Fred A. Odhiambo v Attorney General & another [2013] KEELRC 100 (KLR)

The court read Section 6(1)(b) of the Postal Corporation of Kenya Act together with Sections 51(1) and (2) of the Interpretation and General Provisions Act, which provide that a person with power to make an appointment also has power to remove, and where the power is exercisable upon recommendation, it may only be exercised upon that recommendation. The appointment had been made by the Minister on the Board's recommendation, so the Minister was competent to terminate.

The Board's accusations - breach of trust, abuse of power regarding Mr Odongo, failure to implement directives and audit findings - were not demonstrated by the evidence. The only substantiated matter was the settlement recovering Kshs.2.4 million from Afri-Payments, which was not the matter the Board considered, and which the Chairman had sanctioned. No appraisal reports supported a capacity-based termination, and the Corporation's performance had improved under the Claimant.

The minutes of the Board meeting of 21st May 2009 did not show that charges were framed against the Claimant or that he was heard. A meeting convened to receive an audit update was not a disciplinary hearing, and the Claimant, an ex-officio Board member, was not notified that it was one. No excuse for omitting a hearing was proffered. Article 7 of ILO Convention 158, part of Kenyan law via Article 2(6) of the Constitution, and Sections 41, 43, 45 and 47 of the Employment Act were breached.

Under Section 49(1)(c) of the Employment Act the court assessed compensation considering that the Claimant had 5 months left on his contract, lost his livelihood unlawfully, held a high public office, had abandoned a career at Barclays Bank, had received reasonable gratuity and had mitigated his loss. Gross salary of Kshs.740,000/= per month comprised basic salary, housing allowance and other remunerative allowances. Claims for school fees, club subscription, holiday and telephone allowances failed for lack of evidence.

The suit was filed under the Labour Institutions Act, No. 12 of 2007, whose Section 12 empowered the Industrial Court to review decisions taken by the State in its capacity as employer. The Respondent's contention that only certiorari in the High Court could undo the Minister's decision was rejected, following Justice Majanja's decision in USIU v Attorney General. The Industrial Court Act, 2011 now confers exclusive original and appellate jurisdiction over employment and labour relations disputes.