Kenya Revenue Authority (KRA) Board Chairman Anthony Mwaura has suffered a major blow after the High Court declared his appointment by President William Ruto illegal and unconstitutional.
Justice Francis Gikonyo quashed his appointment by President Ruto in November 2022 stating that it was contrary to the law and the leadership and integrity provisions in Chapter Six of the Constitution.
The judge faulted President Ruto for failing to take into account that at the time of his appointment, Mwaura was facing Sh357 million graft charges and forfeiture proceedings of proceeds of crime in court.
"This court finds that the President failed to take into account at the time of Mwaura's appointment on November 18, 2022, that he was facing corruption and economic crimes charges in Milimani Chief Magistrate Anti-Corruption case number 32 of 2019 and forfeiture proceedings in the High court. Therefore l find the appointment was irregular and illegal for breaching the law and the constitution," Gikonyo ruled.
In his decision, the Judge concurred with the petitioner a Nakuru-based doctor Magare Gikenyi that the decision by the Head of State to appoint Mwaura when his integrity was tainted suffered procedural infirmity and illegality.
"The appointment herein sufferers infirmity and illegality as relevant material and vital aspects having annexures to the constitutional and legislative purpose of integrity were not taken into account in the process, " Justice Gikonyo said.
While revoking the appointment, the judge noted that the national values and integrity were not adhered to while appointing Mwaura, adding that it was inconsistent with the constitution.
"An order of certiorari is hereby issued quashing the appointment of Mwaura as the chairperson of the board of directors of KRA," Justice Gikonyo ruled.
Further, the judge said that Mwaura's acquittal of the graft long after his appointment does not cure the fact that process of his appointment by the President was illegal from the start.
"His appointment while the cases were pending is a problem it constitutes a breach of law in his appointment. If the court allows this to continue it will set a dangerous precedent where appointing authority commits illegality and later finds ways of sanitizing them. Such a cause will make the court part of the sanitization of illegalities," judge Gikonyo stated.
Similarly, the judge dismissed Mwaura’s argument that nothing prevented his appointment at the time, saying it is not defensible. However, the judge said that the national values and principles of governance in Article 10 in leadership are of real value in governance.
“Criminal charges including corruption and economic crimes against a person are relevant considerations on testing integrity, the conviction of an offence is also yet another material for testing integrity . Failure to disclose conflict of interest is a matter relevant related in the office you hold or to be appointed to is also relevant material in testing integrity,” he noted.
He said petitioner Gikenyi’s argument to support the claim that the appointment of Mwaura was inconsistent with the law is not misplaced.
“The country should embark on building culture on national values and leadership based on national values and integrity and principle,” Justice Gikonyo noted.
In a gazette notice dated November 18, 2022, President Ruto appointed Mwaura as the chairperson of the KRA Board, while the rest of the board members were to be appointed by then Treasury Cabinet Secretary Njuguna Ndung'u.
Mwaura replaced Francis Muthaura who was appointed by retired President Uhuru Kenyatta in October 2019.
His appointment was challenged by Gikenyi who argued that he was facing corruption and economic crimes charges as well as forfeiture of proceeds of crime when he was appointed the KRA chairperson.
Gikenyi said the appointment was irregular and therefore null and void.
Mwaura defended his appointment stating that it was done strictly in line with the procedures and the law as the President exercised the powers granted to him by the KRA Act.
He further argued that the appointment did not violate any single provision of the law and the mere fact that a person was facing a charge does render him unfit to enjoy his or her rights and fundamental freedoms under the Constitution, unless limited by the law.
He maintained he has diligently executed his duties, which has resulted in massive improvement in tax collection.
Mwaura submitted that there is no evidence that Dr Ruto was not aware that he was facing the charges when he appointed him to the position.
The judge termed the argument as "quite unfortunate and arrogant" and an indictment of insensitivity towards significance and the place of national values, leadership and integrity as stated in the Constitution.
Mwaura claimed the corruption case was politically motivated but Justice Gikonyo dismissed the submission stating that it lacked merit.
