Legal battle looms as Sheria Mtaani challenges extended tenure of Privatisation Commission appointees

An activist has moved to court to block seven newly appointed members of the Privatisation Commission from assuming office, setting the stage for a fresh legal battle before the Employment and Labour Relations Court.

In an urgent judicial review application, lobby group Sheria Mtaani, represented by activist Shadrack Wambuli, is challenging the government’s decision to grant the commissioners a three-year tenure, arguing that it contravenes the Privatisation Act.

The petition names the Cabinet Secretary for the National Treasury and the Attorney General as respondents, while the commissioners—including Edward R. Kobuthi, Irene Njeri Wanyoike, Celine Anyango Orata, David J. O. Nyakang’o, and Wellington Pakia Godo—are listed as interested parties.

Wambuli contends that Gazette Notice No. 5054 of April 25, 2023, unlawfully extended the commissioners’ terms beyond the limits set by law. According to the application, Section 6(1) of the Privatisation Act stipulates that both the chairperson and members of the commission are to serve a one-year term. He argues that the three-year renewable term granted to the appointees “amounts to a blatant disregard of the statute and grants them undue advantage.”

Court documents indicate that Sheria Mtaani is seeking orders of prohibition to bar the commissioners from taking office, orders of certiorari to quash the Gazette Notice, and orders of mandamus compelling the Treasury Cabinet Secretary to amend the appointments to comply with the law.

Avoidable legal and financial risks

Wambuli warns that “allowing the commissioners to begin work while the legality of their appointments remains in dispute would amount to legitimising an illegality.” He further argues that any decisions made by the commissioners during the contested tenure could later be invalidated, exposing the public to avoidable legal and financial risks.

The application has been certified as extremely urgent, with Sheria Mtaani insisting that the public interest lies in preventing continued occupation of office under what it terms an irregular and unlawful term. The lobby argues that the matter should be prioritised to safeguard statutory compliance and maintain public confidence in the governance of state corporations.

Judge Byram Ongaya has directed that the application be served immediately and scheduled the matter for an inter partes hearing—or further directions—on December 9 at 9:30 am. He also noted that the case would proceed as soon as it is reached on the cause list, including via video link if necessary.

In a notable development, Justice Ongaya encouraged the parties to consider an out-of-court settlement, citing Sections 5 and 6 of the Privatisation Act, 2018. He urged both sides to explore the possibility of recording a consent on the next mention date, saying such a move would “promote a just, proportionate and expeditious resolution of the dispute.”

Other Topics To Read

• National
• Employment and Labour Relations court
• Privatisation Act
• Privatisation Commission
• Sheria Mtaani
• Judicial review
• public interest litigation
• Legal battle looms as Sheria Mtaani challenges extended tenure of Privatisation Commission appointees
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