Why Cofek challenged the appointment of Ms Lucy Mbugua as Kenya Airports Authority Managing Director

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KAA Managing Director Lucy Mbugua: Cofek has sued over her recruitment. Justice Mumbi Ngugi has directed that matter, being of a labour nature, mentioned for directions at the Industrial Court on October 8, 2014

The 1st Respondent is responsible for governance and direction of the 2nd Respondent including but not limited to appointment of its Board of Directors and Managing Director in line with the Constitution; Sec. 6 of the Kenya Airports Authority (KAA) Act, Cap. 395 and the State Corporations Act, Cap. 446. Under Art. 152(4)(a) of the Constitution, the 1st Respondent assumed office by swearing faithfulness to the people and Republic of Kenya and obedience to the Constitution.

The 2nd Respondent is a State Corporation under the Ministry of Transport & Infrastructure and is the owner and operator of over 9 civilian airports and airstrips in Kenya. It was established by an Act of Parliament in 1992. The KAA Act, Cap. 395, provides for the powers and functions of the Authority. Its’ head office is on the property of Jomo Kenyatta International Airport in Embakasi area, Nairobi.

The 3rd Respondent is the Principal Legal Adviser to Government of Kenya as prescribed under Art. 156 of the Constitution and other statutes and whose primary responsibilities, among others, is to ensure that the 1st, 2nd, 4th and 5th Respondents obey and operate within the rule of law, at all times. Among other constitutional obligations, he is required at Art. 156(6) to promote, protect and uphold the rule of law and defend the public interest.

The 4th Respondent is the purported Managing Director of the 2nd Respondent after Kenya Gazette Notice No. 3226 dated April 28, 2014 as published on May 16, 2014 by the 1st Respondent and which 1st Respondent selectively invoked provisions of Sec. 6 of the KAA Act, Cap.395. Prior to the said posting, the 2nd Respondent acted as Managing Director from August 2013 to January 2014 as well as being the substantive General Manager (Marketing & Business Development) between April 2004 to August 2013. Between November 2003 to March 2004, she worked as Head of Marketing and Corporate Communications with the national carrier, Kenya Airways Ltd.

The 5th Respondent is a statutory Commission established after Kenya’s 3rd President Hon. Mwai Kibaki signed the Ethics and Anti-Corruption Act on August 29, 2011. At Sec. 11(1)(c)-(f) of the said Act, the Commission is required to receive complaints on the breach of the code of ethics by public officers; Investigate and recommend to the Director of Public Prosecutions the prosecution of any acts of corruption or violation of codes of ethics or other matters prescribed under the Act or any other law enacted pursuant to Chapter Six (6) of the Constitution; Recommend appropriate action to be taken against State officers or public officers alleged to have engaged in unethical conduct; and Oversee the enforcement of codes of ethics prescribed for public officers who include the Board of Directors of the 2nd Respondent, collectively and individually.

The 6th Respondent is or was an employee of the Kenya Railways Training Institute. According to his Lawyer’s letter (from Simba & Simba Advocates to the Petitioner/Applicant, among other addressees as dated March 13, 2014 under Ref: 05/CIV/6175/14 and specifically at page of the said letter), he clarified that he was seconded from the Ministry of Transport, by the Principal Secretary of the 1st Respondent to assist in managing the recruitment process (of the Managing Director of the 2nd Respondent) and that he was not party to the actual recruitment process. There were no reasons given neither his procurement nor independence was not stated in the same manner his assignment remained mysterious as to the illegality altogether of his purported “assistance”, his suitability or otherwise and whose terms of service were never made clear in the 2nd Respondent’s Board process of hiring its’ Managing Director.

Having received credible information from multiple anonymous sources that the recruitment of the Managing Director of the 2nd Respondent had been marred by massive irregularities and open bias by sections of the Board of the 2nd Respondent, the Secretary General of the Applicant/Petitioner on January 28, 2014 around 9.00 am called and informed the 1st Respondent who in turn requested a meeting at his office on January 30, 2014. In the said and only telephone conversation, and to confirm his arrogance and near impunity, the 1st Respondent told the Applicant/Petitioner in Swahili “… tutakutana kortini (we will meet in Court)!

