The appointment of Anthony Mwaura as the Kenya Revenue Authority (KRA) chairperson when he was facing corruption and economic crimes charges was illegal, the High Court has ruled.
Justice Francis Gikonyo on Monday ruled that President William Ruto’s decision to appoint Mr Mwaura on November 18, 2022 ‘suffered procedural infirmity and illegality’.
The judge further said his acquittal long after his appointment does not cure the fact that the move was illegal from the start.
In a gazette notice dated November 18, 2022, President Ruto appointed Mr 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.
“The appointment herein suffers procedural 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 actual process,” Justice Gikonyo said.
Mr Mwaura replaced Francis Muthaura who was appointed by retired President Uhuru Kenyatta in October 2019.
His appointment was challenged by Nakuru-based surgeon Dr Magare 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.
Dr Gikenyi said the appointment was irregular and therefore null and void.
Mr 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 also argued that he has diligently executed his duties, which has resulted in massive improvement in tax collection.
Soon after his appointment, Mr Mwaura appeared to play both the role of the chief executive officer and chairman — akin to an executive chairman in private companies.
His appointment to the KRA board leadership is attributed to his loyalty to the President who rewarded many individuals who stuck with him during the campaign with plum jobs in government.
He had previously served as the chairman of the elections board of the President's United Democratic Alliance (UDA) party.
Mr Mwaura submitted that there is no evidence that Dr Ruto was not aware that he was facing the charges when he appointed him as the chairperson of KRA.
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.
Mr Mwaura argued that the corruption case was politically motivated but the judge dismissed the submission stating that it was neither here nor there.
Justice Gikonyo added that courts would be setting dangerous precedence where the appointing authorities make illegal appointments and later find ways of sanitising the same.
“Such a move will also make the court party to the sanitisation of such illegalities. It is worth repeating that attornment for an illegality is the removal of the illegality by judicial remedy,” the judge said.
