Court declines to strike out case challenging ARA director appointment

A court in Nairobi has dealt the Asset Recovery Agency (ARA) director a major blow after dismissing her application to strike out the case challenging her appointment.

At the same time, the Employment and Labour Relations Court Judge Nduma Nderi declined to suspend Brig (Rtd) Alice Mate’s appointment after finding that it would not be in the public interest to issue the orders before a full hearing.

Mate had asked the court to strike out the case filed by the African Institute For Peace & Human Rights (AIPHR) and Charles Maina Kariuki, arguing that there was a separate one filed by the Kenya Human Rights Commission (KHRC) in 2021, which the constitutional court had not settled.

However, Justice Nderi said that Mate did not produce court papers to show similarity in the two cases nor was there evidence that the parties were the same..

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In the case, AIPHR and Maina want the labour court to find that Mate’s appointment by Attorney General (AG) violated the Constitution. They are also seeking a declaration that the Kenyans are entitled to a refund of all salaries, benefits, and any other money paid to Mate from public coffers.

The two sued the AG and the ARA boss. They also asked the court to quash the appointment. In the meantime, they urged the court to suspend her appointment as the case was being heard and determined.

On the other hand, the AG and Mate filed objections arguing that the case was subjudice. According to the two, there was a pending case before a separate court over the same subject.

AIPHR and Maina’s lawyer Lempaa Suyianka argued that it was unclear how the AG appointed Mate. Suyianka stated that he wrote to the AG to find out whether there was an advertisement for the position and to encourage qualified applicants to apply.

According the lawyer, he requested the AG to give the names of shortlisted candidates, their scores, or interviews conducted. He also sought to know if there was a letter recommending Mate’s appointment.

Suyianka said the AG never responded, claiming silence of the government’s legal advisor meant that there was a violation of employment law. “The failure to respond to the above letter allows me to conclude that the said information requested in our letter dated 18th April 2024 does not exist thus, the appointment of the 2nd respondent was unprocedural as it did not adhere to the legal and regulatory framework governing appointment to public office,” he argued.

He asserted that since her appointment in April 2021, Mate continues to discharge her duties, mandate and responsibilities as if she is lawfully in office.

However, the AG and Mate sought to have the case struck out.