- CS Ndung'u defended the removal saying some of the LAPFUND members had resigned to pursue political interests in the 2022 general elections and had left vacancies in the board.
- He also argued that he was within his statutory mandate to make the removal.
Image: FILE
The court has dealt a blow to the government after quashing the appointment of new members of the Local Authorities Provident Fund board (LAPFUND).
In a case challenging the appointment of seven new members of the board, the High Court declared that their naming in place of the former members was null and void.
"A declaration doe and is hereby issued that the 1st respondent's (Treasury CS Njuguna Ndung'u) Kenya Gazette Notice No. 2871 dated March 6, 2023, Volume CXXV No.57 appointing 1st to 7th interested parties as new board members of the Local Authorities Provident Fund Board in place of the petitioners is null and void ab initio (from the beginning)," the judgement reads.
The petitioners through Lawyer Eric Kinaro, had moved the court arguing that the grounds for revocation of appointments according to the local authorities' board charter rules are conviction and sentencing exceeding six months and a Sh2,000 fine.
Other reasons are incapacitation and gross misconduct.
In their case, however, no reason had been given for their removal from the LAPFUND.
The petitioners were Molu Jillo Mamo, Haro Guyo Okola, Kirigha Mwanyasi, Elyas Sheikh Abdinoor and Patrick Muiruri.
The new appointees who were listed as interested parties are Patrick Muchoki, Ruth Charity Wanyonyi, Barbara Kawira Japan, Robley Otieno Ngoje, Samwel Kariuki Maina, Christine Kibet and Beatrice Kones.
In seeking to have the case thrown out, the seven argued that since it was an employment matter, they should have filed the case at the employment and labour court and not at the Constitutional and Human Rights Division.
They averred that revoking their appointment would negatively interfere with the management and running of the LAPFUND.
CS Ndung'u defended the removal saying some of the LAPFUND members had resigned to pursue political interests in the 2022 general elections and had left vacancies in the board.
He also argued that he was within his statutory mandate to make the removal.
Delivering the judgement, Justice Lawrence Mugambi said the removal of the former members, which he termed as "premature", was a violation of Article 47 of the Constitution and the provisions of the Fair Administrative Action Act (No 4 of 2015).
He further noted that Ndung'u had contravened Article 236(b) which protects public officers from dismissal or otherwise subjected to disciplinary action without fie process.
He said the petitioners had been exposed to humiliation and indignity as they, and the public at large, were left to speculate as to the reasons for the premature removal.
The members were replaced before the lapse of the expected three-year term, after appointment in 2021.
Justice Mugambi further faulted the CS for the actions he said lacked accountability and transparency, going against the principles of good governance.
He also clarified that the case was not employment-related as they are board members, not employees according to Section 2 of the Employment Act.
The judge then proceeded to invalidate the gazette notice through which the petitioners were removed and that which appointed the new members.
He also ordered both the CS and the Attorney General by themselves or anyone working under them from interfering with or replacing the petitioner's LAPFUND members for the remainder of their term.
This is except in a manner authorised by law.