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KPA faces legal hurdles in sacking managers

By Willis Oketch | Feb 16th 2016 | 3 min read

The Government faces a legal hurdle in trying to eject senior ports authority managers, according to a confidential report.

The managers were ordered out of their Kenya Ports Authority (KPA) offices on claims of mismanagement that resulted in revenue losses, security breaches and procurement hitches.

A document compiled for the KPA board of directors dated February 10 assesses all legal avenues that can be used to send home the managers.

After analysing the Employment Act, KPA’s Disciplinary Handbook of 2015 and KPA Human Resource Manual of 2011, the authors conclude that the safest way to eject them without incurring bloody battles and financial loss was to convince them to resign and pay them off.

This has sparked speculation, which has already set the public against the managers. But The Standard has established that the new legal facts caused the board to alter its terminology and threats at the close of last week.

When the saga began, State officials in Nairobi declared that the senior managers had been sacked, implying that they had received dismissal letters but by Friday morning, the managers had not be sacked.

And after emerging from a board meeting on Friday evening, KPA Chairman Marsden Madoka said the managers had been asked to “proceed on early retirement”, cementing the new reality.

“Under the circumstances, the most expedient option and as per best practice is resignation. However, this will have to be negotiated,” says the document.

In the event that the affected managers refuse to resign of their own volition then “early retirement and special scheme may be considered”.

The basis of the dilemma is that the affected managers are of different ages and save for outgoing managing director Gichiri Ndua, who is 59 and has given notice of departure in July, the others are younger and qualify for different dismissal mechanisms.

Early Retirement

Mr Justus Nyarandi, who was the general manager for corporate services, is 46 and is ineligible for early retirement under the Handbook that pegs early retirement at 50 years.

Outgoing security services head Maj (retired) Mohamed Morowa will be 50 on March 21.

The document says the managers may be ejected through summary dismissal under the Employment Act due to negligence of duty, improper performance or criminal conduct but warns that under the 2010 Constitution “every person is entitled to fair administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair”. But it warns that for this option to be considered, the board must give affected employees a hearing to establish solid grounds for their dismissal.

The KPA Handbook recommends such a hearing and warns that if the managers went to court they could easily obtain a stay order.

The document then explores the option of “retirement in public interest” provided in the Handbook for employees who fail “to discharge their managerial or supervisory roles effectively”.

The board is warned that even this option must be preceded with a hearing starting with a “notice of show cause”. Yet courts could also halt or suspend this process, says the document.

Meanwhile, the KPA board has also been asked to explore the possibility of early retirement on attainment of 50 years.

This, however, will require a three-months notice but payment can be negotiated in lieu.

This option runs into legal trouble because Nyarandi would not qualify and also because Morowa “is turning 50 years on March 21, 2016.

Others asked to leave the port are Captain Twalib Khamis, the general manager for operations, 57, and Catherine Muthoni Gatere, the legal services general manager, both of who qualify for early retirement.

The advisory says Morowa’s case under this option can be negotiated for payment in lieu.

Under the special scheme, the document states that the managers can opt to retire on a negotiated special scheme.

KPA’s HR Manual provides for resignation after giving a notice and in accordance with their contract but this is only “effective upon the approval of the MD”.

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