Cabinet Secretary Ministry of Water, Sanitation & Irrigation & another v Omondi & another; Okello & 2 others (Interested Parties)

the chief executive ocers of Water Works Development Agencies; under the State Corporations Act, the power to appoint a chief executive of a state corporation reposes on the board of the state corporation, and; for diversity to justify fair competition and merit in the appointment to positions of state corporations, there must be demonstrable facts. [2] [3] Drawing from these ndings, the judge ordered as follows: “ (i) A declaration be and is hereby issued that the involvement of the Cabinet Secretary & her decision recommending & directing the Board of the Lake Victoria South Water Works Development Agency to appoint Eng. Boaz Okoth Akello, as the Chief Executive Ocer of the Lake Victoria South Water Works Development Agency, is ultra vires the Water Act, the State Corporations Act & the Mwongozo Code. ii. A declaration be and is hereby issued that the power to appoint the Executive Ocer of the Lake Victoria South Water Works Development Agency is the mandate of the Board of Lake Victoria South Water Works Development Agency. ii. A declaration be and is hereby issued that the appointment of Eng. Boaz Okoth Akello, as the Chief Executive Ocer of Lake Victoria South Water Works Development Agency, is contrary to the law & is hereby invalidated.” The Attorney General (AG) is aggrieved by that decision, intends to challenge it, and has led a Notice of Appeal in accordance with Rule 75 (1) of the Court of Appeal Rules. In the meantime, by a Notice of Motion dated 7th June, 2021, the AG seeks the following orders: “ (i) spent (ii) spent (iii) That this Honourable Court be pleased to grant a stay of execution of the judgment delivered on 26th May, 2021 by Hon. Justice Radido Stephen, MCIArb pending the hearing and determination of the intended appeal. (iv) That this Honourable court be pleased to grant of any further proceedings pursuant to the judgment delivered on 26th May, 2021 by Hon. Radido Stephen, MCIArb pending the hearing and determination of the intended appeal or on such terms as he court may deem just. (v) That this Court be pleased to grant any such orders as may deem t and just to grant; and (vi) That costs of this application be in the cause.” [4] The AG urges us to nd that the appeal is arguable. The AG further argues that execution of the orders issued by the trial court will create a state of aairs that will irreparably aect or negate the very essence of the AG’s case if the appeal were to succeed. In a word, that the applicants’ appeal will be rendered nugatory if stay is not granted. [5] The principles upon which this Court grants or refuses stay of execution under Rule 5 (2) (b) of the Court of Appeal Rules is a well-beaten path. In Githinji https://new.kenyalaw.org/akn/ke/judgment/keca/2022/852/eng@2022-04-28 2

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v. Amrit & Another [2004], for example, this Court noted; “ The principles applicable in an application under Rule 5 (2) (b) of the Court of Appeal Rules are now well settled. The applicant must [rst] demonstrate that he has an arguable appeal which is not frivolous. Secondly, he also needs to show that the result of such appeal, if successful, would be rendered nugatory if the application for stay was refused.” [6] The threshold to be achieved in demonstrating that an appeal is arguable is low. It is that the appeal, although not a trie, must not necessarily succeed. Looking at the draft memorandum of appeal, one is able to identify at least one arguable matter: Can it be said that the recommendation of the Board of Lake Victoria South Water Works Development Agency forwarding three names to the Cabinet Secretary to appoint a chief executive ocer from one of the three is an abdication of the Board’s power to appoint a chief executive ocer? [7] As to the nugatory limb, the applicant makes three arguments: that failure to stay the order will cause the Cabinet Secretary to lose his/her statutory power to appoint or take part in the appointment of the chief executive ocer in the water agency; the implementation of the orders will have a wider bearing in the appointment of chief executive ocers in state agents in other ministries; the decision creates a misleading precedent which shall potentially aect existing appointments and in the end a lot of public funds will be used in the recruitment and appointment processes of the chief executive ocers in all state agencies in the country. [8] We have given this matter due consideration. [9] We start by observing that the orders issued by the trial court, which we have set out elsewhere in this ruling, were specic to the appointment process of the chief executive ocer of the Lake Victoria South Water Works Development Agency and invalidated the appointment of Eng. Boaz Okoth Akello. We are therefore unable to follow the argument that the implementation of the orders will aect or cause confusion in respect to the role or lack thereof of Cabinet Secretaries in the appointment of state corporations falling under their respective ministries. The order is not a general order and another court of concurrent jurisdiction confronted with a similar question could either choose to be persuaded or not by the rationale of the decision. [10] As regards whether to implement an order whose eect is to bar the Cabinet Secretary from making the said appointment will render the intended appeal nugatory, we were not told that prior to the specic attempt to appoint the 1st interested party, the Cabinet Secretary was always involved in past appointments. In the absence of that information, we are unable to say that the appeal will be rendered nugatory if stay is not granted. In the end it seems to us that public interest is better served by not allowing an appointment which a competent court has found to be unlawful from taking eect. In doing so, we take comfort in the information made available to us at plenary hearing by counsel for the applicant that the position of chief executive ocer currently has an occupant in an acting capacity. Technically, the state corporation is not without a head. [11] The Notice of Motion of 7th June 2021 is without merit and is hereby dismissed with costs. DATED AND DELIVERED AT KISUMU THIS 28TH DAY OF APRIL, 2022. P. O. KIAGE ............................................... https://new.kenyalaw.org/akn/ke/judgment/keca/2022/852/eng@2022-04-28 3

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JUDGE OF APPEAL MUMBI NGUGI ............................................... JUDGE OF APPEAL F. TUIYOTT ............................................... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed. DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2022/852/eng@2022-04-28 4

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