The Employment and Labour Relations Court has quashed the appointment of Kenya Rural Roads Authority (Kerra) director-general Philemon Kandie after finding that his recruitment was marred by illegality and procedural impropriety.
Justice James Rika found that the selection of Engineer Kandie was predetermined by the board and that Kerra failed to comply with a provision in the Public Service Manual that requires public service vacancies to be advertised for a minimum of 21 days before the closing date of the advertisement.
The court found that the advertisement for the position of Kerra director-general was rushed and that the outcome of the recruitment process was predetermined.
"The other candidates (for the job) were, in the mind of Kerra ushers, in a procession, where the outcome was predetermined," said Justice Rika.
Applicants for the position were given 13 days to apply, contrary to the 21-day period stipulated in the Public Service Manual.
"The submission by Kerra that it was not bound by the 21-day rule on advertising for the Director-General vacancy, does not have weight. KeRRA’s internal Human Resource Manual, could never dislodge the minimum standards established by the Public Service Manual," ruled the judge.
Engineer Kandie was appointed as the substantive DG of the State Corporation on April 13, 2022, for five years.
Before the appointment, he held the position in an acting capacity since July 2020 (a period of one year and eight and a half months).
This was in contravention of Section 34 of the Public Service Commission Act, which allows public officers to hold office in acting capacity for a minimum of 30 days and a maximum of six months.
Kerra's board advertised the position of director-general on March 22, 2022, and the advertisement was placed in a national newspaper.
The advertisement required applications to be submitted by April 4, 2022. Nine candidates applied and three were shortlisted.
They were interviewed and their names were submitted to the Cabinet Secretary, who selected Eng Kandie.
The Human Resource Policies and Procedures Manual for the Public Service states that ministries and state departments should advertise all vacancies in a manner that will reach the widest pool of potential applicants and allow at least 21 days for the advertisement to close.
Ruling on a case brought by Mr Samson Nzivo Muthiani challenging the appointment and recruitment process of Eng. Kandie, the court said Kerra had failed to provide valid reasons for shortening the advertisement period.
"Kerra has not established any ground that would justify the shortening of the advertisement period. There was no urgency shown. The court agrees with Mr Muthiani that the advertisement was made in contravention of the 21-day advertisement rule," said Justice Rika.
The court rejected Kerra's argument that there was urgency to appoint the substantive director-general because Eng Kandie was in an acting capacity.
According to the court, this was because there had been an amendment to the Kenya Roads Act, which allowed Mr Kandie to enter the pool of qualified candidates for the position.
Post-registration experience
"Kerra or Eng Kandie did not of course occasion the amendment. This was a legislative process. The Kenya Roads [Amendment] Act No.3 of 2022 commenced on March 21, 2022. Kerra commenced the process of recruiting the substantive Director-General the following day -March 22, 2022," said the judge.
The petitioner told the court that at the time Mr Kandie was appointed in an acting capacity on July 6, 2020, the law required the holder of the position to have 15 years of post-registration experience in the field of road and highway engineering. Eng Kandie had only 10 years of post-registration experience.
This requirement was amended by the Kenya Roads [Amendment] Act, 2022
Act, 2022, requiring 10 years' post-registration experience.
He said the post had previously been advertised for over a year and a half but was re-advertised immediately after the amendment.
Although Kerra said the amendment clarified the qualifications and tenure of the director-general, the judge said it was not explained to the court why it was not possible to recruit a substantive director-general before the amendment of March 21, 2022.
"The court agrees with Mr Muthiani that the process was characterised by bad faith. KeRRA appeared to have decided that the acting Director-General, must become its substantive Director-General. The other two candidates who were shortlisted were included in the process, as were all the other eight applicants, is a sham process, aimed at the coronation of the acting Director-General. The other candidates were in the mind of Kerra ushers, in a procession, where the outcome was predetermined," said the judge.
Since the interviews were conducted on April 12, 2022, the court asked when the Board met, evaluated the performance of each candidate and settled on Eng Kandie.
"Where are the minutes of the board, showing evaluation of the candidates and resolutions made with regard to each application?" asked Justice Rika.
He said that public bodies should not advertise vacancies and go into the interview process with predetermined outcomes.
"Candidates ought not to be interviewed in a particular afternoon, and as the last candidate leaves the interview hall, an announcement in the media is being read out, on who the successful candidate is. Where does this leave such other candidates? The recruitment process must be objective, fair to all the candidates and in particular to the public, and must be rooted in the Constitution, applicable Statutes and Human Resource Instruments," said Justice Rika.
"Where the interviewing public body comes to the interview room with their favourite candidate in mind, the principles of fair competition and merit as the basis of appointments and promotions in the Public Service, contained in Article232[1][f] of the Constitution, are abrogated," he continued.