Since the Applicant/Petitioner has always been formal and wanted the issues to remain and be addressed in most ethical and formal manner, he wrote to the 1st Respondent a 2 page letter, on January 28, 2014 together with the unauthenticated score sheets and a summary of “contentious issues”, from the anonymous source, which had indicated the severe irregularity in the manner the exercise was conducted – in both unethical and unprofessional manner by a specific Board member of the 2nd Respondent (one Mr J. Irungu as per interview evaluation score sheets). The letter was copied to the 5th Respondent who was requested to investigate and revert to the Applicant/Petitioner.

In the said letter by the Applicant/Petitioner, the 1st Respondent was urged to investigate the claims, revoke the appointment and order for a fresh recruitment exercise. On its vote and in line with ethical transaction of rights-based advocacy, the Applicant/Petitioner also deferred the meeting requested by the 1st Respondent, at his office on January 30, 2014, pending the 1st Respondent’s formal response to the letter of January 28, 2014.

On February 4, 2014 The Star Newspaper ran a story entitled “KAA Boss appointment questioned by Cofek (Applicant/Petitioner) on page 1 and 6.

Responding on behalf of the 1st Respondent, the Principal Secretary in a letter (Ref: MOT/AT/28/238/Vol.IV(128) dated February 5, 2014 and only received by the Applicant/Petitioner on February 14, 2014 – was derogatorily brief, deliberately avoided responding to the array of issues as raised in the Applicant/Petitioner letter of January 28, 2014 only retorting in part thus, “The Cabinet Secretary has noted the contents of your letter. We would like to confirm that the appointment of the Managing Director, Kenya Airports Authority was done in line with the law, regulations and policies regarding the appointment of CEO’s in State Corporations”.

Reacting to “The Star” Newspaper article “KAA Boss appointment questioned by Cofek (Applicant/Petitioner) the 6th Respondent who claimed that he had adversely been mentioned wrote through Simba & Simba Advocates on March 13, 2014 to the Applicant/Petitioner and the editors of The Star newspaper threatening to sue if the said parties did not comply with 5 conditions by March 21, 2014. The Applicant/Petitioner did not comply with the same but was never sued. The 6th Respondent, in other words was merely out to intimidate but failed to appreciate the enormity of some of the statements he made in the said 5-page letter.

The 6th Respondent statements at Page 2 of his letter which stated “… he was not an appointee of the KAA Board; … he was seconded from the Ministry of Transport (and Infrastructure) by the (Principal) Secretary to assist in managing the recruitment process, and was not party to the actual recruitment process” are contradictory and misleading. That the 6th Respondent was not recruited by the Board yet he was seconded by an agent of the 1st Respondent to “assist in managing the recruitment process” is a clear interference with the mandate of the 2nd Respondent Board of Directors role under the KAA Act and the State Corporations Act.

In any case the revelations of the 6th Respondent run counter to Sec. 6 of the KAA Act which does not envisage such form of a third party, if any, in the “consultations” between the Board of Directors of the 2nd Respondent and the 1st Respondent in appointing the Managing Director of the 2nd Respondent.

That the 6th Respondent involvement in “assisting to manage the recruitment process” at the invitation of the 1st Respondent’s agent (Principal Secretary) and who has separately been adversely mentioned in his family succession fraud is a revelation that the 1st Respondent had undeclared interests in the recruitment of the Managing Director of the 2nd Respondent. As one reader under the name “Mdakama” wrote on The Standard Newspaper online comment, on April 5, 2014 the Applicant/Petitioner cannot agree more – “If Nduva (1st Respondent Principal Secretary) is prepared to short change his three siblings plus his mother and gobble up fifty percent of his late father’s estate while the rest of his family of four share the other half, what hope do Kenyans have that he won’t show such greed when serving people who are not even his relatives?”

