- The ruling by High Court Judge James Rika reads “An order of Certiorari is hereby issued, removing into this Court and quashing Gazette Notice No. 4309 of 13th April 2022, appointing Philemon Kiprop Kandie, as the Director-General of the Respondent”
- Eng. Samson Nzivo Muthiani had gone to court through Ex-Parte Applicant through a Notice of Motion Application dated 20th June 2022 seeking an order of certiorari issued, to remove Philemon Kiprop Kandie, as the Director-General
By The Weekly Vision
The Kenya Rural Roads Authority Director General Philemon Kiprop Kandie’s appointment has been revoked by High Court Judge James Rika. In a landmark ruling delivered on 31st May 2023, the judge dismissed the appointment Mr Kandie’s saying the board did not follow the laid down procedure. The ruling reads “An order of Certiorari is hereby issued, removing into this Court and quashing Gazette Notice No. 4309 of 13th April 2022, appointing Philemon Kiprop Kandie, as the Director-General of the Respondent”.
Eng. Samson Nzivo Muthiani had gone to court through Ex-Parte Applicant through a Notice of Motion Application dated 20th June 2022 seeking an order of certiorari issued, to remove into this Court and quash Gazette Notice Number 4309 [13th April 2022], appointing Philemon Kiprop Kandie, as the Director-General. Kenya Rural Roads Authority had advertised a vacancy in the position of Director-General of KeRRA, on 22nd March 2022. At the time, the position was held by Mr Kandie in an acting capacity. Mr Kandie applied and was appointed as the substantive Director-General with effect from the 13th of April 2022, vide Gazette Notice Number 4309 of 13th April 2022.
According to Eng. Muthiani, the advertisement was rife with procedural impropriety and bad faith. It fell short of Kenyans’ legitimate expectations that recruitment would be free and fair, the process was contrary to fair administrative process. He further claimed that the KeRRA board did not observe the 21-day rule, which states that Ministries and State Departments should advertise all vacant posts in a manner that reaches the widest pool of potential applicants, and allow for at least 21 days, before closure of the advertisement. The advertisement is required to disclose details of the post; the title of the post; the number of vacancies; the job description; person specification; and the proposed remuneration. He claimed that the advertisement was done hurriedly, and applicants were granted a mere 13 days to apply.
Further, the advertisement was not placed on the Public Service Commission website. This limited the number of applicants and the advertisement did not take into account, the 2/3rd gender rule. It was also noted that the KeRRA board did not accord candidates a 1-week notice for an interview. Applications were to be received by the close of business on 4th April 2022. Shortlisting could only take place from 5th April 2022. The interview was on 12th April 2022- giving a notice of 6 days only.
He further submitted that the recruitment and appointment processes were not properly carried out. The outcome was predetermined. Appointment, gazettement and signing of the contract were done a day after the interviews were concluded. This would only be possible if the outcome was predetermined. It has also been noticed that Mr Kandie had been acting as the Director-General for 1 year and 8 months before he was appointed to the substantive role. At the time he was appointed in an acting capacity, on 6th 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.
However, Kandie had only 10 years of post-registration experience. He did not qualify to act. This requirement has since been altered by The Kenya Roads [Amendment] Act, 2022, calling for 10 years’ post-registration experience. The Applicant submits that the change conferred upon Kandie the requisite qualifications.
Investigations revealed that only 9 candidates applied due to the short timelines. Thereafter, only 3 candidates were shortlisted, to attend interviews on 12th April 2022. Mr Kandie was appointed on 14th April 2022, the selection process was a mere sham. The KeRRA Director of Corporate Services, C.P.A. Dan Manyasi Chamwama, confirmed that KeRRA did not have a substantive Director-General since March 2018. The KeRRA Board initiated the process of filling up the position urgently after the law was amended, considering that Mr Kandie had been acting for more than 6 months, allowed by the law.
The judge in his ruling noted that the issues in dispute are: whether Philemon Kiprop Kandie was appointed to the position of the Director-General of the Respondent, under the law; and if not, whether a writ of certiorari quashing Gazette Notice No. 4309 of 13th April 2022, should issue. The judge noted that 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. One million dollar question the judge posed to the KeRRA board which they failed to answer was “Did not the Director-General and KeRRA board, know that it was necessary to fill the position urgently, when the former went on acting for approximately 1 year, 8 ½ months?”
According to the judge, there was no urgency communicated to the public, at the time the advertisement was placed in the newspaper. KeRRA board has not established any ground that would justify the shortening of the advertisement period. There was no urgency shown. The Court agrees with the Applicant that the advertisement was made in contravention of the 21-day advertisement rule.
The Judge further noted that Kandie was acting as the Director- General illegally. There was an amendment to the Kenya Roads Act, which enabled Kandie to enter the bracket of qualified candidates to hold the position. KeRRA board also failed to explain to the Court why it was not possible to recruit a Substantive Director-General, before the Amendment of 21st March 2022. Had there been no substantive Director-General, before Kandie started acting?
The judge wondered and noted that reflective of the inadequacy of the advertisement mode, only 9 candidates, in a country dotted all over with a multitude of Road Engineers, applied. Out of these, only 3 were shortlisted and interviewed on 12th April 2022. It was noted that a contract of employment was executed between Mr Kandie and the Board, employing him as the Substantive Director-General for 5 years. He had already served illegally for more than 6 months, precisely for 1 year 8 ½ months, as the Director-General. Was the period Kandie had served illegally and the remuneration earned, taken into account by the Board, in offering him a contract as the Substantive Director-General for another 5 years?
The judge noted that the process was characterized by bad faith. The KeRRA board appeared to have decided that the acting Director-General, must become its substantive Director-General. The other 2 candidates who were shortlisted were included in the process, as were all the other 8 Applicants, is a sham process, aimed at the coronation of the acting Director-General. The other candidates were in the mind of the Respondent ushers, in a procession, where the outcome was predetermined.
It was also noted that granted that interviews were conducted on 12th April 2022, when did the Board meet, evaluate the performance of the respective candidates, and settle on Kandie? Where are the minutes of the Board, showing the evaluation of the candidates and resolutions made concerning each application?
The Kerra board in a quick rejoinder argued unconvincingly, that it expedited the process, which is evidence of its efficiency, rather than improper conduct of the process. The Court does not think this is correct. There is no efficiency, where a public body acts in total disregard of the law which governs the human resource function in the Public Service. An act of bad faith cannot be equated to efficiency. The ruling reads in part “The Applicant in this Judicial Review Application, has overwhelmingly shown, that the Respondent did not discharge is official duty properly, in appointing Kandie as the Director-General”.
