A petition seeking the ouster of the Energy and Petroleum Regulatory Authority (EPRA) Director General Daniel Kiptoo Bargoria has been filed in court following a report by the Auditor General saying his recruitment and appointment process was flawed and he is unqualified to hold office.
Through a petition filed by human rights crusader Francis Awino before the High Court, the petitioner is seeking orders to declare Kiptoo’s appointment null and void.
The petitioner also wants the Public Service Commission (PSC) to conduct fresh interview for the DG post and that a permanent order be issued barring the DG from taking any further management of EPRA affairs for gross misconduct and violation of the constitution.
The suit against EPRA boss comes days after the Employment and Labour Relations Court quashed the appointment of Kenya Rural Roads Authority (KeRRA) Director General Engineer Philemon Kandie’s appointment over irregular recruitment process.
In her report, the Auditor General Nancy Gathungu said Kiptoo is not qualified to hold the office in substantive position.
The Auditor General said that the decision by the EPRA board is against the Code of Governance for state corporations (Mwongozo).
Gathungu said Kiptoo was confirmed as the DG without the requisite qualifications and therefore his appointment was irregularly done.
“A review of the applicant’s documents confirmed that the person lacked the requisite management experience at senior level for appointment as DG. The regularity and suitability in the appointment of the DG was a breach of law.” The report says in part.
It emerged that Kiptoo sat in the board deliberating and making decision of a process he would take part in and neither the board nor Kiptoo made full disclosure on the matter thus raising issues of undisclosed possible conflict of interest.
Section 1.16 (b) of the Mwongozo code requires that a board member discloses all real or perceived conflicts of interest and manage such conflicts of interest within an agreed framework.
Gathungu cited that EPRA board chaired by retired Judge Jackton Ojwang in consultation with the then Energy Cabinet Secretary Charles Keter erred in appointing Kiptoo as the substantive DG on July 1, 2021 after serving in an acting capacity since December 2020.
Section 13 (1) of the Energy Act stipulates that the board shall subject to the approval of the Cabinet Secretary, appoint a DG who shall be the CEO of the authority.
Section 13 (3) (c) (d) of the law says a person shall be qualified for appointment as DG if the person has at least seven years of management experience at a senior level and at least two years of experience in petroleum and energy sector.
According to the minutes and internal records seen by The Informer Media Group, DG’s post was declared vacant on March 31, 2021 and subsequently advertised on April 27, 2021 following the interdiction of Pavel Oimeke over corruption allegations.
Consequently, an 83rd special meeting of the board held on May 20, 2021 delegated the tasks of shortlisting of the applicants to the Finance and Administration committee of the board.
“Energy and Petroleum Regulatory Authority (EPRA) board of directors in consultation with the Cabinet Secretary for Energy, Charles Keter has appointed Daniel Kiptoo Bargoria to the role of Director-General for a term of three years’ renewable once with effect from July 1st 2021.” The Board said in a statement signed by the chairman, retired justice Jackton Ojwang.
The board added that Kiptoo “held the position in an acting capacity since December 14, 2020.
Kiptoo is said to have been instrumental in drafting the Energy Act, 2019 and the Petroleum Act, 2019.
He previously worked as the legal advisor at the Ministry of Energy and State Department of Petroleum.
The audit also shows the board appointed Kiptoo as the acting DG without approval from the then Cabinet Secretary.
A further review of the board minutes shows that the special board meeting of December 14, 2020 ended at 8pm and that the board’s letter seeking the approval for appointment of Kiptoo as the acting DG was done and sent to the Cabinet Secretary on the same day.
“The board then issued an appointment letter on December 14, 2020 to one of their own to act as DG even before the approval was granted.” The audit report reads.
The report further notes that the acting DG accepted the appointment on the same day.
This is notwithstanding that the letter from the Ministry Energy on the appointment was issued on December 15, 2020.
“This implies that the board appointed him before getting the Ministry’s approval,” states the audit report noting that the appointment was against the Energy Act of 2019.
Charles Keter was the then Energy Cabinet Secretary.