The Labour court has revoked the decision of Transport Cabinet Secretary James Macharia to reappoint three people who are from one ethnic group to a State agency that is mandated to improve public transport in Nairobi.
Justice Nzioki Wa Makau found it was unconstitutional for the government to appoint Mary Waithigieni Chege, Zachariah Karenge Mungai and Ronald Ndirangu Ndegwa as members of the Nairobi Metropolitan Transport Authority (Namata) board.
Among the projects that the agency is overseeing is the implementation of the Sh5.6 billion Nairobi Bus Rapid Transit (BRT) route which is expected to support the city’s public commuter services and help ease traffic congestion.
Judge Makau, while ruling on a case filed by the Law Society of Kenya (LSK), found the appointments of the three board members to be unlawful and unconstitutional for failure to represent the diverse Kenyan ethnicity.
Appointments not competitive
LSK, through lawyer Manwa Hosea, challenged the decision of the Cabinet secretary on grounds that the appointments were not competitive, lacked transparency and failed to take into account representation of Kenya's diverse ethnic communities.
The reappointments were announced to the public via a gazette notice dated February 5, 2021 and the appointees were to serve for a period of three years. Their first appointment was in February 2018.
"The interested parties subject of this suit (Chege, Mungai and Ndegwa) are all from one ethnic community and do not represent the diverse fabric that is the Kenyan nation. Their appointment, therefore, smacks of the evils of old which Kenyans opted to do away with in the Constitution we took on for ourselves in 2010," said the judge.
He directed that the three appointees should cease holding their positions. He found the appointments had disregarded the national values espoused in the Constitution.
Uphold national values
"It is 2021, the Constitution has been in existence for the last 11 years. Under Article 10 of the Constitution, it behoves all Kenyans to uphold the national values and principles of governance and more so all State organs and State officers and public officers.
“The Nairobi Metropolitan Area Authority and the Cabinet secretary in charge of Transport, Infrastructure, Housing and Urban Development are not immune from the provisions of Article 10, 27(4), 232(1)(d) and (h)," stated the judge.
Namata was created by President Uhuru Kenyatta in 2017 through an executive order which was tasked with providing the metropolitan area with a world-class public transport system.
The authority covers Nairobi, Kiambu, Murang’a, Machakos, and Kajiado counties.
Currently, it is undertaking the 27-kilometre BRT project alignment along Thika Road from Ruiru to Kenyatta National Hospital through Nairobi CBD.