Kenya Ports Authority (KPA) acting Managing Director John Mwangemi has been cleared to assume office after orders suspending his appointment were expunged from court records.
This was after the Employment and Labour Relations Court found that the order as extracted and served to KPA was in conflict with the court’s handwritten records.
Justice Byram Ongaya clarified that the order that allegedly quashed Mr Mwangemi’s appointment was erroneous and directed that a proper one be extracted, verified and served to the parties.
“The orders on record as extracted on July 7, are hereby expunged from the courts record, and proper order as given by the court on the same day be extracted in the strict wording of the court’s handwritten orders as given on the said date and with consent of parties approving extraction,” said the judge.
Justice Ongaya, having found that an erroneous order that was not in line with the relief given in the courts was extracted and released to the public, directed the parties in the suit , if they so wish, to publish the correct one clarifying the court’s position on the matter.
“The parties are at liberty to publish and publicize in print media within three days from today, the fact that no order of leave to operate as a stay or no final orders had been granted by court on July 7, and the correct order as given on the same date extracted per order above be published accordingly,” said.
According to the court, the only relief given in the case last week was permission to file a judicial review to challenge the appointment of Mr Mwangemi and that there was no final order quashing appointment of Mr Mwangemi by Treasury Cabinet Secretary Ukuru Yatani.
So as it stands, Commission for Human Rights and Justice(CHRJ) only has the authority of the court to apply for judicial review orders of prohibition, restraining KPA and Dr Yatani from retaining Mr Mwangemi to act as the agency’s acting MD, and carrying duties as the facility’s boss due to unfair, secretive staff recruitment process to the post.
The directive expunging the erroneous order was issued after KPA rushed to the court seeking to have the same suspended citing falsification of court documents.
In court documents filed under a certificate of agency, KPA lamented to the Judge that the directive was issued without the court first giving the agency opportunity to defend itself.
Through Mr Augustus Wafula, the port agency lamented that the directive implied that the court has already made a final substantive order quashing Mr Mwangemi’s appointment exparte, and without an opportunity to be heard on the issues raised.
“Upon perusal of the court file , I have established that the court has not made any such final orders exparte, and it appears that the alleged order was falsified , which action violates the rule of law and the dignity of the court,” said Mr Wafula.
KPA Head of Litigation and Disputes John Kinyanjui said that the extraction of the erroneous order was a well-orchestrated scheme to embarrass the court and or bring its dignity and the entire judicial system to disrepute and public ridicule.
“Court orders are sacrosanct and must be obeyed by all parties, and any party involved in the falsification of court orders is guilty of contempt of court, which crime must be investigated and perpetrators brought to book,” he said
According to KPA, CHRJ was only given permission to commence judicial review proceedings and that the leave granted did not and does not amount to a substantive order quashing the appointment of Mr Mwangemi.
“The action of knowingly extracting an order, which is purported to have been issued by this court amounts to contempt of court, and is criminal which ought to be purged before this matter can proceed,” said Mr Kinyanjui.
He maintained that orders extracted and served on the KPA were completely at variance with the orders that the court issued, which was mere permission to commence judicial proceedings.
Through its executive director Julius Ogogoh, the lobby group wants the appointment permanently annulled, arguing that it was done secretively in violation of the due process of recruitment as provided for under both KPA Act and Public Service Commission Act.
He argues that KPA Act provides that appointment to the position should be done in consultation with the Kenya Ports Authority Board of Directors.
Mr Ogogoh argues that the board, which was supposed to have consulted widely with Dr Yatani , before the appointment could be done is not properly constituted to operate as a board.
The term for the chairperson of the board and three other board members expired in June 5 this year.
The lobby argue that the handpicking of Mr Mwangemi locked out qualified Kenyans.
Mr Mwangemi was appointed to the position in an acting capacity effective July 1. He replaced Mr Rashid Salim , who is on a three months terminal leave ahead of his retirement in September.
Mr Salim took over in an acting capacity following the resignation of then MD Daniel Manduku, and since then, KPA has not had a substantive boss.