Court nullifies Ferdinand Waititu post after he fails integrity test

            Former Embakasi MP Ferdinand Waititu at Milimani Law Courts. PHOTO: EVANS HABIL/STANDARD]


Nairobi, KENYA: The High Court has nullified the appointment of former Embakasi MP Ferdinand Waititu as the chairman of the Athi Water Services Board (AWSB).

“The decision of appointment through gazette notice is hereby quashed and the appointment of the interested party (Waititu) is null and void and therefore dismissed,” Justice Mumbi Ngugi ruled in a petition filed by businessman Benson Ritho.

Ritho’s lawyers argued that Water and Environment Cabinet Secretary Judi Wakhungu made an irregular appointment of Mr Waititu without considering his integrity.

They said Waititu has in the past demonstrated bias for the Maasai community and allegedly grabbed the petitioners’ land.

The court ruled that Wakhungu did not regard national principles of governance that are binding to all State officers in making the appointment. Ngugi said it was Wakhungu’s mandate to ensure that an appointee meets the integrity and competence threshold.

The judgment, however, did not point out the specific integrity questions that led to the nullification of the appointment. Justice Ngugi reiterated that the court was not reviewing Waititu’s character, but that it was looking into the process of involving public participation in appointing public officers.

She also said the court was not making judgment on the character or competence of the appointee, but on how the Cabinet secretary made the appointment.

The ruling annulled the Attorney General’s position that the court did not have jurisdiction to handle the fraud allegations raised by the petitioner.

“EACC should have been asked to look into fraud allegations; it is not for the petitioner to ask the court to overstep into the functions of the graft body,” the AG had submitted.

Justice Ngugi ruled that there was no mechanism provided by the law to address the issues raised by the petitioner but that the applicant had a right to question matters that seemed to violate the law under Article 215.

Judicial activism

On the contestation that Waititu had assumed office and the court could not oust him, the judge said that the court had full responsibility to review the appointment.

“Even if it was that swearing in had been done. It is not clear according to material available in court whether the interested party (Waititu) had assumed office and thus contests that he is unreachable by court,” she added.

Environment and Water Principal Secretary James Teko Lopoyetum defended the appointment. He said the allegations of failure to meet Constitutional requirements of integrity were not raised by the petitioner during the March 4 elections in which Waititu participated.

Efforts to seek the suspension of the judgment pending an appeal by State Counsel Antony Otieno were opposed by Ritho’s lawyers.

Waititu’s lawyer, Harrison Kinyanjui, criticised the court for allowing “judicial activism” in the name of upholding the Constitution.