Nasieku Tarayia v Agricultural Finance Corporation [2019] KEELRC 691 (KLR)

The Claimant was appointed Deputy Managing Director by the Minister for Agriculture, not by the Respondent's Board, and the position did not exist in the Respondent's formal establishment. Without proof that the Minister could bypass the Board and the establishing law, the Court could not conclude she was discriminated against through the restructuring.

The Claimant was given less than two days to respond to a show cause letter when the Respondent's Disciplinary Code allowed seven days, and she was never furnished with the Efficiency Monitoring Unit investigation report on which the process was founded. As a senior manager entitled to the Manual's protections, the process was procedurally unfair.

The responsibility for the tender lay with the Tender Committee and the Claimant had been stripped of legal and procurement oversight. The Respondent's witnesses never showed how, when or how the advice was sought, the investigating report did not implicate her, and the Board had exonerated her in June 2007. The allegation was not proved.

Documentary evidence showed the debtor and his advocates dealt directly with the Managing Director, who received and minuted the correspondence. The Claimant had denied knowledge of negotiations and was not party to the engagements, so she could not be accused of concealing information from the Board.

Given over three years had elapsed, reinstatement was inappropriate. Considering 21 years of service and the circumstances of the separation, compensation equivalent to 12 months' gross salary was fair, alongside pay in lieu of notice, unpaid salaries, pension contributions, surrender value and accrued leave as offered or proved.