Court Declines Request To Suspend Dismissal of KeRRA Director General Philemon Kiprop Kandie
The Court of Appeal has rejected the request to halt the dismissal of KeRRA Director General Philemon Kiprop Kandie, while an appeal filed by the agency is pending.
Kandie was relieved of his duties in late May following a ruling by Employment and Labour Court Judge James Rika, who found irregularities and procedural impropriety in the process.
KeRRA board chairman Oyuko Mbeche had sought to suspend the ousting until the appeal was resolved. His argument centered around the concern that the position could be filled without giving Kandie an opportunity to present his side of the story.
However, a panel of three judges declared that Kandie could still apply for the position if it is advertised. They further stated that if the agency believes its operations will be hindered without a director, they are free to restart the recruitment process.
Justices Hellen Omondi, John Mativo, and Ngenye Macharia stated that no significant loss, injury, or prejudice would likely occur to any party if Kandie’s removal is not temporarily suspended.
“Further and in the same vein, we are not convinced of this argument by both counsel that the applicant would be prejudiced by the process as he is already recruited on a five-year contract. We say so because nothing prevents him from reapplying for the position or that the respondent cannot appoint him if he is the successful candidate,” the judges said.
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The judges acknowledged that Ayuko’s appeal had merit, but they were not convinced that denying a stay order would render the appeal ineffective. Consequently, the court instructed that the case be given priority and scheduled for an expedited hearing.
The court also agreed with Samson nzivo Muthiani’s argument that KeRRA was obligated to adhere to the 21-day advertising rule. The agency failed to advertise the position on the Public Service Commission Website, radio, or other communication platforms.
Muthiani contended that the confirmation process for Kandie was tainted by ill intentions, as public bodies should not enter the interview process with predetermined outcomes.
Expressing dissatisfaction, Board Chair Ayuko asserted that none of the KeRRA board members were involved in the proceedings, preventing them from presenting the recruitment process they followed.
Ayuko argued that Kandie’s termination violated the due process outlined in the Employment Act, denying him the opportunity to be heard. He informed the court that the intended appeal had strong grounds, as the judgement violated Kandie’s constitutional rights to fair hearing, fair administrative action, and the right to be heard.
Ayuko stressed that Kandie was serving a fixed five-year contract, which would expire if the decision was not suspended. He also highlighted the critical role of the Director General in managing KeRRA on a daily basis, emphasizing that a vacancy in that position would severely impede the agency’s ability to fulfill the government’s mandate of overseeing 20,000 kilometers of rural roads in the country.