Kenya: High Court Rebuffs Ngilu in Row Over Nominee for County Secretary

The High Court has rejected Kitui Governor Charity Ngilu's request to review the court's ruling that quashed her decision to appoint an officer from the Office of the President as county secretary.

The governor and the county secretary, Joshua Kimwetich, wanted the court to review, change or set aside the judgment and substitute it with an order urging the parties involved to comply with the Constitution and rules governing public appointments.

But Justice Robert Limo dismissed the request, saying his court had no powers to revise its own findings on the legality of Mr Kimwetich's seconding from the national government to Kitui.

"It is clear that the applicant felt aggrieved by the decision of this court but instead of preferring an appeal to overturn the decision, they have chosen the wrong option for review when they have not met the conditions listed under Order 45(1) of Civil Procedure Rules," said the judge, dealing a second blow to the governor.

Mr Kimwetich was the secretary for administration in the State Department of Cooperatives when he was seconded to the county government in 2017 upon the request of Governor Ngilu.

In court papers he is described as a seasoned administrator and a long-serving public servant who rose through the ranks from district officer to district commissioner, county commissioner and secretary for administration in the public service.

The judge dismissed the argument that the governor and the county assembly had resolved their differences on the appointment of Mr Kimwetich and the hatchet had been buried.

"The applicants have made interesting and strange submissions, which is to ask this court to review the judgment in order to validate irregularities noted in the appointment," the judge said.

Their lawyer, County Attorney Caroline Musango, when pressed on how a court can turn its back on a clear provision of the Constitution and the statute, said that a review should be done because of the "handshake" between the governor and members of the county assembly.

Justice Limo said Mr Kimwetich's appointment was unconstitutional and illegal and this could not be addressed through a political truce.

"For the record, the unconstitutionality and illegality of Kimwetich's appointment cannot be cured or 'sanitised' through a 'handshake' or a consent, even if there was such handshake (which was not established in any event). This court cannot be asked to review its judgment to attain a result that violates the Constitution," the judge said.

In the March 15 judgment, the court found that Governor Ngilu's decision to appoint and accept the seconding of Mr Kimwetich to the county was unlawful for failing to follow procedures involved in appointing public officers.

The judge said the governor's action was arbitrary and unilateral as she never consulted the county assembly, which was the petitioner in the court case.

It had been submitted that she faced hostility from the county assembly owing to political differences with MCAs.

But the judge said the law covers such scenarios because under Section 10 of the Public Appointment (County Assemblies Approval) Act, it provides that where the county assembly rejects a nominee, the appointing authority is required to forward a different one.

"The governor has not tabled any evidence showing that she was frustrated in her quest to appoint a qualified person to fill the vacant position of county secretary," the judge said.

Justice Limo also directed the governor to pay the county assembly's costs of the case, which he capped at Sh500,000.

He said that while it could be true that Mr Kimwetich's appointment may have been well intended for the common good and on account of his impressive resume and wealth of experience, there was no doubt that key and crucial constitutional statutory procedures were overlooked.

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