Court cases delay plans by water agencies to recruit new CEOs

The recruitment of Chief Executive Officers (CEO’s) of two water agencies is in limbo following legal tussles.

The Employment and Labour Relations Court in Nairobi has dealt a blow to the National Water Harvesting and Storage Authority (NWHSA) after it stopped the recruitment of its CEO.

Mr Kenneth Alex Migwi Mwangi sued the NWHSA board of directors and the authority for flouting the Water Act in the advertisement for the recruitment of the CEO vide reference number NWHSA/CEO/2019/2020/01.

In court documents seen by Nation, Mr Mwangi averred that the Water Act provides for qualification of a CEO to be; a Kenyan citizen, hold a degree from a University recognised in Kenya and have at least 10 years’ experience, five of which should be in a senior management position in a public or private organisation.

“The individual must also meet the requirements of leadership and integrity set out in Chapter Six of the Constitution,” he said.

On the contrary, the advertisement by NWHSA required 15 years of experience against the statutory provision of the Water Act, prompting the legal suit.

On April 9, 2020, the Labour Court quashed the water authority’s advertisement or any decision purporting to recruit its CEO based on the criteria as set out in its advertisement within 21 days.

“That, leave be granted for the ex-parte applicant to apply for judicial review by way of an order of prohibition to the respondents from applying the criteria of 15 years professional experience set out in the advertisement for the position of CEO within 21 days.”

The NWHSA board Chairman Eric Okeyo declined to comment on the matter.

Elsewhere, in Western Kenya, the move by Lake Victoria North Water Works Development Agency (LVNWWDA) to recruit a CEO is also in limbo after two petitioners moved to court challenging the legitimacy of the agency’s chairman Dr Julius Kones.

The agency had advertised the position of CEO but legal hurdles now threaten to stop the process until issues raised by the two petitioners are addressed.

The two, Mr Joseph Oyollo Imbuye and Godfrey Lumumba Cheti, residents of Kakamega County moved to the Employment and Labour Relations court in Kisumu seeking the ouster of the agency’s board chairman Dr Kones.

They filed the petition under certificate of urgency citing that former Water Cabinet Secretary Simon Chelugui erred in his appointment of Dr Kones who is not a resident of the agency’s basin area.
They also cited integrity issues in the appointment.
“In making the appointment, the 1st respondent (Water CS) violated mandatory provisions of section 66 of the Water Act which requires that all appointments to the board shall be made from the (Lake Victoria North) basin area,” the duo states in court documents.

“In particular, the 1st respondent (Water CS) purported to appoint the 3rd respondent (Dr Kones) to the state corporation while he is the immediate former MP for Konoin Constituency, in Bomet County, Rift Valley area of the Republic of Kenya,” they claimed.

They stated that pursuant to legal notice number 28 dated April 26, 2019, the Water CS determined the jurisdiction and territory to be served by the agency to be Kakamega, Vihiga, Busia, Bungoma, Trans-Nzoia, Uasin Gishu and Nandi Counties.
“The CS vide the gazette notice determined that Bomet County is within the territorial jurisdiction of Lake Victoria South Water Works Development Agency (LVNWWDA),” they stated further implying the illegality committed in Dr Kone’s appointment.

Dr Kones confirmed that the process to hire a substantive CEO had kicked off.

He however, noted that all the legal tussles were being handled by the agency’s advocates.

“We have not had a substantive CEO for nearly two years and the ministry gave us a go ahead to recruit one and we have already advertised for the position,” Dr Kones told Nation.

The petitioners, however, believe that it will be an illegality for Dr Kones to preside over the hiring over queries surrounding his appointment by former Water CS Chelugui.

Attorney General Kihara Kariuki had issued an advisory to the Water CS over Dr Kones’ appointment but to date, no changes have been made, prompting the duo to move to court.

In his advisory dated May 28, 2019, the AG cited section 66 (1) (a) of the Water Act.

“The importance of the above provision is that any appointment outside the provision will be defective as pointed out in the communication. Kindly note that the ministry erred by appointing the chairperson through section 66 (1) (b) of the Act, which refers to the appointment of other board members,” Mr Kariuki wrote.

The AG had also advised for the amendment of the appointing instrument to align it with the act after the CS appointed five instead of four board members in addition to the chairperson.

“The appointment of the members by the Ministry is accordingly outside the law,” the AG asserted.
The petitioners said that from the forgoing, they demand that Water CS Sicily Kariuki moves with speed to ensure illegalities committed by the past regime are addressed as per the law.

“As residents of Kakamega, we have a right to petition so that we are not marginalised in state appointments. What belongs to the Lake Victoria North basin should be left for us,” Mr Cheti said.
Mr Imbuye said: “We will follow the matter to the letter until the concerns of the people within the Lake Victoria North catchment area are addressed.”