The High Court has dismissed an application seeking to stop the hearing of a case against KPMG International by a former chief executive officer of the audit firm who is seeking millions of shillings for alleged racial discrimination following his sacking in 2019.
Justice Aleem Visram declined to stop the case as sought by the global audit firm saying he has no powers to suspend a ruling of a fellow judge.
KPMG sought to suspend the hearing to allow the firm to pursue an appeal against the decision issued in June 2022, allowing former CEO Richard Boro Ndung'u to pursue millions for alleged discrimination.
The judge said that asking him to suspend the ruling issued by Justice Chacha Mwita as sought by KPMG would result in a situation where contradictory orders may be issued by multiple courts in relation to the same issues and affecting the same parties.
"In short, it would lead to confusion and chaos and render both the appellate and review process of no value," Justice Visram said.
In the ruling in 2022, Justice Mwita dismissed an objection by KPMG International seeking to strike out the case saying the reasons advanced by the global company were not valid.
The parent firm argued that the court had no jurisdiction to determine the case because it had no relationship with Mr Ndung’u.
Further, the audit firm said Mr Ndung’u did not seek the permission of the court before filing the case and the former partner should have served the suit using diplomatic channels, being a foreign company. The audit firm said it has moved to the Court of Appeal to challenge the ruling.
Mr Ndung'u, currently a Kenya Revenue Authority (KRA) director, opposed the application saying it was a ploy by his former employer to delay the case.
Mr Ndung’u was illegally sacked for misconduct for an alleged inappropriate relationship with his personal assistant.
He successfully sued KPMG Kenya and was awarded Sh379 million, although his former employer has appealed against the decision.
In the case against KPMG International, the former CEO wants to be paid damages arguing that it failed to protect him and instead aided in his removal as a partner from the regional firm.
KPMG International through Ms Susan Walsh, a senior legal counsel, opposed the case saying it is a foreign entity registered in Switzerland with no office in Kenya.
Mr Ndungu said he lodged a formal complaint on October 17, 2016, with KPMG member firms in Africa through the chairman of the Senior Partners Forum and KPMG South Africa CEO Trevor Hoole.
He said KPMG International (KPMGI) was also made aware of the issue.
Three days later on October 20, KPMG initiated internal investigations into the matter and his then boss was duly notified about the complaint.
He has sued KPMG International for being an accomplice in KPMG Kenya’s machinations, intrigues and mischievous actions he deemed were aimed at denying him justice.
Mr Ndung'u said KPMG International failed to accord him the necessary support and protection in the face of flagrant injustices that KPMG Kenya was perpetrating against him.
He also cites what he perceives as the application of double standards in the way Africans and the rest of KPMG partners are treated.
He submits that some cases involving European partners and that mirror his own accusations have been comparatively handled in far much better way.
“My treatment at KPMGI’s hands was therefore discriminatory and racially motivated, given the disdain they have for the citizens and the laws of Kenya in particular, and Africa in general,” Mr Ndungu says in the documents he has filed at the High Court.
Mr Ndung’u also accuses KPMG International of violating its own “assurances in KPMG’s Global Code of Conduct, and further contrary to the dictates of the Licence Agreement and the Constitution and the Laws of Kenya.”
The firm on its part accused Mr Ndung’u of seeking double enrichment by seeking damage from them yet he had already been awarded in the case against the Kenyan partners.
