• President appoints Gershom Otachi as chair along with members former MP Esther Murugi, James Tuitoek, Gertrude Nguku, Reginald Okumu, Samwel Kambi, Hubbie Al-Haji, Alister Mutugi and Tiya Galgalo.
• Court prohibits chairman and members from being worn in or serving until the case is determined.
The newly appointed chairman of the National Land Commission and his members will not assume office after the Labour Court on Thursday barred their swearing-in.
Justice Stephen Radido temporarily suspended the Gazette notice appointing them and barred them from assuming office.
The suspension follows an urgent application by activist Okiya Omtatah asking the court to bar them. He argues that the vetting and approval process in Parliament was a "total sham".
He wants the nine nominations quashed, citing lack of due process.
On Wednesday, President Uhuru Kenyatta appointed Gershom Otachi as NLC chair, alongside commissioners former MP Esther Murugi, James Tuitoek, Getrude Nguke, Reginald Okumu, Samwel Kambi, Hubbie Al-Haji, Alister Mutugi and Tiya Galgalo.
“That in the meantime, in order not to prejudice any of the parties, the court will order that the appointees not be sworn in by the Chief Justice pending appearance before Justice Hellen Wasilwa on October 7,” the court ordered.
They cannot take office until the case is heard and determined.
“If not interdicted, the decision by the President to appoint them ... will be rendered academic," Omtatah argued, citing compelling pubic interest.
The activist challenged the constitution of the selection panel for the NLC by the President without inclusion of one set of stakeholders as prescribed by Parliament in the First Schedule to the NLC Act.
The principle of transparency requires the selection panel to publish the order of suitability of appointment for all individuals interviewed for the two posts.Activist Okiya Omtatah
The section states that the panel includes two persons of the opposite gender, nominated by the Governmental Organisations Council, who have demonstrated competence and capacity in matters related to natural resources.
Omtatah accuses the selection panel of conducting the recruitment exercise in an opaque manner and failing to publish the results of the interviews it conducted.
He claims that the panel recommended to the President the appointment of persons who were neither shortlisted nor interviewed for those positions.
Omtatah cites "the decision by the President to nominate as members of the commission two individuals, Esther Murugi and Tiya Galgalo, who were neither shortlisted nor interviewed for the position".
“The principle of transparency requires the selection panel to publish the order of suitability of appointment for all individuals interviewed for the two posts,” the activist argued.
Omtatah said the Executive also erred by failing to uphold regional balance while nominating the persons to be approved for NLC vacancies.
He had moved to court in August to stop Parliament from vetting the recently nominated chair and members of the NLC.
After the President formally appointed the team, Omtatah amended that petition, challenging the appointment of the selection panel.
The case will be mentioned on Monday for an interparties hearing.
(Edited by V. Graham)