Court dismisses petition challenging Ketraco directors’ appointment

By  Joseph Wangui

Correspondent

Nation Media Group

What you need to know:

• The dispute began when the National Treasury advertised independent-director vacancies on May 18, 2026.
• The legal dispute turned on whether the new law -Government-Owned Enterprises Act, 2025 -governed Ketraco.

The High Court in Nairobi has dismissed a petition challenging appointment of three directors at 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 Ketraco.

The dispute began when the National Treasury advertised independent-director vacancies on May 18, 2026, inviting applications for several state-owned enterprises, including Ketraco.

The deadline was May 29, the day Energy and Petroleum Cabinet Secretary Opiyo Wandayi gazetted Mercylinnete Rotich, Janerose Gatwiri and Nick Ochola as Ketraco Board members for three-year term.

The petitioners, Issa Elanyi Chamao, Patrick Karani Ekirapa and Paul Ngweywo Kirui, argued that the appointments happened before the close of the recruitment process. 

They sought to quash gazette notices on the appointments and compel the Treasury and the a government panel for hiring directors to complete recruitment.

However, the legal dispute turned on whether the new law -Government-Owned Enterprises Act, 2025 -governed Ketraco. The company said it remained subject to the State Corporations Act and its Articles of Association. 

The court heard that the Treasury advertised Ketraco jobs under an inapplicable law. Ketraco argued that the Government-Owned Enterprises Act, 2025, 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.

It said its board appointments were instead governed by the State Corporations Act and the company’s own Articles of Association, which set out how it is run and how directors are appointed. 

Ketraco relied on paragraph 3(e) of those Articles to justify the appointments, arguing that the Energy Cabinet Secretary had acted under the rules applicable to the company, rather than the new law.

Alleged breaches to the 2025 Act

The court had earlier ruled that the Act did not apply. The petitioners accepted that finding in later submissions but argued the Treasury advertisement had independently created a constitutional duty to complete or cancel recruitment.

In the judgment dated October 15, Justice Mburu said public appointments remained subject to constitutional scrutiny, even where a particular statute did not apply.

But he found the new argument materially different from the original case, which tied the alleged breaches to the 2025 Act.

“Submissions are intended to persuade the court upon the facts and issues placed before it by the pleadings and evidence. They are not themselves pleadings and cannot ordinarily supply a cause of action which was never pleaded,” the court said.

The court said the petitioners could have amended their case after the earlier ruling but had not done so. 

“I... find that the petitioners are bound by their pleadings and cannot reconstruct the petition through submissions after conceding the inapplicability of the statutory regime upon which the petition was substantially founded.” 

The judge found 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 noted that none had shown they applied for the advertised positions or were excluded from consideration.

Ketraco told 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 argued that appointments made while the advertised process remained open undermined transparency, accountability and fair competition.

The case also exposed a gap between the Treasury’s advertisement and the legal framework governing Ketraco. The judge rejected the petitioners’ invitation to treat the company’s omission from the Act’s schedules as a drafting error.

“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,” he said.

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