By The Weekly Vision Team
The Public Service Commission has been sued over a decision to recall a letter of appointment issued to Mr Mburu Peter Ng’ang’a as the substantive Chief Land Registrar after being interviewed on September 14, 2023. A communiqué from PSC dated September 28, 2023, by the Secretary/Chief Executive Officer to the Principal Secretary in the Ministry of Public Service conveyed a decision by the Commission that Mr Ng’ang’a be appointed to fill the position of Chief Land Registrar after the due process of selection was followed.
However, Mr Aggrey Wafula moved to court over the matter. He argued that the principal secretary had employed tactics and antics to circumvent the process and that he had threatened to appoint another person outside of the decision, communication, or recommendation of the PSC.
The PSC filed the replying affidavit of Dr. Simon K. Rotich, CBS, the Secretary/Chief Executive Officer of the Public Service Commission, sworn on December 4, 2023, and through Jacqueline Manani, Advocate. He informed the court that the Commission advertised the position of Chief Land Registrar, received applications, and shortlisted nine applicants: Mucheke Zubeda Yusuf, Nyandoro David Nyambaso, Mburu Peter Ng’ang’a, Maina Chelimo Sarah, Ng’etich Charles Kipkurui, Obare Fedson Nyagaka, Leitich Benard Kipkemoi, Ketyenya Clarah Chemuta, and Nyangau Thomas Morarae.
The Commission then wrote to the Ethics and Anti-Corruption Commission (EACC) and the National Intelligence Service (NIS) on August 31, 2023, seeking information on the shortlisted candidate. The Commission received a response on September 20, 2023, from EACC dated September 11, 2023. The response mentioned that Mburu Peter Ng’ang’a had been charged in Milimani Anti-Corruption Court Case No. 33 of 2018 with abuse of office, contrary to Section 46 as read with Section 48 of ACECA No. 3 of 2003. The charges were, however, withdrawn by the DPP under Section 87(a) of the CPC.
The Commission conducted interviews on September 14 and 15, 2023, and Mburu Peter Nga’ng’a emerged as the top candidate. On September 28, 2023, the Commission held an Ordinary Board Meeting in which one of the agenda items was to consider the Selection Board Report for the position of Chief Land Registrar.
Since there was no adverse report that had been received by the Commission at the time of the discussion, the Commission discussed and resolved to appoint Mburu Peter Ng’ang’a as the Chief Land Registrar. The Deputy Commission Secretary (Corporate Services) was then immediately instructed to send a letter to the Principal Secretary of, the State Department for Lands, informing him of the Commission’s decision to appoint Mburu Peter Ng’ang’a as the Chief Land Registrar.
The Deputy Commission Secretary (Corporate Services) then sent a letter dated September 28, 2023, to the Principal Secretary, State Department for Lands, as the Board Meeting was ongoing. In the course of the meeting (in the afternoon), while the Commission was proceeding with other agenda items, the Commission received verbal adverse information about Mburu Peter Ng’ang’a from the NIS.
This prompted the Commission to revisit the earlier discussion, and upon discussions, the Commission rescinded the earlier decision appointing Mburu Peter Ng’ang’a as the Chief Land Registrar and instead appointed Nyandoro David Nyambaso. By the time the Commission was rescinding the earlier decision, the letter communicating the decision to appoint Mburu Peter Ng’ang’a had already been dispatched to the Principal Secretary of, the State Department for Lands. The Commission therefore resolved to recall the earlier letter.
A letter dated September 28, 2023, communicating the decision to appoint Nyandoro David Nyambaso as the Chief Land Registrar was then immediately dispatched to the Principal Secretary, State Department for Lands, on the same date, and on September 29, 2023, the Commission received a letter dated the same date from NIS confirming the information earlier received verbally by the Commission about the adverse report on Mburu Peter Ng’ang’a. The Commission is unable to attach the letter from NIS as it also contains confidential information about another officer who is not the subject matter of this petition.
It was argued that the Commission could not ignore the information provided by NIS, especially considering the sensitivity of the position of Chief Lands Registrar. The Commission, however, demonstrated that a credible recruitment process was undertaken through which Mburu Peter Ng’ang’a emerged as the top candidate; however, he did not meet the qualifications as he failed the requirements of Chapter 6 of the Constitution.
Nyandoro David Nyambaso was issued an appointment letter immediately after the Commission communicated to the Principal Secretary the decision to appoint him to the position of Chief Land Registrar.
A ruling by Judge Byram Ongaya dated December 7, 2023, reads, “In conclusion, the application for the petitioner dated November 24, 2023, is hereby determined with orders that pending the hearing and determination of the petition, it should be possible for the 1st respondent (PSC) to avail the letter by the National Intelligence Service said to be dated September 29, 2021, which cements the information that triggered the recall and within such safeguards as the Court may direct for protection of all interests involved and towards establishing the merits of the recall and as the Court will be moved by the parties to direct as may fall necessary.”.
