High Court Dismisses Petition Against Ketraco Directors Appointment
The High Court in Nairobi has dismissed a petition challenging the appointment of three directors to the board of Kenya Electricity Transmission Company Limited (Ketraco). Justice David Mburu ruled that the petition could not succeed after the challengers accepted that the Government-Owned Enterprises Act, 2025, did not apply to the company.
The dispute began when the National Treasury advertised vacancies for independent directors on May 18, 2026. The advertisement invited applications for several state-owned enterprises, including Ketraco. The deadline for applications was May 29, 2026. On the same day, Energy and Petroleum Cabinet Secretary Opiyo Wandayi gazetted Mercylinnete Rotich, Janerose Gatwiri and Nick Ochola as members of the Ketraco board for three-year terms.
The petitioners, Issa Elanyi Chamao, Patrick Karani Ekirapa and Paul Ngweywo Kirui, argued that the appointments were made before the recruitment process had closed. They sought orders to quash the gazette notices containing the appointments and to compel the National Treasury and the relevant government panel for hiring directors to complete the recruitment process.
The core legal question was whether the Government-Owned Enterprises Act, 2025, governed Ketraco. The company maintained that it remained subject to the State Corporations Act and its own Articles of Association. Ketraco argued that the 2025 Act, which sets rules for appointing directors to specified state-owned businesses, did not cover the company because it was not listed in either of the law’s schedules. The company stated that its board appointments were instead governed by the State Corporations Act and its Articles of Association, which outline how the company is managed and how directors are appointed. Ketraco relied on paragraph 3(e) of those Articles to justify the appointments, contending that the Energy Cabinet Secretary had acted under the rules applicable to the company rather than the new law.
The court had earlier ruled that the 2025 Act did not apply to Ketraco. The petitioners accepted that finding in later submissions but argued that the Treasury advertisement had independently created a constitutional duty to complete or cancel the recruitment process. In the judgment dated October 15, Justice Mburu stated that public appointments remain subject to constitutional scrutiny even where a particular statute does not apply. However, he found that the new argument was materially different from the original case, which had tied the alleged breaches to the 2025 Act.
The court held that submissions are intended to persuade the court on the facts and issues raised in the pleadings and evidence. They are not themselves pleadings and cannot ordinarily introduce a cause of action that was never pleaded. Justice Mburu noted that the petitioners could have amended their case after the earlier ruling but had not done so. He found that the petitioners were bound by their pleadings and could not reconstruct the petition through submissions after conceding that the statutory regime on which the petition was substantially founded did not apply.
The judge further found that the petitioners had not provided sufficient evidence of independent breaches of constitutional provisions on governance, equality, fair administrative action, leadership and public service. The court observed that none of the petitioners had shown that they applied for the advertised positions or that they were excluded from consideration.
Ketraco informed the court that interim restrictions on the appointees impaired the board’s ability to approve budgets, oversee transmission projects, authorise payments and perform its duties. The petitioners maintained that appointments made while the advertised process remained open undermined transparency, accountability and fair competition.
The case also highlighted a gap between the National Treasury’s advertisement and the legal framework governing Ketraco. The judge rejected the petitioners’ invitation to treat the company’s omission from the schedules of the 2025 Act as a drafting error. He stated that the court cannot proceed on the assumption that the omission of an entity from a statutory schedule was inadvertent merely because its inclusion might appear desirable, logical or consistent with a particular policy objective.
The petition was accordingly dismissed.