EPRA board on the spot over suspension of director general
The Attorney General has faulted the Energy and Petroleum Regulatory Authority’s board for suspending the Director General as a result of a court order arising from a petition challenging his contract extension.
In a legal opinion sent to Energy Cabinet Secretary Charles Keter, the AG says the board should have alerted the court of the true position of Director General Pavel Oimeke’s status–– that his contract was renewed on May 7, 2020, more than two months before the petitioner went to court on July 16, 2020.
“We are of the firm view that the action by the board to require the Director General to step aside in purported compliance with the said court order was, with respect, ill-advised and an attempt to undo previous actions that had already been performed by the board and the Cabinet Secretary,” reads the advisory signed by Solicitor General Kennedy Ogeto.
“As such, and from the totality of the foregoing, it is our considered opinion that the decision by the board to require the first respondent to step aside from his role as Director General of EPRA is blatantly erroneous, based as it is on an ineffective premise - namely, an unenforceable court order,” the advisory further explains.
The EPRA board, which is chaired by retired Supreme Court judge Prof Jackton Ojwang’ met on August 14, 2020 and resolved to suspend Oimeke following a court order issued on August 11, 2020, following a petition by one Emmanuel Wanjala.
Wanjala had sought conservatory orders restraining the Energy CS and the EPRA board from renewing Oimeke’s contract until a case he (Wanjala) had filed was heard and determined.
However, in his advisory, the AG notes that while court orders must be obeyed, “and that where an individual is enjoined by an order of court to do or to refrain from doing a particular act, he has duty to comply; such duty does not extend to actions already executed and therefore incapable of being stayed”.
Adds the AG: “The said court order––in its current form–– cannot rightly form the legal basis for the board’s decision to require its Director General to step aside, nor yet can any such action by the board to have properly been undertaken in compliance with the impugned court order.”
The AG says that instead of taking the “drastic and clearly irregular action” to suspend the Director General, the board ought to have notified the court of the correct status of Oimeke’s contract.
The advisory is copied to Head of Public Service Joseph Kinyua, Cabinet Secretary Fred Matiang’i, Energy PS Joseph Njoroge and Ojwang’.