The government has suffered a major setback after the High Court temporarily suspended its recent appointments of four public officials, including Phillip Kiptanui Kirwa as CEO of Moi Teaching and Referral Hospital (MTRH) and the Managing Director of Kenya Broadcasting Corporation (KBC) Agnes Kalekye pending determination of a lawsuit lodged in court.
Justice Samwel Mohochi issued the conservatory orders barring four public officials namely MTRH CEO Kirwa, KBC MD Kalekye and Joseph Kamau as CEO of Athi Water Works Development Agency, Abdallah Hatimy as CEO of Kenya National Shipping Line Ltd from assuming their respective offices after a Nakuru based doctor Magare Gikenyi and five other activists challenged their appointment terming them illegal and unconstitutional.
"That a conservatory order is hereby issued suspending the press release, gazette notice and or any other document or authority appointing the 20, 22 and 24 respondents as chief executive officer or managing directors of the 21, 23 and 25 state corporations, respectively," Mohochi stated.
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The Judge also barred the government from implementing the press release and gazette notice dated May 17, 2024, appointing four officials pending the hearing and determination of the case.
Further, Justice Mohochi has also restrained Kirwa from continuing to perform any roles as the CEO of MTRH whatsoever until the inter-parties hearing of the case.
The judge made the directive after certifying the case by Gikenyi as urgent and directed all parties involved to file their responses within seven days before the mention of the case on June 11, 2024.
In their case, the petitioners led Gikenyi wants the impugned appointment revoked on grounds that the same bypassed legal protocol, as they were allegedly made in consultation with the Head of Public Service Felix Koskei, despite the law requiring such appointments to be made by the President.
According to the petitioners namely Gikenyi Philomena Nyakundi, Pauline Nduta, Linah Kingsley Shallum Nyakundi, Jamlick Orina and Agnes Wazuu, the entire process of recruitment of the public servants lacked transparency and disregarded established procedures, statutory regulations, and constitutional requirements.
They state the whole process of appointing the officials was shrouded in secrecy.
"The respondents have not given to the public the criteria they used to arrive at shortlisted candidates," the petitioners say.
In their suit papers, the petitioners argue that despite Persons Living with Disability (PWDs) having applied none was considered.
On his side, Gikenyi contends that there was no transparency at all particularly concerning Kirwa's appointment at MTRH.
He adds that MTRH appointments have led to skewed appointments where one community takes a huge chunk of staff appointments leading to ethnic marginalization, which is an unfair labour practice contrary to articles 41 and 232 of the constitution.
"Despite MTRH promoting itself as an equal opportunity employer, the shortlist for the CEO position included five candidates from a single region, potentially leading to an overrepresentation of a specific ethnicity in the hospital's senior management," the petitioners state.
MTRH irregular recruitment
Gikenyi adds that "despite the fact that MTRH hospital being a national Level 6 teaching and referral hospital (as opposed to a regional/local hospital) the respondents shortlisted five (5) out of the 8 candidates from one region and/or ethnicity (all 5 from Kalenjin community with 4 being Nandi subtribe and 1 Keiyo subtribe), all from former Rift valley province."
The petitioner highlighted the lack of diversity in the shortlisted candidates, stating that only one woman was included, while a qualified disabled applicant was inexplicably excluded.
According to the petitioners, a plain reading of Section 5 of Kenya Broadcasting Corporation(KBC) Act Cap 221 of the laws of Kenya and Section 6 of State Corporations Act Cap 446 of the laws of Kenya does not show any role of chief of staff and head of the public service in the appointment of its managing directors and or chief executive officer.
"The appointment of 4, 20, 21 and 22 respondents is void. Then one wonders what was the rationale of appointing the said officers in concurrence to an office which the law does not envisage in appointment of state corporations. A party cannot assume powers not granted by law, and where the law does not anticipate delegation, and then delegating those powers is illegal and unconstitutional," they say.
The petitioners aver that if the unlawful actions of the government are not stopped they will lead to loss of public confidence and outright abuse of political power to the detriment of many other communities in the county.
"Unless the court does not stop the illegal appointments, the continued illegal appointment, constitutional violations will continue against principals of good governance," Gikenyi states.
In the case, those sued include Head of Public Service Felix Koskei, Attorney General Justin Muturi, and the Public Service Commission.