Court nullifies appointment of four State corporation CEOs, faults Felix Koskei's role

Court nullifies appointment of four State corporation CEOs, faults Felix Koskei's role
Court nullifies appointment of four State corporation CEOs, faults Felix Koskei's role - A view of the Nakuru Law Courts. (Photo: Courtesy)
A view of the Nakuru Law Courts. (Photo: Courtesy)

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The judge found that the recruitment process failed to meet constitutional standards of transparency, accountability and fair competition, and declared that the boards of State corporations had improperly ceded their statutory mandate.

The High Court has nullified the appointments of four chief executive officers of State corporations, ruling that the recruitment process violated the Constitution and unlawfully involved the Office of the Chief of Staff in a role reserved for the institutions' boards.
In a judgment delivered on Thursday, Justice Samwel Mohochi quashed the appointments of Dr Philip Kiptanui as Chief Executive Officer of Moi Teaching and Referral Hospital (MTRH), Agnes Kalekye at the Kenya Broadcasting Corporation (KBC), Joseph Kamau at Athi Water Works Development Agency and Abdalla Mohamed Hatimy, whose appointment at the Kenya National Shipping Line was also challenged in the petition.
The judge found that the recruitment process failed to meet constitutional standards of transparency, accountability and fair competition, and declared that the boards of State corporations had improperly ceded their statutory mandate.

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Justice Mohochi held that the alleged concurrence by Chief of Staff Felix Koskei before the appointments were announced had no legal basis.
"There is no requirement by boards of State corporations requiring them to seek concurrence of their appointments with the Chief of Staff or any other officer," the judge ruled.
The court further declared the entire recruitment exercise, including the advertisement, shortlisting, interviews and appointments, illegal and unconstitutional. It barred the four officials from continuing to serve in their respective positions and directed the boards to commence fresh recruitment processes in accordance with the law.

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The judge criticised the institutions for failing to produce documents demonstrating that the recruitment process complied with constitutional and statutory requirements.
"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," Justice Mohochi said.
The court was particularly critical of MTRH, noting that it invoked the Data Protection Act and the Official Secrets Act instead of producing records to defend the integrity of the recruitment.
The judge also observed that Dr Kiptanui participated in board deliberations relating to his own application, raising concerns over conflict of interest.
Justice Mohochi further faulted the Public Service Commission (PSC) and the Attorney General for failing to guide the State corporations on the proper legal procedure for appointing chief executives.
The case was filed by Nakuru surgeon Dr Magare Gikenyi and six others, who argued that the recruitment process was opaque, unconstitutional and influenced by unlawful executive interference.
The petitioners also alleged that the appointments disregarded the principles of equity, integrity and merit enshrined in the Constitution.

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