The Court of Appeal on Monday July 10 declined to suspend the removal of the Director General of the Kenya Rural Roads Authority (KeRRA) Philemon Kiprop Kandie, pending the determination of an appeal filed by the agency.
However, despite the court order, Kandie continued performing his duties as the agency’s DG and even chaired a meeting on Tuesday, July 11.
Kandie was removed from his position in late May after Employment and Labour Court judge James Rika ruled that the process was marred by illegalities and procedural impropriety.
Justices Hellen Omondi, John Mativo and Ngenye Macharia however said nothing stops Kandie from applying for the position if it is advertised.
They further ruled that if the agency feels that its operations will be impended due to lack of a holder of the office, nothing prevents it from starting afresh the recruitment process.
KeRRA board chairman Oyuko Mbeche had sought the suspension of the ouster, pending the determination of an appeal he has filed.
It was his argument that the position might be filled, yet Kandie was never given a chance to give his side of the story.
The bench of three judges further said no significant loss, injury or prejudice is likely to be suffered by any of the parties, if the removal of Kandie is not 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.
The judges said while the appeal by Ayuko was arguable, they were not satisfied that the intended appeal shall be rendered nugatory if stay order is not granted.
While nullifying the appointment of Kandie, the court had agreed with Samson Nzivo Muthiani that KeRRA was bound by the 21-day rule on advertising and the agency failed to place the advertisement on the Public Service Commission Website or on radio and other modes of communication.
Muthiani had argued that the process of confirming Kandie was characterised by bad faith as public bodies should not go into the interview process with predetermined outcomes.
Dissatisfied, Ayuko in his capacity as the chairman of the board argued that none of the board members of KeRRA was made a party to the proceedings which would have enabled them to ventilate the process they used in the recruitment.
Ayuko submitted that Kandie’s employment was terminated without going through the due process under the Employment Act, and without affording him an opportunity to be heard.
He informed the court that the intended appeal is arguable and has with high chances of success on the grounds that the judgment violated Kandie’s right to be heard, right to a fair hearing and fair administrative action as provided for in the Constitution.
He said Kandie was serving a 5-year fixed contract and if the decision is not suspended, the period shall lapse.
He added that the DG is in charge of the daily management of KeRRA and a vacancy in that position would cripple the management and sabotage the mandate of the government in relation to the management of 20,000 Kilometers of rural roads in the country.