Upon an email reminder by the Applicant/Petitioner on February 24, 2014 to the 5th Respondent on the same matter, on February 27, 2014 and under Ref; EACC/6/11/3(37), the Chairman of the 5th Respondent replied saying in part “The Commission will act on the aspects of your report that fall within our mandate and revert at the earliest. A separate letter by Deputy Secretary/CEO – Operations of the 5th Respondent under Ref: EACC.7/10/1(12) only said “The Commission has noted the complaint and will verify the allegations to inform appropriate action”. There has been no further correspondence from the 5th Respondent.

A reminder for response by the 1st Respondent to the Applicant/Petitioner was also made on February 10, 2014 and which letter went unanswered by the 1st Respondent, who distinguished himself as possessing a rare knack and consistency for ignoring communication for accountability issues.

Frustrated at the lack of cooperation and continued inaction from the 1st and 5th Respondents, the Applicant/Petitioner wrote to the Commission on Administrative Justice (also known as the Ombudsman Office). Upon requesting the Ombudsman to contact the 1st Respondent and demand, on the Applicant/Petitioner’s behalf, for answers to the January 28, 2014 letter which was never fully answered, the Ombudsman obliged and on March 3, 2014 under Ref: CAJ/M.TRA/004/138/14/RS wrote a 3 page letter to the 1st Respondent and copied the Applicant/Petitioner and the 3rd Respondent. The Ombudsman stated, among other issues, that the 1st Respondent failed to respond to the Applicant/Petitioner’s on allegation regarding one 2nd Respondent’s Board Member called Mr J. Irungu and his alleged bias in awarding unjustified marks to the 4th Respondent as per score sheets presented then.

On March 19, 2014 the Principal Secretary of the 1st Respondent responded to the Ombudsman under Ref: MOT/S/ADM/54 VOL.XII(25) forwarding a copy of the letter of the Chairman of the Board of Directors of the 2nd Respondent to the 1st Respondent dated December 4, 2013 under Ref: KAA/CM/SM/ VOL1(16) in which he had recommended 3 candidates, including the 4th Respondent. But the said letter had this curious observation: “You will note that the scores of the top three candidates range between 69% and 71%. The differences are not statistically significant. Therefore these candidates are equally competent and any of them is capable of delivering the KAA mandate. We believe that moderation of the scores is not mandatory but had this been made there might have been some shift in positions”

What the Chairman of the Board of Directors of the 2nd Respondent did not disclose, and ought to confirm or deny, is that after the said interviews, according to our anonymous informers, majority of the panelists requested for moderation and indeed began the same before the said panelist, a Mr J. Irungu reportedly stormed out of the boardroom saying he had done his job and that his scoring was final. Obviously, if that happened, collective responsibility expected of Board of Directors was missing on the part of the said Mr Irungu.

The other aspect the Chairman of the Directors of the 2nd Respondent did not disclose in the said letter to the 1st Respondent, and ought to confirm or deny, is that his Board of Directors had a challenge accepting the said Mr Irungu’s biased marks and that if objective moderation, which was mandatory given the glaring bias by the said Mr Irungu and stiff competition, the 4th Respondent who purports to be the Managing Director of the 2nd Respondent would not have made it to the last 3 shortlist for the position.

The Ombudsman, on June 25, 2014 wrote a 9-page letter to the Chairman of the Board of Directors of the 2nd Respondent under Ref: CAJ/M.TRA/004/138/14/RS stating his Constitutional mandate; Applicant/Petitioner complaint, its action and investigations; Findings and Recommendations

While the Ombudsman investigations-based findings (after summoning Mr Irungu and other informants) did not entirely agree with the Applicant/Petitioner on all allegations, it did agree on key one headed “Award of Marks by Mr. J. Irungu” at Page 7 of the said letter;

