Persons handpicked by the President and Cabinet Secretaries to work in State corporations do not hold a legitimate expectation to serve a full term of the contract, the Court of Appeal has ruled.
According to the court, since the appointments are made on political considerations other than merit through competitive recruitment, the beneficiaries, in the event of a revocation, should not expect much apart from a notice and reasons for their removal.
Most beneficiaries of the executive political appointments to State bodies include election losers, campaigners and persons well known to the President or the Cabinet Secretary.
“While the CS and the President do have power to appoint and revoke such appointments, they have to do so in accordance with the constitutional principles set out in Article 10, 47, 236 and Chapter 6 of the Constitution,” the court ruled.
Justices Daniel Musinga, Asike Makhandia and Mumbi Ngugi held that the premature revocation of such appointments due to a change in political regime does not constitute a breach of legitimate expectation.
The findings emerged from a case filed by five members of the Local Authorities Provident Fund (LAP Fund) Board of directors, whose three-year contract was revoked by President William Ruto’s administration in February 2023.
The appointees, led by former Gatundu North MP Patrick Muiruri, Molu Jillo Mamo, Haro Guyo Akola, Kirigha Mwanyasi and Elyas Sheikh Abdinoor, had been appointed by former President Uhuru Kenyatta’s administration in December 2021.
In the changes gazette by former Treasury Cabinet Secretary Prof Njuguna Ndung’u, they were replaced by Patrick Muchoki, Ruth Charity Wanyonyi, Barbara Kawira Japan, Robley Otieno Ngoje, Samwel Kariuki Maina, Christine Kibet and Beatrice Kones.
Aggrieved by the revocations, the appointees sued, and High Court judge Lawrence Mugambi quashed the decision of the Cabinet Secretary to revoke the appointments.
Justice Mugambi, in a judgment dated January 9, 2024, had also declared that the appointment of new board members to replace the previous team was null and void from the beginning.
The judge ruled that the board members were expected to serve their full three-year term, and the decision of the CS to abruptly cut it short without giving them any notice, hearing or assigning reasons for the decision was in breach of their legitimate expectation to serve a full term.
However, while ruling on an appeal filed by the Cabinet Secretary, the appellate judges said the appointees’ expectation to serve a full term as indicated in the appointment letters was not valid.
“It is our finding that the trial court erred in finding that the CS breached the respondents’ legitimate expectation that they would remain on the board for the term of three years set out in their letters of appointment,” said the judges.
They found that the only legitimate expectation that the five respondents could have had, which is grounded in law and the Constitution, is that their removal from the Board, would be done in accordance with the provisions of the Constitution, as well as the Fair Administrative Actions Act, including their being given notice and reasons for the removal”.
“Once this is done, they cannot expect more: their appointment was on the basis of opaque political or other considerations; they acquire some rights as public officers under Article 47 and 236 upon assuming their roles on the Board; but they cannot, given the manner of their appointments, expect more,” said the judges.
However, the judges upheld the High Court’s finding that the revocation was arbitrary by revoking the appointments of the board members without giving any reasons.
“We therefore find that the High Court properly reached the conclusion that the CS, in the manner of revoking the appointment of the five respondents without notice and without giving reasons for the revocation, violated their rights under Article 47 and 236 of the Constitution,” they ruled.
