Former deputy Senate Speaker Kembi Gitura will remain as the chair of the board of the Communications Authority of Kenya after a court dismissed a case challenging his appointment.
A citizen, Benedict Kabugi Ndung'u, had asked the Employment and Labour Relations Court to nullify the appointment because it was irregular.
Gitura had in March been moved from the Kenya Medical Supplies Authority to the communications regulator as a probe into mismanagement of Covid-19 tenders intensified. Several MPs criticised President Uhuru Kenyatta for the decision.
On Thursday, Justice Nzioki Makau ruled that it was the discretion of the President to appoint the chair of a state agency. The President on March 10 gazetted Gitura's appointment for three years starting April 18.
“From the foregoing, the order that commends itself is one dismissing the judicial review in its entirety and given the fact that in public interest matters, a court is well guided to consider not granting costs,” Judge Makau ruled.
Ndung'u had sued on March 19, saying the President failed to form a select panel to conduct the recruitment of the board's chairman. That is what the law spells out in sections 6 and 6B of the Kenya Information and Communications (Amendment) Act.
"The impugned appointment is by all means procedurally flawed and ultra vires the lawful powers bestowed upon the appointing authority.
"The appointment of the interested party (Gitura) herein is arbitrary and excludes other eligible members of the public from competitively bidding for the position," Ndung'u says in the court papers filed through lawyer Adrian Kamotho.
The petitioner said the decision to appoint was unilateral and a violation of the citizenry's right to equal benefit and protection of the law.
Through the Statute Law (Miscellaneous Amendments) Act, 2018, Parliament had amended Kenya Information and Communications (Amendment) Act to allow for direct appointment of CA board chair and members.
The changes gave the President and the ICT Cabinet secretary powers to appoint the officials without a selection panel to advertise a vacancy and invite applications.
Kabugi said the amendments to the Kenya Information and Communications (Amendment) Act were declared unconstitutional by the High Court, hence the requirement for a selection panel was mandatory.
"The appointment of the interested party herein is therefore unknown to law and thus untenable. For purposes of law and order, the appointment of the interested party ought to be quashed at the earliest stage to pave way for due process in the filling up of the vacancy of the chairperson of the board of the 2nd respondent," he added.
(edited by o. owino)
