A High Court in Nakuru has declared the appointment of Dr Philip Kiptanui Kirwa as the Chief Executive Officer of Moi Teaching and Referral Hospital (MTRH) null and void.
Justice Mohochi S.M. ruled that the recruitment process was fundamentally flawed, marred by a direct conflict of interest and a complete lack of transparency.
The court found that Dr Kirwa, who was serving as the acting CEO at the time, improperly participated in the recruitment process for his own position. Specifically, the judge noted that Kirwa “participated in convening board meetings to consider applications,” a clear violation of the legal principle nemo judex in causa sua, which dictates that no one should be a judge in their own cause.
Furthermore, the court criticised the MTRH Board for failing to provide an “auditable paper trail” to justify their decision.
Why court nullified MTRH CEO’s appointment
The judgment highlighted that the hospital attempted to shield its internal deliberations behind the Data Protection Act and the Official Secrets Act. Justice Mohochi firmly rejected this defence, stating: “Public bodies cannot hide the metrics of its decision and simultaneously ask a constitutional court to presume its legality.”
The ruling also addressed the vetting process, declaring it unconstitutional to require Chapter Six clearance certificates only after a candidate had been selected. The court emphasised that integrity checks must be part of the suitability assessment before appointment, not a formality afterwards.
Additionally, the court declared the requirement that the Head of Public Service provide “concurrence” on board appointments illegal, ruling it a “usurpation of the powers vested in the respective Boards of Directors.”
Justice Mohochi issued a Mandamus order, compelling the hospital to initiate a fresh, proper, and legal recruitment process within 60 days, strictly adhering to Articles 10, 27, 73, and 232 of the Constitution.
While the judgment focused heavily on MTRH, the orders were not limited to the hospital. The court applied the same rigorous standards to three other state corporations, declaring the appointments of the CEOs of Athi Water Works Development Agency, Kenya Broadcasting Corporation (KBC), and Kenya National Shipping Line Ltd. equally invalid.
