The High Court in Nairobi has locked Director-General of Nairobi Metropolitan Service Maj-Gen Mohammed Badi out of the cabinet.
Justice Anthony Mrima has quashed Badi’s appointment to the cabinet and barred him from attending meetings called by either the cabinet committees or for full cabinet meetings.
By co-opting the senior military officer in the day-to-day running of the government, President Uhuru Kenyatta triggered the court battle lodged by Kandara Member of Parliament Alice Wahome.
Wahome, who is also a lawyer, is a close ally of Deputy President William Ruto and she has been drumming support for him to succeed Uhuru in 2022.
At the time of appointing Badi, Uhuru had fallen out with the former Nairobi Governor Mike Sonko and who is allied to Dr Ruto.
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Rushing against time and looking to leave a legacy, Uhuru has been appointing ex-officers or seconded ones from the military and the police to fix moribund institutions.
President Kenyatta invoked Executive Order No. 3 of 2020 and directed Badi shall henceforth attend all meetings of the Cabinet and its Committees.
Major-Gen Badi is on secondment from the military.
Before his appointment to NMS, Badi was a senior directing officer in charge of Kenya Air Force staff training at the National Defence College in Nairobi.
He served as the base commander in charge of Moi Air Base after he was promoted to the rank of brigadier in 2014.
The win for Wahome now puts to check Uhuru’s trusted man for the city fixing legally far from him and putting into jeopardy the NMS arrangement with the city-county as he can no longer present the budget for the entity directly to the cabinet for approval.
From appointing the National Intelligence Service director Maj Gen (rtd) Philip Kameru, to government spokesman Col (rtd) Cyrus Oguna, Asset Recovery Agency (ARA) boss Col Alice Mate, the president has been lining up military officers in the government.
According to Justice Mrima, it is illegal for the General to sit in cabinet meetings as he is not a President, Deputy President, Attorney General or Cabinet Secretary.
He found that the president has no powers to choose who sits in the cabinet, adding that the Constitution does not leave room for him to choose other persons to attend the meetings.
He dismissed Attorney General Kihara’s argument that the Constitution gave Uhuru a leeway to invite any Kenyan to sit in the cabinet.
“I find the interpretation by the Respondents legally untenable, too far-fetched and not in tandem with the aspirations of Kenyans. If Kenyans had wanted to credit the President with the discretion to appoint any other person or persons into the Cabinet, I believe the Kenyans would have expressly stated so in the constitution,” he ruled.
The judge added that if Kenyans wanted persons other than the big four in the cabinet, they would have spelt out their roles.
Justice Mrima stated that no one knows what Badi does in Cabinet. He noted that the AG and the senior officer in the military did not reveal to the court what he has been doing since last year.
At the same time, the judge pointed out that the general appointment was not sanctioned by Parliament.
He stated, “The term of office of the third respondent in the cabinet also remains an illusion. The retention of the third respondent into the Cabinet no doubt raises far too many unanswered questions.”
In this case, Wahome argued that Badi was introduced into the cabinet without following the process outlined in the constitution. She termed him as a stranger in the cabinet.
She asserted that his appointment was not backed by any law.
While urging the court to dismiss the case, the AG argued that she did not plead her case with precision and her case does not particularize the exact provisions of the constitution that were alleged to have been violated.
