The High Court has declined a petition to stop former Murang'a governor Mwangi Wa Iria from continuing to serve as chairperson of the Public Procurement Regulatory Board due to alleged integrity queries related to corruption.
Justice Benjamin Musyoki, sitting at the Anti-Corruption & Economic Crimes division in Milimani, Nairobi, said the application filed by Mr Kiroko Ndegwa contained scant information.
For instance, the judge said although it was stated that Mr Wa Iria was facing forfeiture proceedings involving Sh542 million, neither Mr Ndegwa nor the Ethics and Anti-Corruption Commission (EACC) furnished the court with pleadings of the suit or even the case number.
"The petitioner and the EACC have given this court very scanty information and material which, in my opinion, are not sufficient to warrant giving conservatory orders sought by the petitioner," said the judge.
The petitioner also failed to exhibit the charge sheet of a corruption case, in which Mr Wairia was charged at a magistrate court in 2024.
"It was important that this court be supplied with at least particulars and details of the case, especially that the same is said to have been originated by the EACC. It is not enough for the EACC to tell the court that it is supporting the application without giving details, especially where the information and evidence supplied by the petitioner is not sufficient," said Justice Musyoki.
Mr Ndegwa, in the application filed in court on January 6, 2025, wanted court to block Mr Wairia from working in the public office or deriving any salary/benefits from the position pending determination of the petition.
His application was opposed by the Attorney General and the Cabinet Secretary, National Treasury and Economic Planning, who vouched for its dismissal.
Mr Ndegwa claimed that the former governor was unfit to hold public office owing to his history of alleged lack of integrity.
He raised four grounds, the first being that Mr Wa Iria had been charged with various corruption-related offences in the Milimani Chief Magistrate's Anti-Corruption Court in 2024. To prove that fact, the petitioner exhibited a communication from the EACC dated April 15, 2024.
It was further alleged that EACC has an adverse report against Mr Wa Iria and that he was facing a forfeiture suit instituted in 2022 for embezzlement of Sh542 million public funds when he was serving as a governor between 2013 and 2022.
The petitioner added that Mr Wa Iria was impeached by the County Assembly of Murang’a twice in October 2016 and 2017 over violation of the law and gross misconduct.
He alleged violation of the constitutional duty of the appointing authority to ensure that the person appointed to the office in question meets the threshold of integrity.
EACC did not file any documents in opposition or support of the application but its lawyer indicated to the court that the commission was not opposing the application.
Integrity Centre in Nairobi which houses the Ethics and Anti Corruption Commission offices.
Photo credit: Pool I Nation Media Group
In the ruling, the judge stated that Mr Wa Iria may have integrity issues which needs to be considered but "it is my opinion that suspending him in such circumstances would be tantamount to violating his rights to be presumed innocent until proven guilty".
He observed that although the petition is not frivolous and raises substantial constitutional issues, there was no sufficient grounds for the court to grant the application.
The judge said it would be unfair to hold that Mr Wa Iria is unsuitable to hold public office without any conviction in the criminal case.
"The petitioner has also argued that Mr Wairia was found guilty of having violated the law and has quoted several pages of the report of the committee of the Senate which indicts him. It should be noted that for one to be declared unfit to hold public office, the acts said to constitute a violation of the law must meet a threshold of gross violation or must have led to a conviction by the court or any other statutory or constitutionally mandated body," said the judge.
"Without such a return, it would be unfair to hold that Mr Wairia is unsuitable to hold a public office at the interlocutory stage".
The Attorney-General and the Cabinet Secretary for the National Treasury, in their opposition to the application, stated that the report of the Senate’s Select Committee the petitioner sought to rely on was not authoritative on the integrity of Mr Wa Iria.
They added that the impeachment was dismissed and where violations of the law were proved, they were found not to have met the threshold of gross violation.
In addition, they said that the pendency of investigations by the EACC could not be a bar to appointment to public office.
The judge was informed that the mandate to evaluate the suitability of the appointment of a person to public offices was on the EACC and the courts should apply the doctrine of avoidance and leave the matter to the Anti-Corruption agency.
