The court has dismissed a case opposing the extension of commissioner-general John Njiraini’s term by one year. According to Justice Nelson Abuodha, Mr Njiraini was appointed on a fixed-term contract which is in line with Section 80(2) of the Public Service Commission Act. He also said the Act allows public officials who have reached the mandatory retirement age to work on a fixed-term contract.
“Fixed term contract employees are not pensionable hence not subject to the 60-year retirement age rule. Such persons’ contracts are governed by their instruments of appointment,” he said.
Activist Okiya Omtatah went to court last year accusing the KRA board of failing to send Mr Njiraini on compulsory leave six months to his retirement.
In his argument, the activist said the KRA board of directors and CS Henry Rotich should have sent Mr Njiraini on leave and appointed an acting commissioner-general.
The head of public service Joseph Kinyua, through a circular dated 27 February this year, permitted top public officials to serve beyond the retirement age of 60. According to the circular, CEOs can now work for over two terms.
Circulars cannot be Used to Bar Government Decisions
During his ruling, Justice Abuodha said the circulars and Mwongozo used by Mr Omtatah to oppose the extension are policy documents the government issues whenever needed to harmonise or explain the deviation from an existing policy.
“They, however, cannot be used to bar or prevent a strategic decision of the government,” he said adding that the finance CS has the power to control performance and KRA’s strategic directions including appointment and retention of employees so that it can carry out its mandated roles.
In addition, Justice Abuodha said that although the government should operate on predictable policy, it can deviate from these policies if they are backed by reasonable explanations and if by so doing the Constitution is not breached.
