Petitioner wants EPRA boss Daniel Kiptoo charged for taking part in his own appointment

A petitioner wants Energy Petroleum Regulatory Authority (EPRA) Director-General Daniel Kiptoo removed from office and criminally charged for being an accomplice in his own “illegal and irregular” appointment.

In a petition filed in court on Friday last week and backed by his sworn affidavit, Mr Francis Awino wants Mr Kiptoo found unfit to hold any other public office citing gross violation of the constitution, commission of a crime, abuse of office and gross misconduct.

He also wants the court to order the Public Service Commission (PSC) to conduct a fresh interview and appointment of new substantive EPRA DG in a manner that is compliant with the law and a prohibition order barring Mr Kiptoo from “taking any further management of EPRA.”

“Your humble petitioner prays for an order declaring that the appointment of Mr Kiptoo as DG EPRA is illegal, irregular, and unlawful and lacks any legal authority and is therefore invalid, illegal, null and void,” the petition, which lists Ethics and Anti-Corruption Commission (EACC) as an interested party, reads. 

The petition, anchored on the report of Auditor-General Nancy Gathungu on the accounts of EPRA for the 2020/21 financial year currently before parliament, accuses Mr Kiptoo of sitting in the same board that was deliberating his own recruitment without making full disclosure.

“The petitioner is alive to behind the scenes dealings and deep secrets that took place within the EPRA board that oversaw a controlled and well managed process in the recruitment and subsequent appointment of the respondent as the EPRA DG,” Mr Awino says in the petition.

Mr Kiptoo was appointed substantive EPRA DG by then Energy Cabinet Secretary Charles Keter on June 28, 2021 following the departure of then DG Pavel Oimeke through interdiction. 

“Removal from office is therefore the constitution’s final answer, a safety valve, to a state or public officer who mistakes himself or herself for a monarch. Power corrupts but the framers of the constitution being cognizant of this fact, built guardrails autocratic exercise of power by the leaders,” he says.

Mr Kiptoo was appointed EPRA acting DG to replace Mr Oimeke and by virtue of his new position, he automatically became a board member of EPRA and attended board meetings that deliberated among other things the recruitment of the authority’s substantive DG.

“He sat in the same board that was deliberating and making decisions of a process he obviously knew he would take part in. Astoundingly, the board and the respondent did not make a full disclosure of the matter raising an undisclosed issue of conflict of interest,” says Mr Awino.

The petition avers that failure by the board and Mr Kiptoo to fully make disclosures is contrary to the code of Governance for state corporations (Mwongozo).

Section 1.16 (b) of the Mwongozo code requires that a board member discloses all real or perceived conflicts of interest and manage such conflicts of interest within an agreed framework.

“The respondent pushed for the appointment of the position was already a member of the board and present in the meeting that facilitated his own appointment.”

In the audit report that Mr Awino has heavily relied on to build his petition, Ms Gathungu accuses the EPRA board of directors over the irregular appointment of Mr Daniel Kiptoo as the DG without the requisite qualifications.

The audit before the National Assembly notes that a review of the human resource records and minutes of the EPRA board of directors meetings revealed that Mr Kiptoo was appointed DG despite not meeting the relevant minimum experience as required by the Energy Act. 

Section 13 (1) of the Energy Act, the parent Act of EPRA, stipulates that the board shall, subject to the approval of the Cabinet Secretary, appoint a DG who shall be the CEO of the authority.

Section 13 (3) (c) (d) of the law goes on to state that a person shall be qualified for appointment as DG if the person has at least seven years management experience at a senior level and at least two years of experience in petroleum and energy sector.

“A review of the applicant’s documents confirmed that the person lacked the requisite management experience at senior level for appointment as DG. The regularity and suitability in the appointment of the DG was a breach in law,” the audit report says.

The minutes show that the DG position was declared vacant on March 31, 2021 and subsequently advertised on April 27, 2021 following the interdiction of Mr Oimeke, the former office holder.

The 83rd special meeting of the board held on May 20, 2021 delegated the task of shortlisting the applicants to the Finance and Administration Committee (FAC) of the board, which formed a team consisting of management to oversee the process that attracted 23 applicants.

The board sought the approval of the CS on June 28, 2021 to appoint the DG.

The audit report shows that the CS appointed the DG on the same day- June 28, 2021- whose terms of offer were accepted and signed by the nominee on the same day instead of the board of directors contrary to the Energy Act.

Section 22 of the Public Officer Ethics Act provides that public officers shall practice and promote the principle that public officers are selected on the basis of integrity, competence and suitability or elected in fair elections.

Therefore, according to the petitioner, Mr Kiptoo’s continued stay in office is an abuse of Chapter 6 of the constitution, which requires a state or public officer to uphold integrity.

“Chapter six of the constitution was not enacted in vain or for cosmetic reasons. The authority assigned to a state or public officer is a public trust to be exercised in a manner that demonstrates respect for the people, brings honour to the nation and dignity to the office,” the petition reads.

The manner in which Mr Kiptoo was appointed as EPRA acting DG has also been flagged by the auditors.

The audit report indicates that the board held its 79th special board meeting on December 14, 2020 and confirmed the interdiction of Mr Oimeke.

“Upon further deliberations, the members unanimously resolved that a recommendation be made to the Cabinet Secretary in charge of the Ministry of Energy for appointment of one of their own, who was representing the CS in the board as the acting DG,” the document reads.

The appointment took effect from December 9, 2020.

What the auditors found curious is that the EPRA board members did not declare a conflict of interest in the matter “since the person” they were pushing for the appointment was a member of the board and sat through the meeting that facilitated his own appointment.

A further review of the board minutes shows that the special board meeting of December 14, 2020 ended at 8pm and that the board’s letter seeking the approval for appointment of Mr Kiptoo as the acting DG was done and sent to the Cabinet Secretary on the same day.

“The board then issued an appointment letter on December 14, 2020 to one of their own to act as DG even before the approval was granted,” the audit report reads.

The report further notes that the acting DG accepted the appointment on the same day.

This is notwithstanding that the letter from the Ministry Energy on the appointment was issued on December 15, 2020.

“This implies that the board appointed him before getting the Ministry’s approval,” states the audit report noting that the appointment was against the law.