Africa-Press – Kenya. A former KBC managing director wants the court to jail ICT CS Eliud Owalo over what he terms as contempt of court.
In court papers, Naim Bilal wants Owalo to be committed to civil jail for disobedience of court orders issued on October 31 by the labour court.
On October 31, Justice Ocharo Kebira issued an order directed at the CS commanding him to reappoint Bilal.
“On November 8 the CS was served with the copy of the decree and he has refused and declined to obey the court order,” the application reads
He claims that despite being served and several inquiries from the CS, he has failed to take action towards compliance with the said court order.
Bilal was appointed the managing director on March 29, 2019, and on August 31 last year, he made an application for renewal of his contract of service as is required by law.
He moved to court challenging the decision by the then CS not to renew his contract that ended early this year even after the KBC board recommended his reappointment.
In his judgement, the court ruled in favour of Bilal and directed the CS to reappoint him.
Judge Kebira said Bilal had a legitimate expectation that his contract of employment could be renewed, a legitimate expectation the state has violated.
“An order of mandamus is hereby issued against the CS ICT and Information directing him to reappoint Naim Bilal pursuant to the recommendation of the KBC board and have the same gazetted as required by law,” the order reads.
He said the Ministry and the Head of Public Service took a position that fixed-term contracts expire automatically upon the expiry of the appointed period, with no reasonable expectation for renewal.
However, he dismissed their argument ruling that it was only to the extent of the general rule and the position ignores the fact that there is now firm jurisprudence that there are situations that can impel a departure from this general rule.
“I am convinced that the contract was an objective basis for the expectation, and any reasonable employee engaging good judgment would have a genuine belief that the contract was to be renewed therefore,” the court ruled.
The court said Bilal proved he had a legitimate expectation that the contract was to be renewed and that the state had violated the same and continued to by withholding publication of the Gazette notice for his reappointment.
He dismissed the submissions by the ministry that the KBC board recommendation was not binding to the head of public service ruling that it does because the board knows the employee better.
In his case, Bilal had argued that due to his contract not being renewed he had suffered and continues to suffer pecuniary embarrassment because he has been denied salary, allowance and medical cover by the state’s failure to act on the board’s approval.
The ministry in response to the case said Bilal’s term expired on March 19 and it was not renewed by the CS because he had the discretion to consider and reject the recommendation of the KBC board.
The state said the CS had taken a policy decision to competitively recruit for the position of the KBC managing director as one of the strategies to improve the performance of the national broadcaster.
It was their further averment that the evaluation of the board of directors was merely persuasive since there were no other candidates evaluated by the board for the position of managing director, so Bilal could not have emerged as the best candidate in a lone competition.
KBC also opposed Bilal’s petition with a sworn affidavit by the acting managing director Samuel Maina saying none of Bilal’s constitutional rights was violated.
The matter has moved to the court of appeal and the court has issued a stay order.
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