David Kimosop, the former CEO of the Kerio Valley Development Authority has won a case against the company.
Judge Abuodha Nelson Jorum, of the High Court in Eldoret, made the award following a suit filed by Kimosop against KVDA for wrongfully sacking him on May 30, 2019.
Kimosop filed the case on October 31, 2019 seeking compensation for the illegal termination of his contract.
He said he had been employed as CEO in April 2012 for a term of three years which lapsed in April 2015, and that his contract was extended for another three years to lapse on April 22, 2018.
On October 7, 2017, Kimosop said he wrote to the KVDA board directors requesting extension of the contract for a further three years with effect from April 23, 2018. His letter was copied to CS for Regional Development under whom KVDA operated.
On December 15, 2017, the KVDA board discussed Kimosop’s request and during the meeting, the board noted that an evaluation conducted on his performance had rated his performance at 93.1 per cent which was well above 70 per cent as per common practice in other state corporations.
The meeting recommended extension of the term noting that the KVDA Act did not limit terms for its CEO.
On December 18, 2017, KVDA board chairman wrote to the parent ministry on the approval of the extension of Kimosop’s contract and on April 18, 2018 the CS for Devolution wrote to Kimosop extending his contract for another three years.
He signed an employment agreement with KVDA on May 4, 2018 with terms and conditions of service for him as managing director.
Kimosop said he diligently and faithfully perfumed his work until May 28, 2019 when through a letter from chairperson of KVDA board, he was informed that they had received communication from the Head of Public Service and the parent ministry in respect of the extension of his contract.
He was requested to convene a board meeting but not allowed to attend the meeting on May 30, 2019.
On the same day, he was notified that his contract had been terminated based on guidelines in the Code of governance for state corporations (Mwongozo), which provided that the term of CEOs for state corporations was three years and renewable only once.
Kimosop argues that by terminating his contract based on Code of governance for state corporations (Mwongozo), KVDA was guilty of approbating and reprobating because during the board meeting on December 15, 2017, where a decision was made to extend his contract, KVDA had stated that the applicable law was the KVDA Act and not Mwongozo.
The former CEO argued that before being issued with the termination letter he was not notified of the grounds, if any, that would justify such termination.
“The claimant (Kimosop) avers that he was not accorded a chance to show cause why he should be dismissed from employment and hence his dismissal was unlawful and unjustified.
KVDA in its defence stated that the approval of the third contract term for Kimosop was subject to approval by the head of public service and that the same was not obtained.
KVDA further argued that the termination of the contract was undertaken to rectify an illegality and ensure compliance with the KVDA Act and Mwongozo.
The judge in his ruling largely agreed with Kimosop noting that the head of public service had no power to direct the KVDA board to terminate the contract.
“On the question of whether the board was bound to hear the claimant (Kimosop) before terminating his contract, the answer would be in the affirmative as well,” the judge said.
He said Section 41 (2) of the Employment Act makes it mandatory for employers to hear and consider any presentations from an employee before dismissal.
“The respondent (KVDA) being a public body, is also bound by the Fair Administrative Actions Act,” the judge said.
For wrongful dismissal, the judge awarded Kimosop Sh11.5 million, which was salary for 23 month that he did not serve after his contract was terminated illegally, Sh1.5 million as three month salary in lieu of notice, Sh1.7 million for house allowance which is 15 per cent basic salary for 23 month and another Sh5.5 million gratuity among other benefits.
“The award shall be subject to taxes and statutory deductions and any terminal benefits that may have been paid to the claimant upon termination of contract,” the judge ruled.
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