The High Court has allowed a former KPMG chief executive officer to pursue millions of shillings from the Swiss-based parent audit firm for racial discrimination after his sacking in 2017.
Justice Chacha 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 has no jurisdiction to determine the case because it had no relationship with Richard Boro 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.
“I do not agree with the argument by KPMG International that leave should have been granted before service was effected through email,” the judge said.
The court added that KPMG International has not denied that the officer who received the email from Mr Ndung’u, was acting on its behalf.
Mr Ndung’u was illegally sacked for misconduct for an alleged inappropriate relationship with his personal assistant. He successfully sued KPMG Kenya and was paid Sh379 million, although his former employer has appealed against the decision.
The former CEO wants to be paid damages by KPMG International 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.
She said KPMG EA and KPMG Kenya is an association of partnerships in Kenya, Uganda, Tanzania and Rwanda and that KPMG Kenya was a distinct body from KPMG EA.
Mr Ndung’u argues in the case that he complained against the local firms in October 2016 through the chairman of the senior partners’ forum and KPMG South Africa CEO Trevor Hoole.
He said KPMG International was informed of the issue and three days later, the parent firm started investigations into the matter. He said in court documents that the CEO Josphat Mwaura was informed about his complaint.
As the internal investigation proceeded, he said Mr Mwaura changed tune and accused him of a more serious offence of sexual harassment, dropping the earlier one of improper conduct.
Mr Ndung’u is seeking an undisclosed amount from the parent company for damages after the sack. He said the global firm encouraged the local partners to take action against him and victimise Mr Ndung’u for raising the complaint, contrary to KPMG’s code of conduct.
According to Mr Ndung’u, the parent company failed to protect him by ensuring that he was taken through the required process and instead, let the local and regional partners vote for his removal without hearing his side of the story.
Justice Mwita directed KPMG International to file its defence within 15 days.