At paragraph 16, the Ombudsman notes thus: The Commission makes the following findings; (a) That the confidential report received at our offices from the Ministry of Transport and Infrastructure matched the unauthenticated copy received from the complainant (Applicant/Petitioner) and suggests that the panelist D.4 was Mr Joseph Irungu; (b) The margin of award of marks by Mr. J.Irungu between his best candidate Ms Lucy Mbugua (239) and his worst candidate Hudson Aluvanze (105) is the highest by one hundred and thirty four (134) marks. This is in our opinion is too big a margin raising suspicion. (c) That Mr J. Irungu awarded the least marks to all the four (4) out of the five (5) candidates that were interviewed; (d) Further, it is noted that the four (4) candidates were awarded extremely low marks in an attempt to deliberately favour Ms Lucy Mbugua (the 4th Respondent). The variance between the best candidate and the four other candidates shows lack of objectivity in the award of marks on the part of Mr Irungu; (e)It is noted that if Mr Joseph Irungu’s computation was to be removed, Ms Lucy Mbugua will move from 1st to 4th position, a clear indication of bias arising from Mr Irungu’s award of marks; (f)By virtue of the above analysis, it is possible to draw inference that Mr Joseph Irungu was biased and indeed advantaged Ms. Lucy Mbugua.

At Paragraph 17, the Ombudsman observes and the Applicant/Petitioner agrees with him that to the extent that the KAA recruitment “… process violated the Constitutional principle enshrined in Art. 232(1)(g) on fair competition and merit as the basis of appointment in the public service”

At Paragraph 18 the Ombudsman report states that the “… conduct of Mr Joseph Irungu, now serving in the Ministry of Interior and Coordination of National Government as the Secretary of Administration and also as alternate Board Member of KAA, amounts to improper conduct, abuse of power and a conduct prejudicial to other interviewees. This is for an officer entrusted with a duty to act fairly and impartially is a breach of Art. 59(2)(h)&(i) of the Constitution.

The 1st Respondent and the Board of Directors of the 2nd Respondent have since ignored the recommendations by the Ombudsman, among others, to relieve Mr Irungu as a Board Member of the 2nd Respondent.

A reminder by the Applicant/Petitioner to the 1st Respondent on August 4, 2014 and copied to the Chairman of the Board of Directors of the 2nd Respondent was still ignored

Vide a letter dated July 28, 2014 under Ref: MOT/S/ADM/54 VOLXIII(61), and in an effort of buying more time of inaction, the 1st Respondent wrote to the 3rd Respondent seeking his opinion on implementation of the Ombudsman letter of June 25, 2014 under Ref: CAJ/M.TRA/004/138/14/RS

A further reminder by the Applicant//Petitioner to the 3rd Respondent on August 7, 2014 to urgently give his opinion has been ignored to date. In the said letter, the 3rd Respondent was reminded of his cardinal duty under Art. 156(6) which requires him to defend, uphold, promote rule of law, the doctrine of constitutionalism and protect public interest.

It did not come by surprise, therefore, for the 3rd Respondent to mislead the public in The Standard newspaper of August 16 (online) and August 17, 2014 that he had not received the letter from the 1st Respondent which letter was copied to the Applicant/Petitioner. Like a politician would say, the 3rd Respondent was quoted as saying “That is news to me. I have not received any letter from Transport CS. It might have first gone to our legal department but be sure I will share with you the exact position”. He has not shared to date. It was also unrealistic for the letter addressed to the Attorney General from a Cabinet colleague, could first go to his “legal department” without his initial comments and or direction.

Bottom line, there has been a sustained dishonesty and a conspiracy of sorts amongst the 1st, 2nd, 3rd, 5th and 6th Respondent to maintain the 4th Respondent in a position that is not hers ethically, morally and legally. 

To this end, the Applicant/Petitioner clearly demonstrates that it has exhausted all means in securing the delayed justice in the matter and that this honourable Court is looked upon as the truly last option in dispensing the much-needed but elusive justice in the matter in question. 

Collectively, the Respondents severely failed the letter and spirit of the Constitution of which applicable aspects stand shamefully defiled, mutilated, abused and in some cases overlooked in the skewed process which made the 4th Respondent a beneficiary of a position she neither deserves nor is qualified to hold even for a single minute. 

Unless the application is urgently heard and determined, the applicants and the people of Kenya will suffer great loss and damage given the central role the Kenya Airports Authority plays in transport and health of Kenyans.

FURTHER READING:

Transport Secretary Eng Michael Kamau refers the implementation of Ombudsman report on recruitment of KAA boss to Attorney General

 

 

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