George Nyakundi Ombaba v Attorney General [2019] KEELRC 2103 (KLR)

The claimant was a public officer, so the Public Service Regulations made under section 13 of the Public Service Commission Act, Cap 185 formed part of his contract. Regulation 34 required charges to be investigated by a committee of not less than three members chaired by a judge, magistrate or legally qualified public officer. Instead, after the PSC received the PS's recommendation, it simply decided to dismiss the claimant without such a committee. The suspension letter itself was irregularly signed by A.W. Kariuki 'for' the Permanent Secretary. The breach of the mandatory procedure constituted breach of contract and rendered the dismissal wrongful, though not a nullity.

Although appointed on permanent and pensionable terms, there was no guarantee the claimant would work to retirement age. Under section 14 of the repealed Employment Act, termination could be by notice or payment in lieu. During suspension he was contractually barred from leaving his duty station and reporting twice monthly, so he could not mitigate; hence salary for the approximately 20-month suspension period was awarded. After the wrongful dismissal he was free to seek other employment, so salary to retirement age was refused.

The court held the applicable regime was the repealed Employment Act, under which an employer could dismiss with or without cause provided any express contractual procedure was followed, including agreed or reasonable notice, and a hearing where the contract provided for one. The Public Service Regulations formed part of the contract of this public officer.