Kenya: Court Saves Kenya Power MD's Job

24 November 2020

The Labour court has struck out a case that was challenging the appointment of Mr Bernard Ngugi as Kenya Power's Managing Director.

Justice Maureen Onyango struck out the suit filed in December last year by Ms Maureen Nyambura Ngigi Warui seeking suspension of a notice issued by Kenya Power's Board of Directors appointing Mr Ngugi as the MD and CEO of the company.

Ms Nyambura had argued that Mr Ngugi was not suitable to hold the key position on grounds that he has integrity issues relating to the procurement of transformers when he was the General Manager Supply Chain.

The petitioner had claimed that Mr Ngugi was affected by the presidential directive issued on June 1, 2018 requiring public officers, among them heads of procurements and accounting units in Ministries and state corporations, to step aside to facilitate fresh vetting.

She also questioned the fairness and impartiality of the selection process and in effect, the suitability of Mr Ngugi, who was appointed the MD on October 29, 2019.

Defective documents

But the Kenya Power Board filed an objection to the case on grounds that Ms Nyambura's court documents had defects.

The firm told court that the petition was incurably defective as the Commissioner for Oaths who commissioned Ms Nyambura's supporting affidavit was the very same advocate who signed her petition's certificate of urgency.

The court heard that on the face of the documents, the advocate acting for the petitioner, one Samuel Ndung'u, is also the Commissioner for Oaths who commissioned the affidavit.

The Board relied on provisions of Section 4(1) of the Oaths and Statutory Declarations Act (Cap 15) Laws of Kenya which provides that a Commissioner for Oaths should not participate in proceedings or matters in which he is an advocate for any of the parties concerned.

Justice Onyango concurred with the Board, and ruled that a defect in an affidavit is not a mere technicality.

"An affidavit sworn in violation of Section 4(1) of the Oaths and Statutory Declarations Act is for all intents and purposes not an affidavit as envisaged by law. That this does not represent a mere irregularity," said justice Onyango.

The court held that without the affidavit and the documents attached, the averments of fact in the petition are incapable for proof.

"It is therefore my considered opinion that the petition will be a hollow shell without the documents attached to the affidavit," the court ruled.

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