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ELRCPartially AllowedJudicial Review Application; Notice of Motion dated 27th June, 2016· [2018] KEELRC 2148 (KLR)

Republic v Kenya Medical Research Institute & another Ex-parte Solomon S. R. Mpoke [2018] KEELRC 2148 (KLR)

Employment and Labour Relations Court (initially filed at the High Court and transferred)
6 April 2018
MNMathews N. NdumaMOMaureen Onyango
1,976 words in judgment
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The bottom line

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Kenya's employment court voided KEMRI Board's termination of its CEO because only the appointing Cabinet Secretary could remove him, though his contract had expired anyway.

What this practically means

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Executive summary

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The ex parte applicant, appointed Director/Chief Executive Officer of KEMRI by a letter of the Cabinet Secretary for Public Health and Sanitation dated 4th July 2013, was sent on compulsory leave in December 2015, issued a notice to show cause on allegations of mismanagement and misappropriation of funds following an audit report, and had his employment terminated by a letter dated 14th March 2016 signed by Dr. Lilian Apadet, Chairperson of the KEMRI Board. He sought certiorari to quash the termination on grounds that the Board acted in excess of jurisdiction and violated natural justice. The court found the Board had authority to discipline the applicant and that natural justice was observed, as he was given an opportunity to respond to the charges. However, since the appointment was made by the Cabinet Secretary, only the Cabinet Secretary could lawfully remove him; applying section 51 of the Interpretation and General Provisions Act, the Board's termination letter was ultra vires, null and void. The court nonetheless found the appointment was a three-year contract which expired by effluxion of time on 9th August 2016. The court quashed the termination, declared the contract expired, awarded salary for the five months from termination to expiry (excluding facilitation benefits), and gratuity at 31% of annual basic salary under clause 14 of the appointment letter, with interest at court rates if unpaid within 30 days, and ordered the Respondents to pay costs.

Key legal issues

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01

Whether the KEMRI Board had authority to terminate the appointment of the Director/Chief Executive Officer

Holding

The Board acted ultra vires its powers; the appointment was made by the Cabinet Secretary who alone had the power of removal. The termination letter had no legal effect and was null and void, but the three-year contract expired by effluxion of time on 9th August 2016.

Reasoning

The court noted the State Corporations Act is silent on appointment of the Chief Executive but the appointment letter showed the Cabinet Secretary appointed the applicant. Relying on section 51 of the Interpretation and General Provisions Act, the power to appoint carries the power to remove. Since the Board merely recommended the appointment, it could not terminate it.

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02

Whether the rules of natural justice were violated

Holding

No violation. The applicant was served with a notice to show cause, responded in detail, and the Board considered his responses before finding the explanations unsatisfactory.

Reasoning

The Board had authority to conduct disciplinary proceedings. The applicant was given an opportunity to be heard on nine charges arising from an independent audit report and responded to all allegations. The court referred to the Court of Appeal decision in County Assembly Kisumu case on natural justice requirements and found they were met.

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Whether the applicant is entitled to the reliefs sought

Holding

Certiorari granted quashing the termination; the court declared the contract expired by effluxion of time and awarded salary for five months and gratuity under clause 14 of the appointment letter.

Reasoning

Having found the Board acted in excess of jurisdiction, the court quashed the termination decision. However, because the three-year contract had lapsed on 9th August 2016, the applicant was not entitled to continue in office beyond that date; he received salary and gratuity only up to expiry.

p. 4

Legal principles established

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  • Where a written law confers a power to appoint, the same person or authority has the power to remove or revoke the appointment unless a contrary intention appears
  • A board has authority to discipline its Chief Executive and recommend removal, but where the appointment was made by the Cabinet Secretary, only the Cabinet Secretary may lawfully terminate the appointment

Court orders

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  1. 1.Declared that the decision of the Respondents to terminate the three (3) year appointment of the exparte applicant as Director/Chief Executive Officer communicated in the letter dated 14th March 2016 is unlawful, null and void
  2. 2.Quashed the decision of the Respondents communicated in the letter dated 14th March, 2016 removing the exparte applicant as Director/Chief Executive Officer of KEMRI
  3. 3.Declared that the appointment of the exparte applicant expired by effluxion of time on 9th August, 2016
  4. 4.Ordered payment of monthly salary (excluding benefits such as official transport mileage claims, overtime, telephone service, accommodation and subsistence) from 14th March 2016 to 9th August 2016, a period of five months
  5. 5.Ordered payment of gratuity in terms of clause 14 of the Letter of Appointment, calculated at 31% of the annual basic salary for the three year contract that expired on 9th August 2016
  6. 6.Ordered payment within 30 days failing which interest to accrue at court rates until payment in full
  7. 7.Respondents to pay costs of the suit

Authorities

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Legislation

  • State Corporations Act Cap 446 Laws of KenyaSections 3(1), 4, 5(3), 6(1) and (2), 26 and 27
  • Interpretation and General Provisions Act, Cap 2 Laws of KenyaSection 51
  • Public Finance Management Act2012

Cases cited (1)

  • County Assembly Kisumu and 2 others v Kisumu County Assembly Service Board and 6 others
    [2015] eKLR
Jurisdiction invoked
Judicial review jurisdiction under order of certiorari (leave granted 20th June 2016); matter transferred from the High Court

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Kenya Medical Research Institute & another Ex-parte Solomon S. R. Mpoke [2018] KEELRC 2148 (KLR)", Case Analysis (2018). Judicial Review Application; Notice of Motion dated 27th June, 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2148/eng@2018-04-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.