The High Court has extended orders stopping Gitonga Mugambi from taking over as the chief executive officer of National Irrigation Authority, pending the determination of a case before the Employment Court.
Justice Hellen Wasilwa referred the matter to Employment and Labour Relations Court presiding judge Maureen Onyango, who will give directions on Monday.
Mugambi, through lawyer Judith Guserwa, however, protested the move, saying he has been in office since June and cannot be suspended through an interim order.
In August, Activist Okiya Omtatah petitioned court against Mugambi’s reappointment, arguing that the decision was invalid because there was no valid board, after the expiry of the term of independent members.
On June 5, the board recommended the reappointment to Water and Sanitation CS Sicily Kariuki. On June 23, Kariuki reappointed Mugambi for a term of three years, with effect from August 1.
But Omtatah said the only independent member of the board is chairman Joshua Toro, who was appointed by President Uhuru Kenyatta for a term of three years from January 2019 in a Gazette notice published on January 17, 2020.
Omtatah claimed CS Kariuki, through a letter dated June 23, purported to act on the board’s recommendation.
“Due to the above, the recommendation by the board to the Cabinet Secretary for the reappointment of Gitonga Mugambi was invalid as the board could not raise a quorum to transact business,” he argued.
All the other members of the board are representatives of government ministries and the Attorney General.
The activist said the board should comprise nine members, yet it only has five members at the moment, and Section 3(4) of the Schedule to the Irrigation Act, 2019, provides that the quorum for conducting business shall be seven members, including the chairperson.
The activist asked the court to declare the action null and void, given that no valid board was in office after the terms of members appointed under the repealed Act by the President expired in 2018.
Omtatah said whereas Section 11 of the Irrigation Act is silent on the question of competitive recruitment of the general manager, the Constitution, the Public Service Act, 2017, Mwongozo and many government circulars require that appointments to public office be transparent, competitive, inclusive, merit-based, and open to public participation.
“Hence, it is necessary that this court intervenes in the dispute immediately and lays down the law to ensure that the appointment of the new substantive CEO of the authority is done strictly according to the law,” Omtatah said.