The appointment of Anthony Mwaura as the Kenya Revenue Authority (KRA) chairperson when he was facing corruption and economic crimes charges was illegal, the High Court has ruled.
Justice Francis Gikonyo on Monday ruled that President William Ruto’s decision to appoint Mr Mwaura on November 18, 2022 ‘suffered procedural infirmity and illegality’.
The judge further said the acquittal of the chairperson long after his appointment does not cure the fact that the move was illegal from the start.
In a gazette notice dated November 18, 2022, President Ruto appointed Mr Mwaura as the chairperson of the KRA board, while the rest of the board members were to be appointed by the then Treasury Cabinet Secretary Njuguna Ndungu.
“The appointment herein suffers procedural infirmity and illegality as relevant material and vital aspects having annexures to the constitutional and legislative purpose of integrity were not taken into account in the actual process,” Justice Gikonyo said.
Mr Mwaura replaced Mr Francis Muthaura who was appointed by retired President Uhuru Kenyatta in October 2019.
His appointment was challenged by Nakuru-based surgeon Dr Magare Gikenyi, who argued that Mr Mwaura was facing corruption and economic crimes charges as well as forfeiture of proceeds of crime.
Dr Gikenyi said the appointment was irregular and therefore null and void.
He further argued that the appointment did not violate any single provision of the law and the mere fact that a person was facing a charge does render him unfit to enjoy his or rights and fundamental freedoms under the Constitution, unless limited by the law.
Soon after his appointment, Mr Mwaura appeared to play both the role of the chief executive officer and chairman — akin to an executive chairman in private companies.
His appointment to the KRA board leadership was attributed to his loyalty to the president who rewarded many individuals who stuck with him during the campaign with plum jobs in government.
Mr Mwaura had previously served as the chairman of the elections board of Mr Ruto’s United Democratic Alliance (UDA) party.
Mr Mwaura submitted that there was no evidence that president was not aware that he was facing the charges when he appointed him as the KRA chairperson.
Mr Mwaura argued that the corruption case was politically motivated but the judge dismissed the submission stating that it was neither here nor there.
Justice Gikonyo added that by agreeing with Mr Mwaura’s arguments, courts would be setting a dangerous precedence where the appointing authorities make illegal appointment and later find ways of sanitising the same.
“Such a move will also make the court party of the sanitisation of such illegalities. It is worth repeating that attornment for an illegality is the removal of the illegality by judicial remedy,” the judge said.
