Evans Mukolwe

By Wahome Thuku

Nairobi, Kenya: On October 2, 2003 the Kenya Wildlife Service (KWS) board of directors appointed Evans Arthur Mukolwe as the Chief Executive Officer.

Mukolwe was poached from the World Meteorological Organisation headquarters in Geneva, Switzerland. The following day he was gazetted as the new CEO. A year later on November 12, 2004, Mukolwe was suspended by the Tourism and Wildlife Permanent Secretary.

In December the same year, (former) President Mwai Kibaki appointed Dr Julius Kipng’etich as the new CEO of the KWS.

About year later on January 20, 2006, Mukolwe was arrested and charged before a magistrate’s court with four counts of corruption. Mukolwe was tried and convicted but successfully appealed to the High Court and on November 16, 2010 the conviction was set aside.

In 2005, he had sued KWS seeking damages for unlawful suspension. That case is still pending in court.

On January 14, 2011, Mukolwe went to the KWS asking to be reinstated as CEO. The board informed him that they needed a court order to reinstate him. On November 21, 2011, he sued the Government and KWS seeking to have them ordered to reinstate him as CEO.

He argued that he had not been given reasons for his suspension and that the PS had no powers to suspend him. Further, he said, failure to reinstate him breached Section 62(3) of the Anti-Corruption and Economic Crimes Act.

The KWS filed an objection saying the case was out of time. Through their lawyer Patrick Lutta, they argued that Mukolwe had failed to disclose to the court that he still had a similar case in court pending between him and the KWS filed in 2005.

Lutta submitted that the suit was frivolous, vexatious and an abuse of court process. The application was defective and incompetent. He added that someone else had already been appointed as CEO of the KWS.

He argued that Mukolwe’s appointment was revoked by a gazette notice dated December 24, 2004, which appointed Dr Kipng’etich as CEO. Mukolwe attacked the appointment of Kipng’etich as being malicious and illegal arguing that his own appointment had never been terminated. He claimed the gazette notice naming him as CEO had never been revoked.

He argued that the 2005 case was seeking damages for unlawful suspension and the present application was seeking reinstatement and payment if salary and allowances to the tune of Sh135.5 million withheld during suspension. The AG and the PS did not file any responses.

Along the way, Kipng’etich left KWS and on October 5, 2012 William Kiprono Kibet was appointed the new CEO. On October 26, 2012, Mukolwe filed a second application on the same facts but this time attacking the appointment of Kibet the same way he did with Kipng’etich.

He sought orders to stop the Government from gazetting Mr Kibet and forbidding him from taking over the office. He also sought orders to stop the Government from terminating his contract and not blocking him from resuming his office.

Mukolwe also asked for an order to quash the appointment of Kibet saying the President had no powers to appoint the CEO and only the board could legally do so. The Government opposed the application describing it as misapprehension of the law and unnecessary exploitation of judicial resources.

They argued that Mukolwe’s contract was for three years and was deemed expired at the end of the term if either of the parties did not renew it.

The KWS adopted its opposition filed in the 2011 case. They argued that Mukolwe’s claim on Kibet’s appointment had no basis.

 “There is no vacancy in the office of CEO at the KWS and the orders sought cannot be issued,” lawyer Lutta submitted. The two applications of were consolidated and heard together by Justice Weldon Korir.

 Inordinate delay

The judge singled out four issues for determination. Had Mukolwe’s appointment indeed been terminated? If it had was the action lawful? Did he deserve an order for reinstatement and who would meet the costs of the applications?

The judge pointed out that Mukolwe had no case regarding the appointment of Kipng’etich as he had not even named him as a party in the applications. No order was sought in 2004 to quash his appointment and the application by Mukolwe was brought seven years later in 2011 without explaining the inordinate delay.

 “In my view, the application (Mukolwe’s) appointment as the Director of KWS was terminated on 24th of December 2004 when somebody else was appointed to the office,” the judge held. Justice Korir said the provisions of the Anti-Corruption and Economic Crimes Act could not assist him as he had not been charged in court when Kipng’etich was appointed to replace him.

 “He was charged after he had been removed from office and the provisions of the said Act do not apply in the circumstance of his case,”

Mukolwe had also argued that Kibet was not appointed through a competitive process. The court held that he had not produced any evidence to support his claim.

 “In any case, he has such a personal interest in the matter to the extent that any ordinary bystander would conclude that this challenge on the appointment of William Kiprono Kibet is driven by jealousy and malice,” the judge concluded. “His appointment having been terminated in 2004, then he has no reason for questioning the appointment of Mr Kibet as a replacement of Dr Kipng’etich,”

The judge held that the order to compel KWS to pay him the money would only be made if the case filed in 2005 for damages is concluded.

 “As of now KWS has no statutory obligation to pay Sh135,543,500 to the applicant” Justice Korir concluded that Mukolwe no longer had a contract with KWS. He had not established any reasons why Kibet’s appointment should be quashed.

The court pointed out that the dispute between Mukolwe and KWS was one of employee and employer that would have been best resolved through other legal channels.

With that Mukolwe’s two applications of 2011 and 2012 were dismissed with an order that he pays KWS, the Government all the costs of the cases.