The Employment and Labour Relations Court has quashed the appointment of Nehemiah Ng'etich as the acting chief executive officer of the National Biosafety Authority.
The court found that the appointment of Mr Ng'etich was unlawful as he lacks the requisite qualifications. Further, the court said the appointment of the acting CEO went beyond six months, thus violating the law.
"The appointment has therefore been found to have been unconstitutional, unlawful and contrary to government policies as found and as urged, pleaded and submitted by the petitioner," said the court.
The court further directed the Board of the authority to embark on the recruitment of a new boss within 15 days from the date of the judgment.
Mr Ng'etich was appointed on July 5, 2024, following the suspension of former CEO Roy Mugira. Mr Ng'etich's appointment was renewed in January this year and again in July.
“That an order is hereby issued directing the 1st respondent (the board) to commence forthwith within not more than 15 days from today a fresh, open, transparent, merit-based appointment process for the office of chief executive officer in accordance with the law and in strict compliance with the relevant applicable constitutional and statutory provisions,” the court said.
The court said the prevailing law and government policies and circulars continue to apply to the acting and substantive appointments of CEOs of state corporations, even in the face of the ongoing implementations aimed at reforming state corporations, as communicated in the Cabinet News of January this year.
The board had defended itself, saying the government had frozen new appointments in anticipation of the merger of the agency with the Kenya Health Inspectorate Services (Kephis), among other reforms.
“The court has already ruled that Mr Ng'etich's acting appointment was unlawful, as submitted by the petitioners. It exceeded the statutory six-month limit and undermined the process of appointing a substantive CEO, as contemplated by law and the cited policy circulars,” said the court.
The case was filed by William Otieno Onyango, who faulted the board for not recruiting the CEO competitively. He also stated that Mr Ng'etich lacked the necessary qualifications as he had not previously served in senior position for 15 years.
The petitioner argued that Mr Ng'etich had served for an aggregate of 12.5 years and served as head of the directorate for a period of one year.
“Throughout the acting appointment as CEO, Mr Ng'etich did not have the 15 years of relevant experience, and of which, five years had to be in "senior management" as prescribed in the PSC's career guidelines," said the court. The court said the appointment was in breach of the Public Service Commission Act, 2017.
The section states that a person shall not be appointed to hold a public office in an acting capacity unless the person satisfies all the prescribed qualifications for holding the public office.
“The Court holds that the government is a constitutional and statutory employer and not a mere player in the labour market," said the court, adding that powers and functions must be exercised and discharged with utmost fairness, dignity, integrity, rationality, and reasonableness.
