Court quashes appointment of four parastatal CEOs

Chief of Staff Felix Koskei allegedly approved the appointments on May 17, 2024. [File, Standard]

The High Court has quashed the appointment of four top State Corporations Chief Executive Officers (CEOs) including Dr Philip Kiptanui of Moi Teaching and Referral Hospital (MTRH).

Judge Samwel Mohochi also quashed the appointments of Agnes Kalekye as the CEO of Kenya Broadcasting Corporation (KBC), Joseph Kamau of Athi Water Works Development Agency and Abdalla Mohammed of Kenya National Shipping Line (KNSL).

Mohochi declared that Chief of Staff Felix Koskei who allegedly approved the appointments on May 17, 2024, unlawfully usurped powers granted to the board of state corporations.

The court ruled that the announcement, shortlisting, interview and appointments of the four was illegal and unconstitutional.

The court declared that the appointments did not meet the requirements of the National Values and principles of Governance and Public Service on appointments in the Public Service.

According to Mohochi, Dr Kiptanui’s appointment, communicated via a press release in May 2024, did not have any constitutional or statutory provisions, making the same null and void.

“A Declaration is made that there is no requirement by boards of state corporations requiring them concurrence of their appointment with CoS Koskei or any other officer,” ruled Mohochi.

The court also ruled that the Public Service Commission (PSC) and the Attorney General (AG) failed to advise the corporations on the correct way of handling appointments.

While restricting the four from performing the CEOs roles for the four agencies, Mohochi compelled the boards to initiate proper and legal process of filling the positions of CEOs.

According to Mohochi, MTRH irregularly sought refuge under the data protection Act and official secrets Act as a basis of not tabling any single documents to justify the integrity of the process.

He further claimed that Kiptanui was conflicted when he participated in his interviews by formally convening the board meeting to consider his application.

“The public bodies were to justify the recruitment as strictly complying with the constitutional tenets. They were unable to present to the court an auditable paper trail vouching for the integrity of the recruitment process,” ruled Mohochi.

He also noted that MTRH conceded that it did not comply with Chapter Six on integrity during the recruitment.

Although the corporations had the opportunity to demonstrate that the process of recruitment was constitutionally compliant, Mohochi ruled that they opted to hide under statutory instrument.

“Evidence of the shortlisting criteria and scoring and deliberations on affirmative action would have effortlessly exonerated them from blame,” noted Mohochi.

Kalekye was faulted for failing to annex any of the documents referred to as exhibits in her affidavit.

“Following allegations of failure to adhere to the constitutional standards of recruitment, the corporations were expected to lay bare their assertions but they failed to demonstrate.”

The court further held that the appointees should have proved their suitability using clearance certificates from statutory bodies before employment and not after.

Mohochi called out the board for failing to demonstrate through evidence that they independently recruited their CEOs as legally mandated.

Further, he maintained that the alleged requirement for consensus with Koskei in such recruitment was not anchored in law and the same should have been done by the board.

The ruling followed a petition by Nakuru Surgeon Dr Magare Gikenyi and six others, who challenged the recruitment process, saying they were opaque and unlawful.

They claimed that it was unlawful for the state corporations to seek concurrence of their appointments with Koskei.

“We challenge the skewed and ethnic based appointments of CEO and other staff at MTRH because it is against constitutionalism and the rule of law,” the petitioners deposed.

The dispute over the appointments started on December 12, 2023, when MTRH and KNSL published an advertisement inviting qualified persons to apply for the CEO's positions.

Court records show that eight candidates were shortlisted and invited for an interview on March 4, 2024.

On May 17, 2024, Government Spokesperson Isaac Mwaura issued a press release announcing the appointments to various state corporations, saying the same was after a competitive process. The same was gazetted.

However, the court records show that Mwaura faltered when he announced that the appointments were in concurrence of Mr Koskei, raising concerns.