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The Court of Appeal has certified as urgent a lawsuit challenging the decision by the Labour court to declare Ezekiel Owour Otieno the new substantive Export Processing Zone (EPZ) Chief Executive officer.

Justice Abida Ali-Aroni allowed a request by the board of EPZ Authority to have their appeal heard on a priority basis as there is a likelihood for the authority board being cited for contempt of court for failure of the Trade and Industrialisation Cabinet Secretary Moses Kuria to gazette Otieno as substantive boss.

Pending hearing

The appellate court’s decision to certify the matter as urgent came hours after the High Court judge Thande Mugure extended orders barring Kuria from gazetting Otieno as the CEO of the Authority pending the hearing of three petitions lodged at the constitution and Human Right Division.

Justice Thande extended the orders after consolidating three cases challenging the Otieno’s gazettement as CEO of the Export Processing Zones Authority.

The judge merged the three suits by Isack Guyo, Willies Oloo and Duncan Odero after the Attorney General and CS industrialisation through state counsel Emmanuel Bitta informed the court that the same cases are similar and should be heard together.

“If the court is of the view that the matters raise similar issues, then nothing hinders the court from doing so,” Bitta said.

Thande subsequently proceeded to rule that “In the interest of expediting this matter, I do suo moto (on the court’s own motion) consolidate the three petitions.”

In the Court of Appeal case, the Board of EPZA wants the court to overturn the Labour Court’s decision that declared Otieno as the new boss of the state agency.

The board claims Justice James Rika on February 28, erred in directing CS Kuria to gazette Otieno as the new CEO of authority.

The Board had moved to the Court of Appeal after Justice Rika declined to overturn the court’s judgment dated July 29,2022 that held that Otieno was the legally appointed CEO of EPZA.

While declining the request for review of the judgment, Justice Rika noted the agency board and the Trade CS did not place before him satisfactory reasons to warrant the court set aside its earlier decision that upheld Otieno’s appointment and revoked the reappointment of Henry Obino as the acting CEO of EPZ.

Competitively recruited

“ The court cannot undo its judgement, or undo the appointment of Otieno as the CEO, EPZA. The court was satisfied, as it is today, that the recruitment of Otieno as the CEO EPZA, was carried out in accordance with the law, “ Justice Rika ruled

The judge stated that Otieno was competitively recruited, and meritocracy in public service, under Article 232 of the constitution, demands that the job be given to him.

“This court does not see why Otieno should be denied the job, having applied for the job, shortlisted, interviewed and emerged at the top, “ Justice Rika ruled.

Further, the judge disputed Kuria’s arguments that there were anomalies in the recruitment of the CEO, noting that the Board which gave the recommendations to appoint the Otieno as the CEO was quorate, with 12 to 13 members present and there is no compelling reasons tabled before court to suggest any member was conflicted.

The court observed that EPZA has been without a substantive CEO from 2018 which can be attributed to vested interests.

“The Board EPZA has not satisfied the requirements of rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016, in seeking to invoke the review jurisdiction of this court, “ Justice Rika said.