BY SAM ALFAN.
The operations at the Business Premises and Rent Tribunal has been thrown into limbo after an Employment court judge quashed the appointment of five members appointed to handle cases before it.
Justice Maureen Onyango quashed the appointments stating that the selection by the CS Industrialisation in June, was not subjected to an open, merit-based, inclusive and competitive process.
Those appointed as tribunal members are Cyprian Ngutari, Patricia Chepkurui, Kyalo Mbobu, Andrew Mutuma and Chege Gakuhi by the Industrialisation,Trade and Enterprise CS Betty Maina and ordered fresh appointments.
In her judgement, Justice Maureen Onyango said the appointments were discriminatory and against the constitution because of the five, only one woman was picked as a member.
The Judge further ruled that the members of a tribunal are judicial officers pursuant to the Constitution and the only body which has the power to appoint judicial officers is the Judicial Service Commission. Therefore, the Cabinet Secretary arrogated upon herself the powers she does not possess.
The Judge said there is no evidence that there was a competitive process that would enable public participation in the process and show transparency and accountability.
“The nomination of the five Interested Parties was discriminatory and lacked the transparency and openness necessary to uphold the rule of law and promote fair administrative action,” the Judge said.
An orgainsation, Kenya Property Investors Association challenged the appointments of Cyprian Mugambi Ngutari (chairperson), Patricia May Chepkirui, Kyalo Mbobu, Andrew Muma and Chege Charles Gakuhi as members of the Tribunal.
The Tribunal handles disputes between landlords and tenants (shops, hotels and catering establishments) and determine a range of issues such as whether or not any tenancy is a controlled tenancy, determine or vary the rent payable in respect of any controlled tenancy.
A report released early this year by the Judiciary showed that there were close to 10,000 cases filed before the Tribunal by the end of last year.
In the petition, the Association said the appointees were not subjected to fair competition and merit and the process failed to afford adequate and equal opportunities to Kenyans who are eligible.
The organization argued that after the expiry of the previous members, the Ministry was required to notify the public and afford them an opportunity to apply.
In reply, the government said that the Act governing the Tribunal does not provide for qualifications of the members of the Tribunal nor does it prescribe the process.
The court heard that the CS formulated the recruitment process internally by asking some 11 lawyers to submit the CVs. The government submitted that the exercise commenced with the decision to appoint five members with the minimum qualifications of being advocates of over 10 years and drawn from different geographical regions in Kenya and from different ethnic groups in Kenya.
“There must be an announcement of a vacancy and a statement of the minimum qualifications, followed by shortlisting and interviews,” the Judge said.
