• Labour court had ordered that Kipkoech be compensated for unlawful dismissal.
• The appellate court reversed the lower court's ruling as his removal was in accordance with Section 25 of the retired Constitution.
Former Kenyan ambassador to US Samson Kipkoech will not get Sh18 million compensation for wrongful dismissal after a Court of Appeal ruling yesterday.
The appellate court set aside the compensation awarded to Kipkoech by the Employment and Labour Relations court in 2017.
He had sued former head of Civil Service Richard Leakey and former Foreign secretary Sally Kosgei for Sh100 million unlawful sacking.
Judge Nduma Nderi of the Employment court had ordered the state to pay Kipkoech US $185,922 and Sh985,800 payable with interest.
Nderi had ruled that since the contract was unlawfully terminated, the claimant was not entitled to the enumerated benefits as they were meant to facilitate his office while he was in service.
“The court further awards the claimant loss of school fees K-GD12 and GD6-GD12 in the sum of US $25,800 and US $27,000 which loss is directly attributable to the unlawful and sudden recall from USA and termination of employment of the claimant in public service,” Nderi ruled.
The state appealed the ruling and judges Asike Makhandia, Gatembu Kairu and Otieno Odek yesterday admitted the state petition. "When calculating damages due to an employee in the event of unfair or wrongful termination, it is only the emoluments or gross salary of the employee that should be taken into account not allowances and privileges dependent on actual service and performance of the contract."
The judges said the alleged school fees for Kipkoech’s children were not part of his salary or emoluments. "There is no evidence on record to show that the respondent paid the fee to any school in the United States of America. As such, the respondent is not entitled to claim such fees as of right.
"The learned judge erred in awarding the respondent the sum of US $25,800 and US $27,000 as loss of school fees. We hereby set aside the award of these sums as damages."
The judges affirmed and upheld the decision by Nderi that the rest of the allowances may only be justified provided that the claimant served the full term.
“The upshot of our consideration of the grounds of appeal and applicable law is that this appeal has merit. The judgment and decree of the Employment and Labour Relations Court dated 16th November 2017 is hereby set aside in its entirety.
"For the avoidance of doubt, the respondent is entitled to payment of one month’s salary in lieu of notice as provided for in Clause 9 of the Local Agreement and payment of gratuity equivalent to 25% of the aggregate of the basic salary paid during the period of service.”
Kipkoech had been appointed Kenya’s ambassador to the US, Columbia and Mexico for 36 months from November 1997.
But Kosgei recalled him on October 14, 1999 – 22 months before the expiry of his contract. Leakey terminated his appointment on March 21, 2000.
He told the court that his recall and subsequent termination were unconstitutional, conspiratorial, malicious and illegal.
"The respondent urged us to find the circumstances that led to his recall and subsequent termination of his contract constituted unfair and unlawful termination.
"He also urged the court to find the recall letter was without just or legal cause and was malicious taking into account that shortly thereafter, Kosgei’s husband or former husband, Dr Yusuf Nzibo, was appointed ambassador to the US and that such an appointment conferred a direct benefit to her on account of her spouse and children."
He said the recall and termination were a conspiracy between Leakey and Kosgei and urged the court to dismiss the appeal.
The government denied there was any conspiracy or ill-motive to recall or terminate Kipkeoch's appointment.
His removal as ambassador, the state said, was done in accordance with Section 25 of the retired Constitution.