Three file petition seeking to overturn Kemsa CEO’s appointment

Three petitioners have gone to court to challenge the appointment of Waqo Dulacha Ejersa as chief executive of the Kenya Medical Supplies Authority (Kemsa), saying his assumption of the role breached the Constitution and leadership and integrity laws.

In the petition filed at the Employment and Labour Relations Court, Nakuru-based doctor Magare Gikenyi, activist Dishon Keroti Mogire, and Philemon Abuga Nyakundi argue that Waqo is unfit to hold public office after contesting the 2022 General Election while still employed by the Ministry of Health.

They claim he later returned to the ministry without following proper reinstatement procedures and was eventually appointed Kemsa boss through an irregular process.

“The first respondent, having been a public servant since 1996, failed to resign before contesting for the Saku constituency seat in Marsabit in the 2022 general elections,” the petition reads.

“After losing, he quietly resumed duties at the Ministry of Health and was promoted to senior deputy director of medical services in August last year, contrary to the law.”

Waqo vied for the Saku MP seat on a Jubilee Party ticket and came second with 6,441 votes to Col (Rtd) Rasso Dido Ali.

The petition cites Article 99(2) of the Constitution, which requires public officers seeking elective office to resign at least six months before the election.

Gazette Notice No. 7995, dated June 30, 2022, listed him as a candidate, but the petitioners say there is no record of his resignation.

“He flouted the law, lost the election, and went back to the Ministry of Health through the backdoor,” says Magare. “Now he’s been handed the top job at Kemsa, how can we speak of integrity in public service?”

The petition also challenges the recruitment process. It states that the Kemsa board interviewed candidates on June 28, 2024, and shortlisted three names: Andrew Mutava Mulwa, Waqo Dulacha Ejersa, and Hussein Adan Mohammed.

The then Health Cabinet Secretary, Susan Nakhumicha, picked Mulwa as her preferred candidate and sought approval from the Head of Public Service on July 9, 2024.

Following the dissolution of the Cabinet on July 11, 2024, the board is accused of ignoring the CS’s choice and appointing Waqo directly on July 23, 2024, in what the petitioners call a “usurpation” of the Cabinet Secretary’s powers.

“This amounted to a breach of the law and an appointment of a person lacking personal integrity,” the petition says. “It undermines the values of Chapter Six of the Constitution.”

The case names 11 respondents, including Waqo, Kemsa, the Ministry of Health, the Public Service Commission, the Ethics and Anti-Corruption Commission, and the Attorney General. The Independent Electoral and Boundaries Commission has been listed as an interested party for clearing Waqo to run without confirming compliance with election laws.

The petitioners want the court to nullify Waqo’s appointment, declare his return to public service and promotion illegal, and hold the respondents accountable for enabling or failing to stop what they call an unlawful appointment.

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They also allege the Kemsa board engaged in irregular restructuring, creating positions such as “Officer, Board Secretariat” without a legal basis.

“This is not a personal war. It is about defending the Constitution,” Magare says. “Public officers cannot pretend to serve while eyeing political seats. That’s deception, and it erodes the integrity of public service.”

In reply, Waqo and several other respondents have filed preliminary objections, saying the petition is time-barred under legal provisions limiting the timeframe for filing certain challenges. They also question the court’s jurisdiction over the matter.

The case is awaiting a hearing.