Roads and Transport Cabinet Secretary (CS) Kipchumba Murkomen has moved to the Court of Appeal in a bid to save the Kenya Rural Roads Authority (KeRRA) Director-General Philemon Kandie from leaving office after the High Court quashed his appointment.
Though the CS was not a party to the legal dispute at the High Court, he has filed a notice of appeal stating that he is dissatisfied with the decision of the Employment and Labour Relations Court to find that Engineer Kandie's recruitment was tainted by illegality and procedural impropriety.
The original court dispute was between a public interest litigant Mr Samson Nzivo Muthiani and KeRRA.
In the notice of appeal filed at the Labour Relations Court Nairobi through Prof Tom Ojienda & Associates Advocates, CS Murkomen says he intends to challenge the entire judgment delivered on May 31, 2023 by Justice James Rika.
Quashing the appointment made by former Transport CS James Macharia in April 2022, the judge said the selection of Engineer Kandie was predetermined by the KeRRA Board and that the recruitment process was characterised by bad faith.
This is because the law governing the recruitment, the Roads Act, was amended to enable Engineer Kandie enter the bracket of qualified candidates to hold the position.In addition, the court found that there were no minutes of the KeRRA Board showing evaluation of the candidates who had applied for the position and resolutions made on each application.
"The court agrees with Mr Muthiani that the process was characterized 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.
The court also found that KeRRA failed to comply with a requirement by the Public Service Manual, which says that advertisements for public service vacancies should be for a minimum of 21 days before closing the advert.
The court found that advertisement for the position of KeRRA Director-General was hurried and that 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.
Those who wanted the job were granted 13 days to apply, contrary to the 21-days period stipulated in the Public Service Manual.The court said KeRRA did not offer 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.
Engineer Kandie was appointed as the substantive DG of the State Corporation on April 13, 2022 for a period of five years.
Before the appointment he was holding the position in an acting capacity since July 2020 (a period of one year, eight-and-half months).
Justice Rika said Engineer Kandie's holding of the position in acting capacity was also illegal. It was against Section 34 of the Public Service Commission Act, which allows public officers to serve in acting capacity for a minimum of 30 days and a maximum of six months.
KeRRA's Board advertised to fill the Director-General position substantively on March 22, 2022 and the advert was placed in a national newspaper but not in the Public Service Commission Website.
The advert required applications to be made by April 4, 2022 and nine candidates applied and three were shortlisted.
They were interviewed and their names were submitted to former Cabinet Secretary for Roads James Macharia, who selected Engineer Kandie.
Another error by KeRRA was failure to place the advertisement in the Public Service Commission Website, in accordance with Section 37[1] of the Public Service Commission Act.
"It was not placed in the radios and other modes of communication. KeRRA did not advertise the vacancy in accordance with the Public Service Commission Act," said the judge.
The court also found that the recruitment was marked by bad faith.According to court, this is because Parliament amended the Kenya Roads Act, which enabled Engineer Kandie to enter the bracket of qualified candidates to hold the position."
KeRRA or Engineer 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 informed court that at the time Engineer Kandie was appointed in an acting capacity in July 2020, the law required the holder of the position to have 15 years’ post-registration experience in the field of road and highway engineering.
Engineer Kandie had only 10 years’ post-registration experience.This requirement was altered by The Kenya Roads [Amendment] Act, 2022, calling for 10 years’ post-registration experience. The petitioner said that the change conferred upon Engineer Kandie the requisite qualifications.
He said the position had been advertised previously more than one-and-a half years but it was re-advertised immediately after the Amendment to the law.
Though KeRRA stated that the Amendment clarified the qualifications and term of service 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.
Justice Rika said that public bodies must 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.
