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ELRCPartially AllowedNot stated in judgment· [2018] KEELRC 1231 (KLR)

Rose Aoko Ogwang Odhiambo v National Gender & Equality Commission [2018] KEELRC 1231 (KLR)

Employment and Labour Relations Court
10 August 2018
4,104 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a public commission unlawfully fired its CEO and awarded her over Kshs.11 million in compensation, notice pay and gratuity.

What this practically means

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Executive summary

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The Claimant, Professor Rose Aoko Odhiambo, was CEO of the National Gender and Equality Commission on a five-year fixed term contract from 1 October 2012. Her services were terminated on 6 October 2014 on grounds relating to the procurement of staff medical cover: that she failed to diligently perform her procurement responsibilities, failed to ensure proper documentation, allowed tender documents to be altered to show Resolution Health rather than BRITAM as the successful bidder, and occasioned delay causing loss of over Kshs.3 million. She sought a declaration that the termination was illegal, null and void, reinstatement, or alternatively damages. The Respondent did not file a memorandum of reply but its Chairperson, Wilfred Odimbo Lichuma, swore a replying affidavit and testified as RW1, maintaining that the Claimant fraudulently caused the tender award to be changed and presented documents approving the losing bidder. The court found the Claimant was entitled, as part of her oversight role as CEO and on the advice of the Deputy CEO, to direct correction of errors on the face of the tender report, and that the procurement officer had undermined her by prematurely issuing award letters. It held there was no loss of Kshs.3 million, that the termination was unlawful and unfair in violation of sections 41, 43 and 45 of the Employment Act, and that the Chairperson's bullying amounted to an unfair labour practice. Reinstatement was refused because the statutory three-year period and the contract had expired. Following Andrew K. Tanui v Postal Corporation of Kenya, the court awarded twelve months' salary (Kshs.7,747,200), one month's salary in lieu of notice (Kshs.645,600) and gratuity for the served term at 31% (Kshs.2,976,000), with interest and costs to the Claimant.

Key legal issues

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01

Validity of the reasons for termination

Holding

The alleged reasons were false; the Claimant caused no loss and did not interfere with the tender process

Reasoning

The court found the Kshs.3 million loss claim false since the extension was ordered by the commission itself and the new cover commenced after the extension period. The Claimant acted on the Deputy CEO's advice in correcting evaluation errors and was performing her oversight role. The commission wrongly and falsely shifted blame for the delayed process to the Claimant.

p. 5
02

Procedural fairness of the termination

Holding

The termination violated sections 41, 43 and 45 of the Employment Act and the bullying by the Chairperson amounted to an unfair labour practice

Reasoning

The Claimant was given a show cause letter and hearing, but the underlying allegations were false and the process was driven by animosity from the Chairperson. The court held the termination unlawful and unfair and characterized the Chairperson's conduct as bullying undermining good governance and transparency.

p. 5
03

Reinstatement and compensation

Holding

Reinstatement refused as the statutory three-year period and the contract had expired; compensation of 12 months' salary, notice pay and gratuity for the served term awarded

Reasoning

Under section 12(3)(iv) of the ELRC Act reinstatement is only available within three years of termination. The court was persuaded by Rika J's reasoning in Andrew K. Tanui v Postal Corporation of Kenya that where a fixed term contract has expired it is unreasonable to reinstate, and compensation under section 49(1)(c) as read with 49(4) is appropriate.

p. 5

Legal principles established

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  • A CEO is entitled to direct correction of errors apparent on the face of a tender report as part of her oversight role, and this does not amount to unlawful interference with the tender committee
  • Neither the CEO nor the commission of a public institution may unduly superintend the other; their relationship must be guided by constitutional principles of transparency, accountability and fairness

Court orders

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  1. 1.Twelve months salary in compensation for the unlawful termination in the sum of Kshs. 7,747,200
  2. 2.One month's salary in lieu of notice Kshs. 645,600
  3. 3.Gratuity for the served term of the contract, calculated at 31% in the sum of Kshs. 2,976,000
  4. 4.Interest at court rates from date of filing suit in respect of (ii) and (iii) above and from date of judgment in respect of (i) above till payment in full
  5. 5.Respondent to pay costs of the suit

Authorities

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Legislation

  • National Gender and Equality Commission Actsection 22
  • Public Procurement and Disposal Act(2005)
  • Public Procurement and Disposal Act Regulations2006 Regulations
  • Employment Actsections 41, 43, 45, 49(1)(c), 49(3)(a), 49(4)
  • Employment and Labour Relations Court Actsection 12(3)(iv)
  • Constitution of KenyaChapter 6 and 10

Cases cited (1)

  • Andrew K. Tanui vs Postal Corporation of Kenya
Jurisdiction invoked
Employment and Labour Relations Court Act, section 12(3)(iv); Employment Act 2007 sections 41, 43, 45 and 49

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Rose Aoko Ogwang Odhiambo v National Gender & Equality Commission [2018] KEELRC 1231 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1231/eng@2018-08-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.