The High Court on Thursday ordered the immediate reinstatement of Bomas of Kenya CEO Peter Koria who was suspended in November 2023 pending hearing of his case challenging his removal from office.
Koria had been suspended from his position following a recommendation by the Ethics and Anti- Corruption Commission (EACC) and subsequent action by the Ministry of Gender, Culture, Arts and Heritage.
Justice Nduma Nderi noted that the suspension, being disciplinary in nature ought to have been initiated by the Board of Bomas of Kenya (BOK) before the action taken by the Cabinet Secretary.
Additionally, the court said the self-set timelines for the conclusion of investigations against Koria had surpassed their anticipated completion date.
“The court has observed the self-set timelines by the board of BOK for the conclusion of the investigations against the applicant as deposed to by the chairperson to have been finalization of the investigation report by the end of February 2024 and possible lifting of the suspension by March 2024,” the Judge said.
“A mandatory injunction is granted directing the 1st and 5th respondents to unconditionally lift the suspension of the applicant/petitioner from employment communicated vide a letter dated November 20, 2023 and order for his immediate reinstatement, pending the hearing and determination of the petition.”
The judge also acknowledged the importance of protecting the rights and fundamental freedoms of the applicant while considering the public interest.
Furthermore he said, no criminal charges have been leveled against Koria.
Koria moved to court on November 21, 2023 after EACC recommended that Aisha Jumwa CS gender suspend him pending investigations into allegations of “procurement irregularity in the award of a tender for the supply of cutlery awarded to various companies where CEO Peter Gitaa Koria has been adversely mentioned since he oversaw the execution of the contract.’’
EACC claimed that his continued being in the office will interfere with the smooth provision of documents and facilitation of persons who might be called upon as witnesses by the commission.
Subsequently, he was suspended with half pay and allowances by a letter dated November 20, 2023 and a press release to that effect was issued by the State House spokesperson.
In the application Koria says the suspension was done without due regard to process and procedures laid down in law in that “he was not accorded an opportunity to be heard thereby violating the principle of audi alteram partem”
Audi alteram partem means “listening to the other side”, or “let the other side be heard as well”.
It is the principle that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them.
He urged the court to unconditionally lift his suspension from employment and order for his immediate reinstatement.
“In the interim and pending the hearing and determination of this application and petition, this honourable court do make an order of injunction restraining the respondents either by themselves, employees, servants and/or agents from terminating the employment of the applicant/petitioner based on the illegal suspension.”
Koria also accused CS ministry of gender for not involving the Chairperson Board Bomas of Kenya in the process so as to get a comprehensive report of the situation.
“…. A public state officer may only be suspended if charged before a court of law which is not the case and the 1st and 2nd respondents are involved in a witch hunt to frustrate the applicant,” the court papers said.
On their part, the respondents argued that the application had already been overtaken by events since the board meeting had already taken place
They said the court “cannot issue conservatory orders for events that have already taken place.”
“.The instant application is an abuse of the court process with a view of circumventing the impending investigations.”.
The chairperson BOK said if granted interim orders Koria would hinder the Board’s investigations and risk interference.
They said they established an Ad-hoc Committee to investigate EACC allegations against the applicant, and that they had already conducted five meetings between December 13, 2024 and January 16, 2024 and interviewed staff members.
Despite invitations, they alleged, the applicant declined to participate.
“Subject to the constitution and any regulations for the enforcement of the code made under section 42 of leadership and integrity act, a state officer may be suspended from office pending the investigation and determination of allegation made against the state officer where such suspension is considered necessary.” argued the Public Service Commission.
In the petition cabinet secretary, ministry of gender, culture, arts and heritage, EACC, chief of staff and head of public service, Office of the President, chairperson, board of Bomas of Kenya, PSC and Attorney General have been sued.
The ruling is a blow to EACC who had hoped it would set a precedent.
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