‘Illegal’ MD?: Noose tightens on Mainga as fresh petition revives Kenya Railways tenure fight

The legal noose around Kenya Railways Corporation Managing Director and Chief Executive Officer Philip J. Mainga has tightened after a fresh petition was filed challenging his continued occupation and exercise of the powers of the State corporation’s top office, days after an earlier case on the same issue was withdrawn.

The new case by the Centre for Litigation Trust seeks conservatory orders stopping Mainga from making any new or further substantive decisions as CEO until the High Court determines whether he still has a valid legal mandate to hold the office.

The petition comes after the Employment and Labour Relations Court briefly barred Mainga from occupying, representing himself as, or exercising the powers and functions of Kenya Railways MD and CEO.

Justice Nzioki wa Makau issued the interim orders after Joan Machuma Nyongesa challenged the legality of Mainga’s continued tenure.

The judge directed that the order would remain in force pending the inter partes hearing and further suspended any decision, instrument, resolution, extension, renewal, reappointment or administrative arrangement purporting to authorise Mainga’s continued occupation after the apparent expiry of his last lawful term.

The order carried a penal notice warning that disobedience or non-observance could attract penal consequences.

Respondents were directed to file and serve their responses within three days, with the application scheduled for inter partes hearing on August 18, 2026.

But on August 11, 2026, Nyongesa filed a notice formally abandoning the proceedings, stating that she had “wholly withdrawn” the Notice of Motion and petition dated August 10.

The notice did not give reasons for the withdrawal, effectively removing the August 18 hearing from the immediate course of that case.

The fresh petition by the Centre for Litigation Trust has now reopened the tenure question and places the legality of Mainga’s continued leadership squarely before the High Court.

According to the Centre, Mainga was appointed MD and CEO for an initial three-year term beginning February 3, 2020.

That term expired on February 2, 2023. The petitioner says the Kenya Railways Board subsequently renewed or extended his appointment for another three years from February 3, 2023.

If that second term was validly granted, the Centre argues, it expired on February 2, 2026.

“There is therefore a serious and arguable constitutional and statutory question as to the legal basis upon which the 3rd Respondent continues to exercise the office,” the Centre says in documents filed in court.

The organisation argues that Mainga has continued to occupy and exercise the powers of CEO despite the apparent expiry of his second term, raising questions about the legality of decisions being made at a state corporation responsible for critical railway infrastructure and significant public resources.

The dispute has been sharpened by the Government Owned Enterprises Act, 2025, which came into operation on December 5, 2025.

The Centre says the law created a new statutory framework governing State corporations and their chief executives, with Section 18 assigning Boards responsibilities relating to CEO appointments, removal and succession, while Section 22 provides for a three-year CEO term with eligibility for one further term.

The petition also challenges the interpretation of paragraph 10(3) of the Fourth Schedule, which contains transitional provisions affecting chief executives already in office when the Act commenced.

“The Petitioner contends that paragraph 10(3) of the Fourth Schedule does not confer an indefinite or unlimited tenure upon an incumbent Chief Executive Officer,” the Centre states.

The petitioner says it does not possess the original documents capable of conclusively establishing the legal basis of Mainga’s continued tenure and wants the court to compel Kenya Railways and its board to produce them.

The documents sought include Mainga’s original appointment letter, the instrument renewing or extending his tenure, the board resolution approving the renewal, any approval or concurrence relied upon, his terms and conditions for the second term and any subsequent document purporting to extend, renew, vary or continue his tenure.

The Centre also wants all board resolutions made after December 5, 2025 concerning Mainga’s tenure and any legal opinion formally adopted by the Board on the effect of the Government Owned Enterprises Act on his position.

Rule of law

Further, according to documents filed in court, the petitioner warns that the CEO exercises authority over expenditure, procurement, contracts, employment, assets and the corporation’s operations. It says continued exercise of public power by a person whose lawful tenure may have expired presents an ongoing threat to the rule of law, accountability and constitutional governance.

“Such actions may create third-party rights and obligations and thereby complicate or defeat the effective implementation of the final orders of this Honourable Court,” the Centre argues.

The Centre further avers that the dispute is a matter of public interest rather than a private employment contest, given Kenya Railways’ role in railway transport and critical national infrastructure.

“The balance of public interest favours ensuring that public authority is exercised only by a person whose legal entitlement to hold office is established,” it says.

It is asking the High Court to determine whether Mainga has a valid and continuing mandate, declare that the transitional provision cannot confer unlimited tenure, and establish when his lawful term expired.

If the court finds the office vacant, the Centre wants Kenya Railways and its board ordered to undertake a lawful process for appointing a substantive MD and CEO.

It is also asking the court to determine the status of decisions, instruments and acts undertaken by Mainga after the alleged expiry of his mandate and, where necessary, quash any instrument purporting to extend his tenure contrary to the Constitution and the law.

The case names Kenya Railways Corporation, its board chairperson whose incumbent is Abdi Bare Duale, Mainga and the Attorney-General Dorcas Oduor as respondents, with the Public Service Commission as an interested party.