Kenya Medical Supplies Agency (KEMSA) acting CEO Terry Ramadhani Kiunge finds himself in an embarrassing situation after he was sued by a member of staff. Christine Mwangi claims she declined to approve a suspicious payment to the law firm of Oraro & Co. Advocates under instructions from Mr Kiunge, as a result, the CEO then attempted to transfer her to Mombasa as punishment.
The Employment and Labor Relations Court Judge Stella Rutto however saved her from the embarrassing situation through a ruling dated 14th July, 2023. Christine Mwangi is said to have declined to make what she termed as fictitious payments.
In a petition dated December 20, 2022, Christine Mwangi filed a petition claiming that her transfer from Nairobi to Mombasa Regional Depot emanated from the directive of KEMSA CEO Terry Ramadhani Kiunge that she should process payments for Oraro & Co. Advocates in respect of legal services rendered to KEMSA.
She claimed that, upon the insistence of Mr Kiunge, she initiated payment for the sum of Ksh.8, 780,538 but subsequently cancelled the same upon realizing that she had been misled by her boss. In her petition, she sought orders that the decision of the CEO to transfer her to Mombasa violated the Constitution as well as the Kenya Medical Supplies Authority Act and thus null and void and that he is not fit to hold the position of the CEO at KEMSA or hold any other public office within the Republic of Kenya.
She further sought orders to quash the decision by the CEO to transfer her from Nairobi to Mombasa. She further states that the CEO engaged in improper conduct, including the doctoring of minutes and letters to circumvent the legal requirements that authorized such instructions to be issued by the Chief Executive Officer of KEMSA.
As part of the scheme to go around the legal requirements, Mr Kiunge instructed her chief of staff to illegally amend the minutes of the meeting held on 14th October 2022, to remove the fact that the Board Chair of KEMSA had issued instructions to Oraro & Co. Advocates and substituting the Board Chair with one of her predecessors in an acting capacity. Later, the CEO prepared an internal memo confirming that the firm of Oraro & Co. Advocates had rendered legal services to KEMSA contrary to the established procedures that require such confirmation to emanate from the legal department.
She further alleged that the CEO purported to divert funds meant for the restructuring of KEMSA towards the payment of legal fees without the approval of the Board of Directors of KEMSA. Following the cancellation of the payment process, on 27th October 2022, the CEO wrote to her, transferring her to the Mombasa Regional Deport and directing the person in charge of the depot to allocate her duties, even though she is superior to the said person.
In November 2022, the Principal Secretary of the Ministry of Health herein wrote to the CEO, directing her to reverse certain decisions that had been made without consulting the Board of Directors of KEMSA, including the deployment of staff. Despite the letter dated 9th November 2022, from the Principal Secretary, Ministry of Health, the CEO asked the Finance Manager to allocate her (the petitioner’s) duties.
According to Mwangi, the transfer was occasioned by the determination by the CEO to carry out irregularities and illegalities in the execution of her duties as the Chief Executive Officer of KEMSA.
However, in an affidavit sworn by Mr Peter Tum, the Principal Secretary in the State Department for Medical Services, Ministry of Health, he distanced the Ministry of Health from the management of staff of KEMSA. He avers that KEMSA is responsible for the management of staff under the Kenya Medical Supplies Act. Therefore, the Ministry should not be held liable for the internal human resource functions discharged by an autonomous state corporation.
The ruling reads in part, “What manifests from the foregoing memo is that the concerns raised by the Petitioner were valid and not far-fetched. Given the timing of the Petitioner’s transfer, I am led to conclude that it is highly probable that the same was affected when she raised discrepancies touching on the documents supporting the payment to the firm of Oraro & Co. Advocates”.
The judge noted that the Petitioner was being penalized for performing her duty. All she did was raise discrepancies that were not in conformity with KEMSA’s Standard Operating Procedures relating to payment for legal services.
The ruling further reads,
“In the end, I enter judgment in favour of the Petitioner in the following terms:
A declaration is hereby issued that the decision of the 1st Respondent to transfer the petitioner from Nairobi to Mombasa Regional Depot was in violation of the Constitution and therefore null and void.
An order of certiorari is hereby issued quashing the decision by the 1st Respondent transferring the Petitioner from Nairobi to Mombasa Regional Depot.
The 1st Respondent shall pay to the Petitioner general damages assessed at Kshs 1,500,000.00.