Kenya’s corporate governance framework for state corporations is facing a major constitutional litmus test. This follows a decisive ruling by the Milimani High Court, which issued interim conservatory orders halting the appointment of three independent directors to the board of the Kenya Electricity Transmission Company Limited (KETRACO).
Citizen Digital
+ 1
The petition, filed by civic activist Issa Elanyi Chamao, directly targets Energy and Petroleum Cabinet Secretary Opiyo Wandayi. The legal challenge accuses the Ministry of Energy of actively running an opaque, parallel appointment track that completely short-changed thousands of qualified Kenyan professionals.
Citizen Digital
+ 1
By freezing the appointments, the High Court has opened up a vital legal conversation: Can the executive branch legally ignore its own advertised recruitment criteria to make direct appointments?
The Core Constitutional Arguments Against the Appointments
The legal challenge mounted against Gazette Notice Nos. 8032 and 8033 rests on explicit constitutional infractions. The petitioner argues that the Ministry of Energy treated foundational public service principles as mere suggestions rather than mandatory laws.
Consumers Federation of Kenya (COFEK)
1. The Doctrine of Legitimate Expectation (Article 47)
When the National Treasury published a nationwide advertisement on May 18, 2026, inviting the public to apply for Independent Director roles at KETRACO, it activated a legally binding principle known as Legitimate Expectation.
Consumers Federation of Kenya (COFEK)
Under Article 47 of the Constitution, which guarantees Fair Administrative Action, any qualified citizen who spent time, resources, and effort preparing an application had a legal right to expect:
Consumers Federation of Kenya (COFEK)
Their application would be received and opened.
A transparent shortlisting process would occur.
Interviews would be conducted based on merit.
By publishing the final appointments via the Kenya Gazette on May 29, 2026—at the exact same time applications closed—CS Wandayi rendered the entire public application window a farce. The lawsuit argues that the choices were pre-determined, transforming a constitutional public process into a boardroom prop.
Consumers Federation of Kenya (COFEK)
+ 1
THE TWO PATHWAYS TO THE BOARDROOM
[Constitutional Path] [The Executive Path]
Treasury Public Notice Gazette Notices 8032/3
│ │
▼ ▼
Open Public Competition Closed-Door Selection
│ │
▼ ▼
❌ Bypassed & Ignored ✅ Implemented by CS
│ │
└───────────────────► ⚖️ ◄──────────────────┘
HIGH COURT
(Process Frozen)
2. Violating the Values of Public Service (Article 232)
The petition relies heavily on Article 232 of the Constitution, which governs the values and principles of public service. The law explicitly demands:
Consumers Federation of Kenya (COFEK)
Fair competition and merit as the basis of appointments.
Representation of Kenya’s diverse communities.
Transparency and accountability in administrative decisions.
Direct appointments without an active interview matrix directly clash with these standards. Legal experts argue that allowing this practice to go unchecked would set a dangerous precedent, giving Cabinet Secretaries the power to bypass the Government-Owned Enterprises Boards Search and Selection Panel at will.
Terms of the High Court Injunction
The conservatory orders issued by the High Court are expansive and designed to completely halt the current operational influence of the disputed board.
The Injunction: The immediate implementation of Kenya Gazette Notice Nos. 8032 and 8033 is stayed.
The Restrictions: Mercylinnete Rotich, Janerose Gatwiri, and Nick Ochola are barred from accessing KETRACO boardrooms or conducting any administrative oversight.
The Resolutions Freeze: Any board resolutions or approvals passed in the presence or participation of the three individuals from May 29, 2026, onward are suspended.
Citizen Digital
The High Court directed that all respondents, including the Attorney General, file their responses within seven days of service, ahead of a mention date scheduled for June 24, 2026.
Citizen Digital
Testing the Government-Owned Enterprises Act, 2025
This lawsuit is highly significant because it serves as one of the first major judicial challenges to the Government-Owned Enterprises Act, 2025.
Citizen Digital
Enacted to bring order, financial accountability, and structural discipline to Kenya’s struggling state corporations, Section 10 of the Act took away the absolute, unchecked power of Cabinet Secretaries to handpick board members. Instead, it introduced an independent selection panel designed to vet applicants transparently.
Statutory Framework comparison Past Framework (Pre-2025) Modern Framework (Post-2025 Act)
Selection Method Direct Executive appointment via Gazette Independent Search & Selection Panel vetting
Public Input None (Closed-door selection) Mandatory open public advertisement windows
Judicial Vulnerability High executive discretion Strict compliance with Article 232 values
The KETRACO case will determine whether the Government-Owned Enterprises Act of 2025 holds real statutory power, or if ministries can continue to rely on older, direct-appointment habits.
The Looming Executive Standoff
This boardroom freeze introduces a severe governance challenge for KETRACO’s top leadership. The corporation is currently operating without a substantive Chief Executive Officer and is managing a massive multi-billion-shilling grid expansion portfolio.
With the Consumers Federation of Kenya (COFEK) also filing parallel suits against the board’s “unlawful” Master’s degree requirements for the CEO position, KETRACO’s leadership structure is effectively locked in a legal stalemate.
If the High Court maintains the freeze during the June 24 mention, the Ministry of Energy may be forced to rescind the gazette notices and allow the National Treasury’s competitive panel to complete its work.
Deep Dive and Additional Background
To explore the broader ongoing legal friction regarding public appointments, infrastructure deals, and state agency accountability, view this detailed report on the LSK and Civil Society Petitions on State Governance. The analysis provides vital context on how civic watchdogs are using the courts to enforce transparency across Kenya’s public sectors.
