The Kenya Pipeline Company (KPC) wants the court to lift recent orders that suspended the appointment of Joe Kimutai Sang as acting Managing Director of the State Corporation.
Through lawyer Eric Gumbo, KPC together with its board of directors said the orders issued by the Employment and Labour Relations Court on February 3, 2023 have left operations of the company in limbo.
“The orders have thrown the Board and KPC into limbo with the result that the proper carrying out of their mandate and crucial operations is in jeopardy,” said Mr Gumbo.
The disputed orders were issued by Justice James Rika following a petition filed by the Law Society of Kenya challenging the board’s decision to reinstate Mr Sang to the position of MD though in acting capacity.
Mr Sang’s return to the office followed his acquittal by the anti-corruption court from an Sh1.9 billion corruption case involving the Kisumu Oil Jetty project.
In urging the Labour Court to vacate the orders that suspended him from office, lawyer Gumbo said “LSK obtained undeserved orders” as Mr Sang was condemned unheard and removed from office.
He said that the orders “have the effect of ousting an entire process of appointment of an acting MD of a public institution on the basis of mischaracterization of facts and without affording KPC and the Board an opportunity of a fair hearing”.
According to the lawyer, the court orders have “far-reaching ramifications” and LSK moved to court after it had requested KPC to provide information related to the appointment of Mr Sang.
According to Mr Gumbo, LSK wrongly invoked the powers of the court as it had not exhausted the process of accessing information.
Since Mr Sang had a running contract with KPC and it crystallized legal obligations to him, Mr Gumbo said the court orders exposed the State Corporation to potential causes of action.
“The board and KPC are forced to engage yet another acting Managing Director on a temporary basis in parallel with a subsisting contract for the appointment of Mr Sang in acting capacity and yet there is an ongoing process for recruitment of a substantive MD through a competitive process,” said Mr Gumbo.
He added that while the court had granted KPC liberty to appoint another acting MD from amongst the current pool of employees holding substantive management positions, the board found “this option unsuitable in the circumstances”.
Mr Sang was initially appointed as the Managing Director of the KPC in April 2016 for a period of three years. On September 25, 2018, prior to the end of his term, he expressed interest to have his term renewed.
The Company Secretary, Flora Okoth, told the court that Mr Sang’s return and appointment as acting MD was allowed by the Cabinet Secretary in charge of the Ministry of Energy and Petroleum and the Attorney-General.
“The Attorney-General responded to the letter from the Chairperson and advised that there was no statutory provision limiting the Board’s mandate to appoint an acting Managing Director from within the KPC or the parent Ministry,” she said in an affidavit.
The Attorney-General further indicated that the Board was not barred from making the appointment outside the KPC if it had not identified a suitable candidate within the organization or the responsible Ministry,” said Ms Okoth.
She stated that the company had on February 6, 2023, advertised for the position of MD in two of the daily newspapers and that Mr Sang was holding the same role in acting capacity pending the recruitment.
The case will be mentioned on March 10, 2023.
