. Arrest and detention of 山Staff: The Tribunal concluded that when UNON DSS handed over the Applicant to the Kenya police without resorting to the proper procedure for waiver of immunity they were in breach of the rules governing the protection of a United Nations staff member as provided by the 1946 Convention on the Privileges and Immunities of the United Nations and thereby deprived the Applicant of his due process rights.
Accountability referral: the Tribunal referred the matter to the Secretary-General not for accountability under art. 10.8 of its Statute but to request that the Secretary-General investigate the situation in UNON so that appropriate remedial measures are taken for the protection of staff members and official based in Nairobi when placed in a similar situation.
The Applicant challenged the Administration’s “failure to conclude an investigation implicating [him] in a 山vehicle theft”.
N/A
The Tribunal concluded that there were a number of substantive and procedural irregularities that entitled the Applicant to compensation amounting to six months' net base salary.