The Employment and Labour Relations Court has suspended recruitment of an Auditor-General pending determination of a case filed by activist Okiya Omtatah.
The position of the Auditor-General is currently vacant as Mr Edward Ouko's term expired in August 2019.
There was a recruitment last year but the selection panel could not nominate three people for appointment by the President, saying none qualified.
Following this report, the Public Service Commission (PSC) said the government decided to re-advertise the vacancy.
Mr Omtatah then sued the panel, noting it reported that candidates met technical requirements including academic qualifications, but scored poorly in tests for independence, diplomacy and tact, which were key considerations.
The activist argues that where persons meet eligibility thresholds set in the Constitution and in law, the selection panel does not have the power to decline to select three candidates from those it interviewed and forward their names to President Uhuru Kenyatta.
Mr Omtatah further argues that the panel’s decision to cancel the recruitment was unlawful and ultra vires (beyond one's legal power), since neither the President nor the panel has any inherent powers beyond what is stated in law.
“The decision to re-advertise the vacancy in the position of Auditor-General is unconstitutional and, therefore, invalid, null and void,” he said.
Justice Stephen Radido's ruling on Friday temporarily blocked re-advertisement of the post, whose vacancy was first announced last December.
He issued the order in the case in which Mr Omtatah sued the selection panel for the appointment of the Auditor-General and the Attorney General besides the President.
“Pending the inter-partes hearing and determination of this case, the court hereby issues an interim order prohibiting the sued parties and their agents, howsoever acting, from giving effect to the advert, howsoever published, re-advertising the vacancy in the office of the Auditor-General and asking qualified and interested persons to apply ...,” the judge said.
In filed case documents, Mr Omtatah also notes that the selection panel is confined to selecting, based on the scores it assigns to each candidate, at least three top candidates who meet criteria expressly set out in law, and forwarding their names to the President.
He also argues that the attributes on extraneous considerations cited can only give one an added advantage where they are considered necessary, but cannot be held as an absolute bar against any person who qualifies, in line with requirements in the Constitution the law.
Mr Omtatah further expressed fear that the second recruitment will likely result in persons not among the successful candidates and that the court will not be able to reverse the decisions or compensate the public for monies spent.
As of November 2019, President Uhuru Kenyatta had not yet named the chief auditor even though a shortlist of three candidates had already been presented to State House.
When he exited office, Mr Ouko warned that all unsigned audit reports would have to await appointment of his successor, if the documents have to be legally binding.
Acting Treasury Secretary Ukur Yatani, in a letter to National Assembly Speaker Justin Muturi, cited the vacancy in the national audit office as the reason why Central Bank failed to submit certified financial statements for the year 2018/2019.
Other firms affected include the Nairobi Securities Exchange, the Capital Markets Authority, the Ethics and Anti-Corruption Commission, Kenya Power, KenGen and East African Portland Cement Company.