Turbulence at Ketraco as search for CEO, new board takes shape

Engineer Antony Wamukota. [Courtesy]

Ketraco is facing a major leadership transition as the contract of the Acting Managing Director and CEO Kipkemoi Kibias and the terms of several board members near expiry amid an ongoing search for a substantive Managing Director and Chief Executive Officer.

With nearly half the board expiring in three weeks, the race to recruit a new chief executive has intensified. Applications for the position close today, June 2.

Eng Antony Wamukota, a long-serving and influential figure within the State corporation, previously served as Acting Managing Director following the departure of former chief executive Fernandes Barasa. He is among the candidates understood to have applied for the position.

Other leading contenders include Eng Kibias, Eng Justin Muna, the Acting General Manager for Design and Construction, a key department responsible for major infrastructure projects; and Eng Samson Akuto, the Acting General Manager for System Operations and Power Management.

The recruitment process, however, is facing a legal challenge after the Consumer Federation of Kenya (Cofek) filed a petition seeking to halt the exercise.

Cofek accuses the Ketraco board of introducing qualifications in the vacancy notice that allegedly exceed those prescribed under the Government Owned Enterprises Act, thereby locking out otherwise qualified candidates.

According to the petition, the law requires applicants to possess a degree from a recognised university, at least 10 years' relevant experience, five years in senior management and compliance with Chapter Six of the Constitution.

Cofek further argues that Ketraco's advertisement introduced additional requirements, including a master's degree, at least 15 years' experience, membership of a professional body, leadership certification and a valid practising licence.

The lobby group is seeking conservatory orders suspending the recruitment process pending the determination of the case.

"KETRACO’s board introduced additional academic and professional requirements that are not provided for under the law governing state corporations, thereby unfairly locking out qualified applicants from the race.

"The Government Owned Enterprises Act only requires a candidate seeking appointment as head of a state corporation to possess a relevant university degree, at least 10 years’ experience in a related field, five years in senior management and compliance with Chapter Six of the Constitution on leadership and integrity."

“In the absence of immediate intervention by this Honourable Court, the impugned process is likely to crystallise into an appointment made under a recruitment architecture that is prima facie inconsistent with statute and constitutionally tainted,” COFEK Secretary-General Stephen Mutoro says in an affidavit filed in court.

Wamukota's tenure as acting chief executive previously came under judicial scrutiny in a dispute over a multi-billion-shilling data centre tender.

In a judgment delivered by Justice A.K. Ndungu, the court found that Wamukota's conduct in the procurement process was characterised by what the judge described as "mala fides" (bad faith) and amounted to a "fraudulent act" intended to frustrate the only remaining bidder in the tender process.

"From the material presented before the Board, it is quite clear that the second respondent (the accounting officer, Ketraco) acted mala fide in the subject procurement process. Such conduct must be deprecated and must not be left unchecked. The Public Procurement Regulatory Authority must in such circumstances, flex its legal muscle to monitor and enforce standards in public procurement and to weed out malfeasance in the processes," Justice Ndungu ruled.

"It must be borne in mind that any conduct that tends to defeat a fair, equitable, transparent, competitive and cost-effective public procurement process is an attempt to overthrow the constitutional order espoused in Article 227(1) of the Constitution. Any officer responsible for such conduct risks sanctions, including but not limited to a declaration that they are unfit to hold public office."

The judge stated that the actions attributed to Wamukota, who was serving as the accounting officer and acting CEO at the time, were inconsistent with the constitutional principles governing public procurement.

The case centred on Tender No. KETRACO-ST-009-2021 for the design, construction and commercial operation of a Tier IV Data Centre under a revenue-sharing model. Five firms initially bid for the project, but only Rentco Africa Limited and its partners — China Mobile Limited, China Communication Services and ixAfrica Data Centre — remained after the evaluation process.

Justice Ndungu found that the termination of the procurement proceedings failed to meet legal requirements and held that the procuring entity had acted unlawfully.

After the procurement process was terminated, Rentco successfully challenged decisions made by the Public Procurement Administrative Review Board (PPARB). Justice Ndungu quashed the Board's decision and directed it to extend the tender validity period.

The court further declared that Ketraco's failure to conclude the due diligence process and award the contract constituted an abuse of the procurement process and contravened Article 227 of the Constitution and the Public Procurement and Asset Disposal Act.

An attempt to challenge the judgment at the Court of Appeal was unsuccessful after Justices Daniel Musinga, K.I. Laibuta and Mwaniki Gachoka struck out the appeal as incompetent.

Wamukota was also among the public officials suspended in a corruption crackdown announced on November 16, 2023, when Head of Public Service Felix Koskei directed the suspension of 74 public officers following recommendations from the Ethics and Anti-Corruption Commission (EACC).

At the time, Wamukota was serving as Ketraco's General Manager for Design and Construction.

He subsequently moved to the Employment and Labour Relations Court (ELRC), arguing that he had been condemned unheard and contending that he had obtained court orders barring the investigations.

Through his lawyer, Moses Sikuta, Wamukota argued that the Ketraco board had flouted the corporation's human resource procedures by suspending him without first allowing him to respond to the allegations.

Sikuta further argued that the ELRC had jurisdiction to hear the dispute and challenged the validity of the suspension letter, noting that while the board met on November 15, the suspension letter was dated November 23.

He also told the court that Ketraco's disciplinary committee had neither met nor summoned Wamukota before the suspension and accused the board of acting at the behest of the EACC.

The lawyer further alleged that the anti-graft agency had written to Ketraco demanding Wamukota's suspension for 12 months to facilitate investigations into the Sh18 billion Loiyangalani-Suswa Transmission Interconnection II project.

However, both Ketraco and the EACC opposed the application.

Ketraco's lawyer, Patrick Lutta, told the court that there was no disciplinary dispute between the corporation and Wamukota and argued that the suspension was purely intended to facilitate investigations.

Lutta further argued that Wamukota had failed to exhaust the corporation's internal dispute-resolution mechanisms and maintained that he would be reinstated once investigations were concluded.

The EACC supported Ketraco's position, arguing that the suspension was necessary to facilitate investigations into allegations relating to the Loiyangalani-Suswa Transmission Interconnection II project and electricity tariff reviews.

The commission told the court that Wamukota was aware he was under investigation and maintained that the allegations being investigated were serious and of significant public interest.

The court, however, ordered his reinstatement on the grounds that he was not heard.