Suspended Export Processing Zone Authority Kenya CEO Fanuel Kidenda has moved to court seeking reverse a decision by Trade and Industry Cabinet Secretary Peter Munya to replace him.
Kidenda also seeks an order compelling
Munya appointing George Makateto the Acting Managing Director of EPZA.
Through his lawyer Danstan Omari, Kidenda wants to be reinstated with all privileges, salaries, allowances as well as being granted access to his office without victimization for the duration of his term.
Lawyer Omari said the CEO was dismissed unprocedurally by Munya and Makateto appointed verbally as the acting MD.
Kidenda further wants an order restraining CS Munya and EPZA from declaring the position of the CEO vacant and resist from recruiting anyone to fill the position.
He was first appointed and gazetted as the CEO as from November 14, 1999 uninterrupted and progressively been risen through the ranks. And through a letter dated March 20, Kidenda communicated his desire to renew his contract.
The EPZA board evaluated his performance under supervision of the State Corporation Advisory Committee (SCAC) and returned “very good” score at a special board meeting held on 4th July 2018.
The results of the evaluation were presented to the EPZ board by SCAC at a special full board meeting held on 6th July 2018 upon which board resolved and recommended renewal of his contract, for further three years.
The board resolution was communicated to the then Cabinet Secretary of Trade and Cooperatives Aden Mohamed on 6th July this year with a copy sent to his Principal Secretary Betty Maina who was present during the meeting of 4th July as a Board member.
The CS concurred with the board resolution and issued the re-appointment letter dated 11th July this year which was forwarded to EPZA on 8th July. A new contract executed between board session chairman Joseph Muisiyo Nzioka and Kidenda for three years effective 21st September.
Munya took over the Trade docket from Mohammed following a cabinet reshuffle on September 13.
On 20th September, Munya purported to relieve Kidenda of his duties and his place, appointed Makateto as acting MD. The CS also wrote to the board notifying them of the appointment.
But Kidenda said his removal and new appointment was done without the board’s involvement and in total disregard of all relevant laws and provisions of government circular and the human resource police of EPZ board.
Kidenda claims the purported dismissal by the CS is illegal, irregular, unprocedural, ultra vires, unreasonable. He further said the move was a witch-hunt actuated by malice and blatant disregard of the law and rules of justice.
The petitioner further argues his employment cannot be terminated by the CS without defence to the Company’s board and as such the purported dismissal is null and void and has no legal consequence.
“The due process was not followed in the dismissal and I was not given any notice of termination or payment,” he said in a sworn statement.
In their replying affidavit, EPZA has termed the contract of employment dated 31st July this year exhibited by dismissed CEO as forgery and fraudulent as it has not offered such contract to Kidenda.
The corporation said that offering a contract of employment to the dismissed CEO and not crystallized as at 31 July 2018 when the forged contract of employment exhibited by the petitioner is purported to have been authored.
“The Board did not make any resolution appointing the author of the purported contract of employment as a session chairperson and equally did not resolve that a contract of employment be given to Kidenda as the CS had not appointed him as such and had not determined the terms and conditions of such an appointment for the board to effectuate the same,” reads EPZA response.
The corporation further claims the person who signed the contract of employment is an imposter and had no authority/ mandate of the Minister through the board of authority to do so.
“No appointment and contract of employment exists between Kidenda and EPZA and the court has no jurisdiction to create an employer-employees relationship as is being orchestrated by the petitioner through uttering forged documents,” argues EPZA.
The corporation Act does not have the position of an acting Chairperson as appointed by the President or session Chair and the petitioner has not established a special condition for granting an injunction.
