In allowing the case to go on, Industrial Court judge Nzioki wa Makau ruled that Odongo was within his rights to know the circumstances surrounding his dismissal, and that he has a right to seek recourse in the courts if he feels that there was a breach in the process of dismissing him.
“Even in the United Kingdom, the law has progressed where the Crown employees are permitted recourse to relief under the employment laws. In the contract before me, the claimant has the right to seek recourse in courts if he feels there was a breach,” he said.
“The courts cannot shut him out as the contract is not one which is so elevated as to fall in the category of a contract at the pleasure of the State or Crown,” the judge added.
He also said that the termination of the contract is a question of mixed law and fact which will require a hearing to determine whether it was merited or not.
“There must be an inquiry into the reason why the termination took place in order to ascertain whether it was genuinely warranted,” he stated. “The court is entitled to enquire into the circumstances of the termination of the contract. True, there may be no craft, no innovation to allow court or the party to go outside the bounds of statute and the contract.”
The government had been temporarily barred from appointing a Managing Trustee at the National Social Security Fund to await the court’s determination whether a case was merited.
Makau had ordered that the position should not be advertised and no programmes put in place to replace Odongo.
Odongo, who was relieved of his duties challenged the decision to sack him saying that Labour Secretary Kazungu Kambi breached the law and his decision was illegal and unconstitutional.
Justice Makau had heard that the NSSF has already paid Odongo Sh2.9 million in terminal dues.
Odongo said that Kambi had no legal mandate to sack him since all the powers of running NSSF are vested in the Board of Trustees.
Lawyer Ochieng Oduol who was appearing for the sacked Managing Trustee said the minister can only act on recommendations made by the board.
The minister’s lawyer Ahmednasir Abdullahi however said that Section 33 of the NSSF Act stipulates how the Managing Trustee can be removed.
He said that the exit document which Odongo signed sealed his fate as it requires that he be paid a three months salary in lieu of notice.