Activist Okiya Omtatah Okoiti has moved to the Labour Court seeking orders to reverse the de-gazzetment of Water Sector Trust Fund Chairman Mr Patrick Kokonya.
Under a certificate of urgency, Omtatah has petitioned the court to revoke the appointment of Amb Mary M Khimulu and reinstate Mr Kokonya who was de-gazzeted on 29th June 2020 in Gazzete Notice no.4467. In his petition,Omtatah argues that it is against the rule of natural justice for Mr Kokonya to be victimized for acting legally. Mr Kokonya hails from Busia while Ambassador Khimulu is a daughter to former Cabinet Minister Jeremiah Nyaga and hails from Embu County, the home county of Water and Irrigation Cabinet Secretary Sicily Kariuki under whose docket the Water Sector Trust Fund falls.
The de-gazetement of Mr Kokonya followed a controversial sequence of events at the Water Sector Trust Fund that centered on renewal of the third 3-year term of CEO Mr Shaiye Ismail. Mr Shaiye’s 2nd and final 3-year term comes to an end on 9th November 2020 and he has been using all means to remain at the helm in total disregard of provisions of the law.
It has since been established that immediately Mr Kokonya was degazzeted, the new chair of the Board of Trustees under directions Mr Shaiye hurriedly convened a meeting to give him another 3-year term disregarding the advice from the attorney General to the Board stating that according to the law, Mr Shaiye wasn’t eligible for the renewal of his tenure.
Mr Shaiye is not the first CEO to refuse to vacate the office upon expiry of his tenure. Reliable sources say that Mr Shaiye’s predecessor equally refused to vacate office even after the new CEO at the Fund had been recruited and appointed.
The following events preceded the revocation of Mr Kokonya’s appointment,read on and make your own judgment.
On 1st November, 2019 and 1st April, 2020 Mr. Shaiye wrote to the Board of Trustees seeking an extension and or third term of Office at the Water Fund.
On receiving the request, the Board of Trustees in a letter signed by the Chairman, Mr. Patrick O. Kokonya sought to understand the legal implications of an additional term renewal by requesting for a valid and reliable legal opinion from the Attorney-General in a letter Ref: WSTF/1/Chairman/Vol.1/1 dated 11th December, 2019 and received on 23rd December, 2019.
The Attorney-General in his response through a letter Ref: AG/ CONF/21/78/10 Vol.1 dated 28th April, 2020 asserted that the CEO was ineligible for reappointment and that the Board was duty-bound to adhere with the law which states that a CEO can only serve one 3-year term that is renewable once, meaning Mr. Shaiye was not eligible for a third term at the Fund.
The Attorney-General Stated: “…We have considered the information and documents provided by the Fund in the light of the above-mentioned instruments, namely, the Mwongozo Code of Governance, the Fund’s Human Resource Policies & Procedures Manual and the referenced Circular issued by the Head of Public Service and are of the considered opinion that since the CEO has served for two (2) terms of three (3) years each, he is ineligible for re-appointment for a third term of three (3) years…”.
Based on the Attorney General’s legal advice, the Chairman convened a Special Board Meeting to be held on 16th June, 2020 and copied the Cabinet Secretary and Principal Secretary on the same citing State Corporations Act (Cap.446), Section 8. Meetings and Procedure of Boards: 1(e) the quorum for the conduct of business at a meeting of a Board shall be two-thirds of the total number of members of a Board or the number nearest to but not less than two-thirds: Provided that where within half an hour after the time appointed for the meeting a quorum is not present, the meeting shall be adjourned to the same day in the next week, at the same time and place, or at such time as the members may determine, and if at the adjourned meeting a quorum is not present within half an hour from the time appointed for the meeting the members present shall be deemed to be a quorum.
Since there was no quorum, the same meeting was adjourned to 23rd June, 2020 within the legal provisions as highlighted above in order to deliberate smooth transition and succession planning at the Fund. Other reasons for insufficient quorum was the prevailing global Covid-19 challenges and other reasons beyond control. The law allows members to deliberate and make resolutions on a meeting adjourned due to lack of quorum.
Following the Board Resolution, the Chairman, Mr. Patrick Kokonya, wrote on behalf of the Board – to the then CEO, Mr. Ismail Shaiye stating that it was not possible for the Board to renew his contract. He was subsequently issued with a Letter for him to proceed on three months terminal leave and accumulated forty (40) days paid annual leave as stipulated in the law and government circulars issued from time to time.
Information and documents in our possession which are now in public domain also indicates that the Development Partners of Water Fund wrote a letter Ref. Ares(2020)3000056-10/06/2020 to Ms. Sicily Kariuki, the Cabinet Secretary, Ministry of Water & Sanitation and Irrigation and copied Mr. Joseph Irungu, the Principal Secretary and Mr. Patrick Kokonya (Chairman, Water Sector Trust Fund) on “the Succession of the Chief Executive Officer Position, Water Sector Trust Fund…” Their request was for the Government of Kenya to ensure a stable and apt leadership of the Fund be assured and for a transition process and succession planning that is fully transparent and naturally in line with the applicable legislative framework. The letter by Development Partners was signed off by the Ambassador, European Union Delegation in Nairobi, the Ambassador, Embassy of Denmark, the Ambassador, Embassy of Sweden, the Ambassador, Embassy of Finland and the Country Director of KfW.
In that stated Special Board Meeting, the Board equally resolved and appointed Mr. Willis Okello Ombai, Chief Manager, Investments and Programs as the Acting Chief Executive Officer (CEO) to oversee a smooth transition and institute succession planning whilst the Board puts in place mechanisms to recruit a substantive CEO in consultation with the Parent Ministry.
Ironically, the outgoing CEO refused to proceed on terminal and annual leave but instead compromised a section of Board of Trustees (Board of Directors) while roping in Water CS Sicily Kariuki into the saga in an interesting turn of events at the Fund. Mr. Shaiye has been on a media rampage sponsoring a media campaigns with the sole intention of painting Mr. Kokonya in bad light and tarnishing his name. The stage was set through this malicious media campaign laced with extortions to have Mr. Kokonya’s appointment as Water Fund Chairman Revoked.
On 29th June, 2020, a Gazette Notice was issued and executed on 30th June, 2020 to the effect that Mr. Patrick O. Kokonya had been replaced with one Ambassador (Rtd.) Dr. Mary Mbiro Khimulu daughter to the late Hon. Jeremiah Nyagah, as the Chairman of the Board of Trustees, Water Sector Trust Fund. It is critical for public information that Amb. Mary Khimulu is still the Chairperson of the Board of Directors of the Regional Centre on Ground Water Resources Education, Training and Research in Eastern Africa through a Gazette Notice of 3rd May, 2019 Vol. CXXI-No.56.
Following the removal of Mr Kokonya,it is said that Water Fund Board of Trustees under the newly appointed Chairperson convened on 10th July 2020 and fraudulently extended Mr. Ismail Fahmy Shaiye’s Contract in Office in total defiance to the legal advice of the Honorable Attorney-General’s Office. It is suspected that the emerging conflict is all about control of huge billions of funds at the Water Fund from Development Partners and the National Exchequer. Some interested cartels intend to loot those resources to facilitate and oil their political campaign machines in the 2022 General Elections and they feel that strict Mr Kokonya is an obstacle . It is generally known that Mr Shaiye is a close confidant of former National Assembly Majority leader Aden Duale.