High Court in Nairobi has cited Water Sector Trust Fund chief executive officer Ismali Shaiye for contempt of court, bringing a fresh twist to the leadership row at the agency.
Lady Justice Maureen Onyango has ordered the CEO punished for disrespecting court orders on reinstatement of the Trust Fund’s chairman.
The High Court on July 16 granted Activist Okiya Omtatah orders reinstating Patrick Kokonya as WSTF chairman. The judge’s decision followed Omtatah’s petition to the court to revoke the appointment of Mary Khimulu. Justice Onyango further directed that the court denies Attorney General Kihara Kariuki; Water CS Sicily Kariuki; and Khimulu audience until the order is implemented.
“The OCS Capitol Hill police station or OCPD Kilimani or any other police officer with jurisdiction be ordered to enforce the stay orders this court issued on July 15, 2020,” the order reads.
The contempt case against Shaiye will be heard on October 6. Omtatah told the Star on Tuesday that the parties were served. It has since been established that Kokonya was yet to access his office five days after the orders were issued. The embattled chairman, when contacted on the status of the order, said he was still waiting for the police’s response on the directive for enforcement.
“They told me that they were still verifying their orders. I am waiting for their report before I go to the office this afternoon,” he said. Kokonya’s appointment had been de-gazetted under circumstances linked to his decision against extending Shaiye’s contract. Omtatah, in his petition, said it was against the rule of natural justice for the chairman to be victimized for following the law.
The July 15 orders therefore meant that Khimulu’s appointment is pending until the matter is resolved. Shaiye’s second and final 3-year term in office is due on November 9, 2020 but he wrote to the board seeking an extension. The board sought the Attorney General’s view on the request and was told the CEO was ineligible for appointment.
“We are of the considered opinion that since the CEO has served two terms of three years each, he is ineligible for reappointment for third term of three years,” an advisory signed by Solicitor General Kennedy Ogeto reads.
misc 64 of 2020
The AG relied on the Mwongozo Code of Governance in arriving at the decision as the Water Act is silent on the term of the CEO tenure.
Mwongozo Code stipulates that the term of a CEO shall be a three year term or as otherwise provided under any other law, renewable once subjected to performance evaluated by the board.
The Attorney General further cited the Fund’s Human Resources Policy manual which limits the CEO’s tenure to two terms. It was on this advisory that Kokonya convened a meeting on June 16 but the same did not take off for lack of quorum. The meeting was convened later on June 23 under the provision for what constitutes a quorum for a second meeting.
The State Corporations Act provides that a quorum will be even if all members don’t arrive by the lapse of 30 minutes after the appointed time for the second meeting.
Kokonya thus wrote to Shaiye stating that it was not possible for the board to renew his contract, and issued him with a letter to proceed on terminal leave.
The board appointed Willis Okello – chief manager Investments and Programmes as acting chief executive officer.
The CEO refused to proceed on terminal leave as directed, being the genesis of the woes at the state agency tasked with multi-billion shilling projects.
The donor community has written to the Water CS to ensure there was a stable and apt leadership of the Fund.
“The government of Kenya should ensure a transition process and succession planning that is fully transparent and naturally in line with the applicable legislative framework,” the letter reads.
It was signed by envoys from the EU Delegation; Denmark; Sweden; Finland and country director KfW Development Bank