•The Kenya Roads [Amendment] Act No. 3 of 2022 was enacted on 21st March 2022, clarifying the qualifications and terms of the Director-General.
•Kandie was appointed in an acting capacity on July 6, 2020.
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Employment and Labour Relations court has quashed a Gazette Notice that appointed Philemon Kiprop Kandie as the Director-General of Kenya Rural Roads Authority (KeRRA).
Justice Rika James in his judgment delivered on May 31, 2023, ruled that the applicant, Samson Nzivo Muthiani who sued for public interest, had overwhelmingly shown that KeRRA did not discharge its official duty properly in appointing Kandie as the Director-General.
"An order of Certiorari is hereby issued quashing Gazette Notice No. 4309 of 13th April 2022, appointing Philemon Kiprop Kandie, as the Director-General of the Respondent," the judge ruled.
Muthiani an Engineer, moved to court saying that KeRRA advertised a vacancy in the position of Director-General on March 22, 2022. At the time, the position was held by Kandie, in an acting capacity.
He said Kandie applied and was appointed as the Substantive Director-General with effect from April 13, 2022, vide Gazette Notice Number 4309 of April 13, 2022.
Muthiani's position was that advertisement was rife with procedural impropriety and in 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 said in court documents.
He argued that KeRRA did not observe the 21-day rule, contained in Section B of the Human Resource Policies and Procedures Manual for the Public Service, May 2016.
The rule 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 the 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 told the court that the advertisement was done hurriedly and was not placed on the Public Service Commission Website. This limited the number of Applicants.
He also states that the advertisement did not take into account, the two-third gender rule and wanted the respondent to have a female Director-General, pursuant to Article 27 [8] of the Constitution.
He submitted that the recruitment and appointment processes were not properly carried out. As such, he claims the outcome was predetermined.
KeRRA's Director of Corporate Services, C.P.A. Dan Manyasi Chamwama explained that the Respondent is an autonomous corporate body, with perpetual succession and a common seal, established under the Kenya Roads Act No. 2 of 2007.
He said It did not have a substantive Director-General since March 2018.
Attempts were made by the Board, to fill the position substantively, on or about April/ May 2020. The advertisement was made, but the recruitment process was not finalized.
Kandie was appointed in an acting capacity on July 6, 2020.
The Kenya Roads [Amendment] Act No. 3 of 2022 was enacted on 21st March 2022, clarifying the qualifications and terms of the Director-General.
KeRRA's Board initiated the process of filling up the position urgently after the law was amended, considering that Kandie had been acting in excess of 6 months, allowed by the law.
On March 22, 2022, KeRRA advertised for the vacancy, in a daily newspaper with national reach.
Applications were to be submitted by April 4, 2022, when nine candidates applied and three were shortlisted.
They were invited for interviews on 12th April 2022. They were interviewed and their names were forwarded to the Cabinet Secretary.
He said Kandie was appointed by the Cabinet Secretary, in consultation with the Board, for a period of 5 years, running from 13th April 2022.
Chamwama stated that Kandie had the requisite qualifications and the process was fair and above board.