KBC MD Waithaka Waihenya asks court to suspend removal

The Kenya Broadcasting Corporation (KBC) Managing Director Waithaka Waihenya is fighting to keep his job following the nullification of his appointment by a Nairobi court.

Mr Waihenya has filed an application at the Industrial Court seeking to have the nullification suspended, pending the hearing and determination of a case at the Court of Appeal.

Waihenya says if the nullification by the Industrial Court made on December 5, 2014 is not suspended, he stands to lose the job as the order will be enforced against him by the board of the State broadcaster.

"I will be compelled to vacate office which will be detrimental to my livelihood as a family man, upon whom my family depends for their daily needs. Furthermore as a man of good standing, I will be subjected to humiliation and this will lead to disruption of my career life, which I have worked hard to build," he said in his court papers.

Age limit

Waihenya's appointment was declared null and void following a petition by political activist Jared Juma filed in 2012. Waihenya was appointed MD when the position fell vacant in 2010 following the removal of David Waweru.

He first assumed the office in an acting capacity, and the position was subsequently advertised on September 8, 2010 in the local media. One of the requirements was that an applicant for the post had to be below 45 years old.

Mr Juma argued that the appointment was unconstitutional because the corporation set the age limit to favour Waihenya. He claimed that by arbitrarily limiting the age of the MD to be below 45 years, his rights and those of other citizens were violated contrary to Article 27 (4) of the Constitution that prohibits discrimination on the basis of age.

The court, in nullifying the appointment, held that the decision to limit the age was unreasonable and amounted to discrimination on grounds of age.  "If the corporation acted reasonably, it could not have decided that the MD should be below 45 years," the court ruled.

Waihenya is now challenging the constitutionality of the ruling, saying if he is removed, he will be denied access to justice and a right to a fair trial.

He says if the ruling is not suspended, he would suffer irreparable harm, loss and damage, which could not be compensated by any damages even if his appeal succeeded.

He wants the Court of Appeal to decide whether the protection against discrimination is absolute and unlimited. He also wants the court to decided the extent to which the right against discrimination should be balanced with the rights of the corporation to govern its internal affairs.

Monetary damages

But the petitioner says even if Waihenya vacates office but wins the appeal, he could be compensated with monetary damages. Juma says since Waihenya's appointment was declared unconstitutional, "no right, be it economic or otherwise, can accrue from an illegal contract".

He said the public has already suffered harm since Waihenya was unlawfully serving his second term in office.

"The corporation will not grind to a halt due to his absence," Juma said. The case will be heard early next month.