File goes missing in case against Kibaki

A file bearing details of a case in which retired President Kibaki was sued over appointments he made at the Kenya Seed Company (KSC) while in office is missing. 

Court of Appeal judges Phillip Waki, Patrick Kiage, and Karanja heard that the file went missing when the appeal was lodged.

Lawyer Stephen Mwenesi, who represents the aggrieved former KSC board members, asked the court to adjourn the case to allow him take further instructions from his clients.

But the respondent’s lawyer Muiruri Ngugi said he did not know the file was missing, adding that the case had been overtaken by events.

After Justice Waki questioned Mwenesi for some time, it emerged that the suit cannot be actualised even if the petitioners won.

“You have a duty to speak to your clients and advise them accordingly that they are in an expedition of incurring costs. Can one sue the President?” asked the judge.

On December 17, 2003, the President acting under powers granted by the State Corporations Act appointed and gazetted a new chairman to the KSC board. On the same date, the then Minister for Agriculture (the second respondent in the case) appointed a new managing director.

On December 24, 2003, a new KSC board was gazetted. The Board members prior to the new appointments led by the then Managing Director Nathaniel Tum and Company Secretary Zakayo Cheruiyot moved to court to challenge the decision.

Then High court judge Kihara Kariuki dismissed the case on grounds that Section 14 (2) of the Constitution shields the President from all legal proceedings.