Court blocks Erastus Githinji’s appointment to Tax Appeals Tribunal

Retired Court of Appeal Judge Erastus Githinji will not start serving anytime soon as the chairperson for the Tax Appeals Tribunal following an order by the Employment and Labour Relations Court.

Justice Hellen Wasilwa on Thursday barred him from assuming the role following a case by Chama Cha Mawakili (CCK) which protested against his appointment.

“Pending the hearing and determination of this case, a conservatory order is hereby issued stopping Justice Githinji from taking the oath of office, assuming, continuing or performing functions of the chairperson of the Tax Appeals Tribunal,” said Justice Wasilwa.

Chama Cha Wakili’s case came after several lawyers said they were dissatisfied with Mr Githinji’s appointment by National Treasury Cabinet Secretary Ukur Yatani.

CCK argues that the appointment violates transparency and fair competition or merit when it comes to such posts and is contrary to the Public Officers Ethics Act and the Public Service Act.

Through lawyer Javier Munzala, the group further noted that the Constitution requires public office appointments to be subjected to a mandatory process of public participation, which includes advertising the vacancy, publishing lists of all applicants as well as shortlisted candidates, holding interviews and announcing the successful ones.

The lobby told the court that the post requires a person with the qualifications of a High Court judge and that considering that Justice Githinji served at the appellate court until his retirement, he is unsuitable.

It also said that the appointment of members to the tribunal by the Executive, on whose behalf the Kenya Revenue Authority (KRA) makes tax decisions, threatens and violates the right to fair hearing in as much the law gives the CS powers to do so.

“The culture of recycling retirees to public office violates the Treasury CS’s obligation to oversee representation of Kenya’s diversified communities and afford adequate as well as equitable opportunities for appointment, training and advancement, at all levels of public service, to men and women plus persons with disability,” said Mr Munzala.

The CS gazetted Justice Githinji’s appointment for a five-year term on April 15, and last week came a protest letter by parties seeking revocation of the appointment.

In the letter to the CS, the Law Society of Kenya (LSK) said Justice Githinji’s age locks him out of the office.

The law requires that a person appointed to head the tribunal be one qualified to serve as a judge of the High Court and whose age is not 70 or more.

While faulting the CS for appointing Mr Githinji, the LSK says the move is contrary to a section of the Tax Appeals Tribunal Act and that it violates the principles of good governance, leadership and integrity requirements on the part of a State officer.

Justice Githinji was first appointed judge in May 1987 and was moved to the Court of Appeal in June 2003, where he served till his retirement last December.

He is known winning a battle against the Judicial Service Commission’s decision to send him on retirement early.

He termed the JSC’s decision unlawful, saying it resolved to send him home prematurely.

The bone of contention arose after the Judiciary Chief Registrar wrote to him notifying him that he was set to retire on June 1, 2009, after turning 70 years old. The letter thanked Mr Githinji for his 43 years and 10 months of service.

He protested, saying his birth certificate indicates that he was born on December 30, 1949, hence his victory in the matter handled by the Employment and Labour Relations Court.

CCK wants the appointment and gazettement declared unconstitutional and the judge be compelled to indemnify the public and personally refund any remuneration to the CS.