State fights former PS awarded Sh1 for sack

Ex-Public Service and Youth PS Lillian Omollo. FILE PHOTO | NMG

By SAM KIPLAGAT
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Summary

• The State through the Attorney-General’s office has appealed the judge’s decision that found her removal in May unconstitutional.
• Ms Omollo had been on half-pay since 2018 when she was charged in court over the loss of funds at the NYS through fictitious invoices and multiple payments on one supplier invoice.
• If returned to the payroll, Ms Omollo will continue earning half-pay, which is equivalent to about Sh382,500 based on the PS gross pay of Sh765, 000.

The Attorney-General has launched a legal fight to block the reinstatement of former Youth and Gender Principal Secretary (PS) Lillian Omollo to the government payroll after a court ruled she had been removed illegally over the National Youth Service (NYS) scam.

The State through the Attorney-General’s office has appealed the judge’s decision that found her removal in May unconstitutional.

“We request your good office to issue us with typed proceedings and a certified copy of the judgment and decree for the purpose of filing an appeal,” Ms Schola Mbilo, the principal litigation counsel at the AG’s office, said in a letter to deputy Registrar of the court.

Ms Omollo had been on half-pay since 2018 when she was charged in court over the loss of funds at the NYS through fictitious invoices and multiple payments on one supplier invoice.

If returned to the payroll, Ms Omollo will continue earning half-pay, which is equivalent to about Sh382,500 based on the PS gross pay of Sh765, 000.

High Court judge Stephen Radido had termed Ms Omollo’s removal unconstitutional, but ordered the government to pay her a nominal damage Sh1 for the violation of her right to due process in her sacking.

A nominal damages of Sh1 is granted to an aggrieved person who proves to have suffered legal wrong but no financial loss.

The Attorney-General argued that Ms Omollo, having been a presidential appointee, served at the pleasure of the President and that her tenure lapsed after she was replaced with the appointment of another PS.

Further, the AG argued that the PS held the office in public trust and having been charged with corruption offences, she was suspended in line with Section 62 of the Anti-Corruption and Economic Crimes Act.

In the judgment, Justice Stephen Radido faulted the government for striking Ms Omollo’s name off the payroll without subjecting her to due process.

The judge said the former PS was never given reasons for her removal but “was ingeniously notified that her tenure had ended because a replacement had been appointed”.

He docket has since been split with Prof Collette Suda being in charge of Gender and Mary Kimonye Public Service.

Justice Radido said that the State had no right to remove her from office without following the law.

Article 236 of the Constitution 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.

Ms Omollo’s is charged with, among others, conspiracy to defraud, abuse of office and money laundering together with a host of former senior government officials at the NYS over the loss of Sh468 million.

The trial is still pending before a magistrate court.

Last year, Justice Mumbi Ngugi found that Sh33 million which she had saved in several accounts were proceeds of crime and ordered it forfeited to the government.

But the former PS has appealed the decision, arguing that Justice Ngugi erred in law by allowing the forfeiture application without evidence and legal soundness.

Ms Omollo, appointed PS for Public Service and Youth in December 2015, was placed on half-salary pending the conclusion of the criminal charges.

But in May 2020, Public Service Cabinet Secretary Margaret Kobia informed Ms Omollo that her appointment had lapsed with the hiring of another person as the Gender PS.

Ms Omollo sued the government arguing that she is presumed innocent and was entitled to half pay, as the corruption case proceeds before a magistrate.

She argued through her lawyer Justus Omollo that the revocation of her appointment was unconstitutional and sought service gratuity at the rate of 31 percent of the basic remuneration package for the term served and restoration of all her withheld salary and allowances for the years under suspension.