Ex-Nairobi town clerk loses battle for more gratuity

Former Nairobi Town Clerk John Gakuo and former county executive Timothy Kingondu are not entitled to more compensation following their dismissal by Governor Evans Kidero four years ago, the High Court has ruled.

Justices Patrick Kiage, Kathurima M’Inoti and Agnes Murgor, however, said the two will be compensated for violation of their right to a fair administrative action but not under the Employment Act.

For that reason, the judges increased their compensation to Sh1.5 million, from Sh904,000 each.

Mr Gakuo and Mr Kingondu were appointed members of the city executive committee on June 20, 2013 and they were to serve for five years.

They were, however, sacked on October 7, 2014.

Mr Gakuo is serving a three-year prison term for abuse of office.

Mr Gakuo had been named the Water, Energy, Forestry and Environment and Natural Resources executive while Mr Kingondu was responsible for Health.

They moved to court, arguing that the sacking was abrupt and that they were not given a chance to be heard.

After hearing the case, Justice Nduma Nderi of the Employment and Labour Relations Court awarded them 12 months salary, gratuity plus a month’s pay in lieu of notice.

The amount was calculated on the basis of a monthly pay of Sh64,213.

Mr Gakuo and Mr Kingondu appealed the decision, arguing that they were entitled to Sh21,500,833.

To support their case, the two relied on their letters of appointment, which indicated that their entry point monthly salary was Sh300,000.

The two contended that they were State officers and not workers under the Employment Act and therefore, the court should have awarded them damages for violation of their constitutional rights.

They said their dismissal did not follow due process because they were not informed of their mistakes and that the county government did not give them a chance to be heard and defend themselves.

However, the devolved government argued that the two were political appointees and their termination did not require the holding of a disciplinary hearing.

It said the pair failed to state which of their rights were violated.

The judges said Mr Gakuo and Mr Kingondu were not clear if they were State officers or whether they were subject to the Employment Act.

They said a governor has power to dismiss an executive "at any time and at his pleasure, so long as he or she does so reasonable rather than arbitrarily or capriciously".

The court further said to prove violation of those rights, the two were obliged to adduce evidence, not merely that their appointments were terminated in breach of statute.