A public-interest litigant has moved to court seeking the removal of Kenya Railways Corporation (KRC) Managing Director Philip Mainga, arguing that he has overstayed his lawful tenure in office.
In a petition filed before the Employment and Labour Relations Court, Masha Wario claims that Mr Mainga has exhausted the two three-year terms allowed for the position and has served at the helm of the state corporation for about 10 years.
Mr Mainga took over from former MD Atanas Maina in 2018 in acting capacity before he was confirmed to the position two years later. Before that, he was the business research and general manager at KRC.
The court directed the parties, including Mr Mainga, the KRC board and the Public Service Commission (PSC), to file their responses ahead of the hearing scheduled for June 15.
Mr Wario argues that the petition raises substantial constitutional questions regarding the continued occupation of a public office contrary to the principles of leadership, integrity and accountability enshrined in the Constitution.
According to the petitioner, the office of the managing director and chief executive officer of KRC is a public office that carries significant public trust, involves the administration of public resources and entails the exercise of public authority.
He contends that despite completing the permissible two terms of three years each, Mr Mainga continues to serve in office and exercise the powers of the position, including signing contracts, entering into agreements and undertaking public functions.
Mr Wario warns that unless the court intervenes, the continued exercise of authority by Mr Mainga could result in further constitutional violations.
He wants the court to direct the KRC Board to appoint an acting managing director pending the determination of the case.
The petitioner is also seeking orders compelling KRC to disclose all contracts, agreements and other instruments signed by Mr Mainga during the disputed period, including those relating to commuter rail projects and international agreements.
He argues that the managing director's office is a senior public position involving the management of public assets and resources, and that holders of the office are constitutionally required to demonstrate integrity, accountability, transparency and professionalism at all times.
Mr Wario maintains that Mr Mainga has exhausted his tenure but continues to discharge the powers and responsibilities attached to the office.
He further notes that several ongoing projects and arrangements involving substantial public resources and public interest were undertaken during the contested period.
The petitioner says the KRC Board has a constitutional and statutory duty to ensure that individuals occupying senior offices meet the requirements of leadership, integrity and accountability.
He argues that occupying the office beyond the lawful tenure is unconstitutional, unlawful, null and void.
Mr Wario states that appointments to such senior public offices are typically made on fixed-term contracts that may be renewed subject to performance and compliance with lawful renewal procedures.
He further argues that the applicable tenure for the KRC managing director is two renewable terms of three years each, unless a lawful extension, renewal or reappointment is undertaken in accordance with the relevant public service and state corporation governance frameworks.
The petitioner is also seeking disclosure of key governance documents, including appointment instruments, employment contracts, renewal or extension approvals, board resolutions, gazette notices, performance contracts and all contractual instruments executed during the disputed period.
One of the key projects, the Sh12 billion contract for the construction of the Riruta-Ngong metre gauge railway was, however, suspended by the court pending the determination of a petition filed by Busia senator Okiya Omtatah and others.
