• The judges said Kandie did not convince them that he would be prejudiced by the process as he is already recruited on a five-year contract.
• The court also considered the issue of public interest as urged by the parties.
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Philemon Kiprop Kandie has lost a bid to have an Appeal court grant stay orders to have him serve as the appointed Director-General of Kenya Rural Roads Authority (KeRRA).
Kandie moved to the court of appeal seeking orders that he be reinstated in the office following a High Court decision that quashed a Gazette Notice that appointed him.
On June 30, Judges H. Omondi, John Mativo and Ngenye Macharia ruled that to allow an individual to earn a salary when the process of his appointment is put into question compromises the sanctity of a transparent recruitment process and would militate against the public interest.
The judges said Kandie did not convince them that he would be prejudiced by the process as he is already recruited on a five-year contract.
The court also considered the issue of public interest as urged by the parties.
"For the foregoing reasons, we decline to grant an order of stay as prayed. We hereby dismiss the Notice of Motion dated 5th June 2023 with each party bearing its own costs. We direct the intended appeal be listed for hearing on a priority basis and the matter is placed before the President of the Court immediately for appropriate directions," the judges ruled.
Last month, High court judge James Rika quashed a Gazette Notice that appointed Kandie as KeRRA boss.
In his judgement delivered on May 31, 2023, ruled that the applicant, Samson Nzivo Muthiani who sued for the 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 Commission Website.
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 stated 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.
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.
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.