Njiraini gets court nod to continue KRA term

Kenya Revenue Authority boss John Njiraini. FILE PHOTO | NMG 

By SAM KIPLAGAT

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Summary

• Justice Nelson Abuodha said John Njirani was appointed on a fixed term contract which is permissible under Section 80(2) of the Public Service Commission Act.
• He said the Act permits appointment of a public officer who has attained the mandatory retirement age to serve on fixed term contract.

Kenya Revenue Authority boss John Njiraini can continue serving as the commissioner-general after a judge dismissed a case challenging the extension of his term.

In the decision, Justice Nelson Abuodha said Mr Njirani was appointed on a fixed term contract which is permissible under Section 80(2) of the Public Service Commission Act. He said the Act permits appointment of a public officer who has attained the mandatory retirement age to serve on 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.

Justice Abuodha added that the Cabinet Secretary Finance has control over performance and strategic direction of KRA including recruitment and retention of staff in certain key positions in order to realize its functions set out under section 5 of the Act.

The Judge added that Mwongozo and the circulars relied upon by Okiya Omtatah to challenge the extension are policy documents issued by government from time and the intention in most cases is to harmonize or in certain cases explain departure or variation of any existing policy.

“They, however, cannot be used to bar or prevent a strategic decision of the government,” he said.

Justice Abuodha said that whereas the running of government should be on a clear and predictable policy, policy influences but does not bind the government in executing its duties especially where such exercise of duty is accompanied by reasonable explanation and is carried out in a way that does not on the face of it violate the law or the constitution.

READ: Njiraini to stay at KRA until court rules on retirement

Mr Omtatah to court last year accusing the KAR board of abdicating its roles by failing to send Mr Njiraini on compulsory leave, six months to his 60th birthday.

Through lawyer Waweru Gatonye, KRA defended the move and the subsequent extension, for another on year, through a circular issued by head of Public Service Joseph Kinyua.

In a circular dated February 27 2018 titled; Terms of service for State Corporation’s chief executive officers, Mr Kinyua scrapped the age and term limits, allowing the top civil servants to work beyond the mandatory retirement age of 60 years. The circular also said the CEOs can serve more than two terms.

Mr Omtatah moved to court last year arguing that Mr Njiraini should be on terminal leave, pending his retirement. The Activist argued that Mr Njiraini reached the mandatory retirement age of 60 years on December 19, and should be therefore serving a six-month leave.

It was his argument that KRA board of directors and Treasury secretary Henry Rotich should immediately appoint an acting commissioner-general and at the same time, send Mr Njiraini on leave.