Rose Aoko Ogwang Odhiambo v National Gender & Equality Commission [2018] KEELRC 1231 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Validity of the reasons for termination
The alleged reasons were false; the Claimant caused no loss and did not interfere with the tender process
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.
Procedural fairness of the termination
The termination violated sections 41, 43 and 45 of the Employment Act and the bullying by the Chairperson amounted to an unfair labour practice
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.
Reinstatement and compensation
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
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.
Legal principles established
#- 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
#- 1.Twelve months salary in compensation for the unlawful termination in the sum of Kshs. 7,747,200
- 2.One month's salary in lieu of notice Kshs. 645,600
- 3.Gratuity for the served term of the contract, calculated at 31% in the sum of Kshs. 2,976,000
- 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.Respondent to pay costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court Act, section 12(3)(iv); Employment Act 2007 sections 41, 43, 45 and 49
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Michael Kinyanjui Mburu v Kenyatta University [2021] KEELRC 2291 (KLR)[2021] KEELRC 2291 (KLR)22 Jan 2021
Cite this brief
#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.