A letter written to Chief Justice Willy Mutunga on the legality of the Communications Authority of Kenya (CA) board could have been instrumental in the withdrawal of an appeal that sought to overturn a high court judgment that had found seven members of the board were appointed unprocedurally.
The withdrawal set the stage for recruitment of new directors and the CA duly advertised for positions in the Kenya Gazette on February 5.
The seven are Mr Wilbert Choge, Mr Kennedy Nyaundi, Ms Grace Munjuri, Ms Hellen Kinoti, Ms Beatrice Opee, Mr Peter Mutie and Mr Levi Obonyo.
But the directors last week moved to the Employment and Labour Relations Court and were granted orders barring CA and the Ministry of Information and Communication from declaring their seats vacant.
The court also stopped the ongoing recruitment of new directors until the case is heard on February 25.
Mr Kamotho Njenga had in January written a letter to Dr Mutunga citing misgivings on how the appeal was being conducted.
Separately, activist Okiya Omtatah has also moved to court and sued CA, ICT Cabinet Secretary Joe Mucheru, Attorney General Githu Muigai, Airtel Networks Kenya Ltd and Mr Ben Gituku for withdrawing the appeal.
He also wants the authority stopped from proceeding to recruit and appoint new members of the board, and the AG barred from interfering with the independence of the CA.
Further, he wants amendments made to the Kenya Information and Communications Act 2015 to be halted.
Mr Omtatah argues that the directive to disband the team was unconstitutional because it portrays government, political and commercial control.
On Friday, attempts by the sacked directors to force their way into CA offices were thwarted by police.
Mr Kamotho argued that a ruling by the Court of Appeal on July 31 last year had been misinterpreted, allowing the seven to continue staying in office.
He termed this an overturn of the High Court judgment without a substantive hearing.
He also cited inordinate delays to hear the case, which allowed the board — whose term was fast coming to an end — to continue operating without a substantive court judgment backing them.
The case did not proceed as the Registrar of the Court of Appeal kept on moving the hearing dates.
Mr Kamotho told the CJ that despite the court registry having initially indicated that the appeal by CA would be heard by three judges, among them Justice Festus Azangalala, he was shocked to learn that Lady Justice Jamila Mohamed had replaced Justice Azangalala without notice.
“It occurred as very strange when J. Mohamed, JA sat in the appellate bench, knowing very well that she is the immediate former managing partner of (Mohammed & Kinyanjui Advocates), the law firm on record for the applicant (Communications Authority of Kenya). Thus, from the onset, the integrity and impartiality of the appellate court proceedings was tremendously cast to doubt,” he said.
He further informed the CJ that when he filed contempt proceedings against CA for allowing the board members to serve despite the Court of Appeal proceedings, “My counsel was subjected to a barrage of interjections and veiled remarks, pointing towards the insignificance of the application.”
The Chief Justice did not reply.
The genesis of the protracted case was October 24, 2014 when Mr Kamotho moved to the High Court seeking to quash a Kenya Gazette notice by the Minister for Communications appointing the seven board members, for not following the right procedure.
Mr Kamotho argued that a selection panel had not been formed by the minister.
Justice George Odunga heard the case and, in May 2015, ruled that the law was not followed.
Aggrieved by the judgment, the Communications Authority of Kenya moved to the Court of Appeal.
On July 31, 2015, judges Erastus Githinji, Jamila Mohammed and Sankale ole Kantai gave temporary orders suspending the “stay of execution of the order of the High Court dated May 29, 2015, pending appeal as prayed for.”