A court in Eldoret has awarded former Kerio Valley Development Authority (KVDA) managing director David Kimosop Sh23.4 million as damages for wrongful dismissal.
Employment and Labour Relations Court Judge Abuodha Nelson Jorum ruled in a landmark judgment that the board unlawfully terminated Mr Kimosop’s contract on the basis of perceived irregularities under Mwongozo.
Mwongozo is a code of governance for government entities that directs that a parastatal chief can only serve a maximum of two three-year terms.
The court ordered the KVDA board to pay Mr Kimosop three months’ salary in lieu of a notice, six months’ pay as compensation for unfair termination, the salary for the remainder of his contract, a gratuity and leave allowance.
“The Head of Public Service Mr Joseph Kinyua had no authority to direct the board to terminate a legal contract of the boss, particularly after issuing a circular in February 2018 indicating that parastatal bosses’ contracts are not subject to Mwongozo on the terms served or age, as those were contracts whose renewal was based on performance,” the judge ruled, adding that terminating the contract was unfair and unlawful.
The court also said the sacking was not based on performance because the agency board had evaluated Mr Kimosop and he performed exceptionally well with sound financial records and his contract was renewed.
The board’s evaluation “rated the claimant at 93.1 percent, which is way above the 70 rating as per common practice in other state corporations”, Judge Jorum said.
“KVDA Board recommended the extension of (Mr Kimosop’s contract) and in doing so, the Board noted that the Act does not limit the number of terms that the managing director of the Authority can serve and it further indicated that where there is a conflict between the Act and the Code of Governance of State Corporations (Mwongozo) in respect to the terms that the Chief Executive Officer should serve, the provisions of the Act prevail.”
Mr Kimosop sued KVDA after his removal in October 2019 and the judge said the board sacked him in spite of a circular from the Head of Public Service that suspended implementation of Mwongozo regarding government operations.
The KVDA board argued in court that Mr Kimosop’s appointment had not been subjected to the directive of the maximum two terms, noting they had been directed by the Head of Public Service to terminate the contract.
Board member Andrew Njenga (of its human resources committee) told the court that Mr Kimosop’s contract was not terminated based on performance or misconduct because his performance had been rated excellent.
The court also found that Mr Kimosop had not been given a fair hearing before his contract was terminated as he was not summoned to appear before the agency.
“Section 41 (2) of the Employment Act makes it mandatory that before terminating the employment of an employee or summarily dismissing an employee under section 44(3) or (4) of the Act, an employer must hear and consider any presentation which the employee may make,” said the judge.
Before he was sacked, Mr Kimosop was serving a three-year term after he had completed two terms as KVDA managing director.
Mr Kimosop had on October 7, 2017 written to the board chairman requesting his contract to be extended for another three years with effect from April 23, 2018.
a) Three months' salary in lieu of notice: Sh1,500,000
b) Salary for the remainder of the contract (23 months): Sh11,500,000
c) House allowance @ 15 percent basic salary for 23 months total: Sh1,725,000
d) Gratuity at 31 percent consolidated basic salary for three years total: Sh5,580,000
e) Leave allowance for two years @ Sh50,000 per year: Sh100,000
f) Six months’ salary as compensation for unfair termination: Sh3,000,000
g) The award will be subject to taxes and statutory deductions and any terminal benefits that may have been paid to the claimant upon termination of his contract.
