High court orders Nairobi Water MD Nahashon Muguna to vacate office in five days

The Employment and Labour Relations Court has halted the unlawful extension of Nairobi City Water and Sewerage Company's (NAWASCO) Managing Director, Eng Nahashon Muguna, for three years.

Eng. Muguna's contract as the MD is expiring on May 27, the same date he turns 60, but the NCWSC Board had extended his term in office to May 26, 2028.

Lady Justice Hellen Wasilwa said Eng Muguna did not prove possession of specialised expertise or exceptional competencies to justify continuation of his services despite express statutory limitations for working after 60.

The Deputy Secretary General of the Kenya Union of Water and Sewerage Employees, George Otieno Owalo who argued that the NAWASCO Board had violated the mandatory retirement provisions by extending the contract, enabling Eng Muguna to remain at the helm of the company for eight years.

He had held the post in acting capacity for a period of two years prior to his confirmation to be the substantive MD.

Owalo had urged the court to order NAWASCO to advertise and fill the vacancy of the MD through a competitive recruitment process.

The petitioner had argued that not even the Public Service Commission (PSC) has the discretion to whimsically extend service beyond this statutory limit.

"The most notable is the undisputed averment that he (Eng Muguna) held an acting position for two and a half years – a clear breach of Section 34 (3) of the Public Service Act, which categorically caps such appointments at six months," stated Owalo in his petition in court.

"An illegality was perpetuated for two full years, and now, in outright defiance of the mandatory retirement age of 60, they seek to extend his unlawful tenure for yet another two years. What began as a contravention of the law cannot be allowed to conclude in equal disregard of it. The law must be upheld."

Owalo argued that Eng Muguna had a duty to prove exceptional competencies to warrant his continued engagement beyond the express statutory limitations, but his defence was "unsubstantiated claims of strong institutional performance, backed only by his Curriculum Vitae – a document of no evidentiary value in this context".

"With no certifications or substantive proof provided, these claims stand precisely as (Eng Muguna) would characterise them – 'bald' allegations," stated Owalo.

Although Justice Wasilwa did not order the NAWASCO Board to begin the recruitment process to replace Eng Muguna, the fact that his last day in office is Tuesday next week and his tenure cannot be extended, the Board will have to find his replacement.

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