The Employment and Labour Relations Court recently awarded former Principal Secretary, Public Service and Youth Lilian Mbogo Omollo KES 1 as compensation, after it held that her termination of employment was unconstitutional since she was not subjected to due process nor given reasons for her removal from office. In her petition, Omollo stated that the Cabinet Secretary, Ministry of Public Service and Gender (CS), notified her, through a letter dated 19 May 2020, that her tenure had lapsed upon the appointment of another person to the office which she held. Omollo claimed that as a public officer, she was entitled to protection against removal from office without due process and relied on provisions in the Constitution of Kenya, 2010 as well as the Employment Act, 2007 to challenge her dismissal. She cited Article 232 of the Constitution which states that a public officer shall not be dismissed, removed from office, demoted in rank, or otherwise subjected to disciplinary action without due process of law.
In response, the CS argued that Omollo's tenure lapsed upon the appointment of her replacement and that the protection assured to public officers under the Constitution did not apply to Principal Secretaries who served at the pleasure of the President. However, the CS failed to exhibit any such decision by the President, for Omollo's removal from office.
Justice Stephen Radido found in favour of Omollo and held that the manner of her removal from office was unconstitutional. However, the Court also considered that Omollo had been found by the High Court to be a beneficiary of proceeds of crime. The Court further noted that it was not informed whether the decision against Omollo had been appealed against. For these reasons, the Court awarded KES 1 as compensation for the violation of Omollo's right to due process.
This case is a reminder to employers and employees that although termination may be held unlawful for failure to follow due process, the Court can also take into consideration the conduct of the employee in determining or assessing the damages to be awarded.
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