Kericho Governor Dr Eric Kipkoech Mutai has been sued for unlawfully appointing an unelected person to perform gubernatorial functions and/or duties for 10 days while he was away.
In a petition filed at the High Court, Dr Mutai is accused of depriving his deputy engineer Fredrick Kipng'etich Kirui of his duties by appointing Ms Rosemary C Rop to perform county executive duties between April 23 and May 3, 2023.
A Kericho resident, Kipkemoi Richard Mutai, is now calling on the High Court to condemn the governor and declare his action in appointing an acting governor unconstitutional and a flagrant violation of the law.
"Just as when the president is out of office, his deputy takes over, so too does a deputy governor take over when the governor is out of office for some reason," says lawyer Geoffrey Lang'at in the case he filed on 15 May 2023.
Mr Lang'at says Dr Mutai, who was duly elected alongside his deputy Fredrick K Kirui in Kericho on August 9, 2022, violated Articles 2,10,47,73 179 (4) and 179 (5) of the Constitution which specifically outline the roles of state officials.
The lawyer says that on 19 April 2023, Dr Mutai appointed Ms Rop, the CEC for Water, Energy, Environment, Forestry and Natural Resources, to carry out his (the governor's) duties during his absence.
In the correspondence, Mr Lang'at outlines that Dr Mutai has appointed Ms Rop to oversee all functions and activities of the county as Governor.
Dr Mutai's communication to Ms Rop reads: "You are hereby appointed to be in charge of all matters in the Executive Office of the Governor during my absence from April 23 to May 3, 2023."
Dr Mutai copied the letter to his deputy Fredrick K Kirui and three other CEC members Ng'etich K Leonard (Finance), Bernard Bii (Agriculture) and Bernard Bii Bii (Health).
The petition says Dr Mutai's actions have deprived his constitutionally-elected deputies of their roles and is therefore asking the court to condemn the governor and declare the omissions illegal.
In the suit, the petitioner, who is also a human rights activist, has named Dr Mutai (the governor), Ms Rop and the Kericho County government as respondents.
"The Governor's decision to arbitrarily strip him of his constitutional mandate and delegate it to a junior officer is contrary to the principles that guide the exercise of authority by a public officer under Article 7 of the Constitution," Lang'at states in the petition.
He adds that Dr Mutai's decision to delegate to Ms Rop "violates the trust and confidence placed in a public officer by Article 73 (1) of the Constitution".
The court has also been informed that Dr Mutai, by bypassing his deputy and delegating a CEC to carry out his duties, has abrogated the constitutional roles conferred on his deputy.
The petitioner says that by delegating Eng Kirui's functions to a CEC member, the Governor has violated the legitimate expectations of the people of Kericho under Article 47 of the Constitution.
The petitioner states: "By arrogating to Ms Rop the powers to exercise the functions of the executive officer of the governor when there is a substantive deputy governor in office drawing a salary from the taxpayers' money, the governor (Mutai) has violated Articles 10 and 232 of the Constitution which require him to be fair and accountable for all administrative actions."
The High Court has also been informed that Governor Mutai unlawfully and unjustifiably decided to remove his deputy from office, thereby disregarding and contravening the objectives of devolution of government, which includes the promotion of democratic and accountable exercise of power under Article 174 of the Constitution.
The petitioner is therefore asking the High Court to grant 11 reliefs, including a declaration that the Governor's decision to delegate the exercise of the executive powers of the office of County Governor contravenes Articles 179(4) and 179(5) of the Constitution which require a Deputy Governor to perform the functions of the Governor in his absence.
The petitioner therefore wants the court to permanently restrain Dr Mutai from delegating the functions of Eng Kirui or reclassifying the constitutional office of the Deputy Governor as not in accordance with the Constitution and the law.
The petitioner is also asking the court to declare Dr Mutai's decision to arbitrarily strip his deputy of his constitutional mandate as unconstitutional, illegal, null and void.
The court is also asked to declare the acts of omission and commission by the Governor as gross violations of the Constitution of Kenya 2010, the County Governments Act No 17 of 2012 and the law.
The petitioner is also asking the court to order Dr Mutai (Governor), Ms Rop and the Kericho County government to pay costs.
