The clock is ticking for Kenya Railways Managing Director (MD) Philip Mainga as a new court petition seeking to kick him out of office gathers momentum, with the petitioner arguing that his continued stay is unconstitutional and has undermined public confidence in the corporation.
The petition, filed by public interest litigant Wahome Mucunu before the High Court, accuses Mainga of overstaying his lawful tenure and presiding over a culture of secrecy and mismanagement at the parastatal.
The petitioner contends that Mainga was appointed in 2018 and has since served beyond the permissible two three-year terms, a period he says ought to have lapsed in 2024.
"Under the prevailing governance principles applicable to the state corporations, the office of the Managing Director is not meant to be occupied indefinitely," the public interest litigant argues in his petition. He adds that Mainga's tenure in office ought to have lapsed in 2024.
Mainga has been named as an interested party in the proceedings, and the case has been filed against the Kenya Railways Board, the Attorney General, and the Transport Cabinet Secretary.
The petition claims that the corporation has been at the heart of numerous concerns over procurement and transparency, and states that among the projects that have raised questions is the Standard Gauge Railway (SGR) project.
"Transparency International this year in March allegedly indicated that SGR was a high risk project, with a 4.9 out of 5 corruption risk score," the court filing states.
He further argues that "the project has equally generated sustained public debate concerning transparency, accountability, value for money, public participation, procurement practices and debt sustainability."
He also states that "the people of Kenya, being the ultimate financiers of the project through taxation and public borrowing, possess a legitimate constitutional interest in the manner in which the project was conceived, procured, financed and implemented."
The petitioner further claims that Transparency International indicated that public institutions, among them Kenya Railways, repeatedly failed to provide information requested by accountability actors and researchers.
"The assessment concluded that the responses received were insufficient to facilitate effective public oversight," he alleges.
He further states that "all material times relevant to this Petition, the first interested party, Mr Phillip Mainga, has served as the Managing Director of Kenya Railways Corporation."
He also notes that "the office of Managing Director constitutes the highest executive office within the Corporation and carries overall responsibility for the administration, management and operational control of the affairs of the Corporation."
The petition further states that many questions have been raised by members of the public, civil society organisations, governance experts, and accountability institutions regarding the management of major projects undertaken by the corporation.
"Such concerns have centered on the adequacy of procurement procedures, transparency of contractual arrangements, disclosure of project costs and effectiveness of oversight mechanisms," he states.
He maintains that "these concerns have never been adequately addressed in a manner capable of restoring public confidence."
In his case before Justice David Mburu, the petitioner urges the court to find that failure to disclose details about the SGR contract was a violation of the Constitution.
He also seeks a finding that Mainga ought to have left office by last year.
At the same time, he is urging the court to rule that the parastatal's board had violated the Constitution and to compel it to find his successor. He also wants the SGR project contracts audited.
"The continued tenure of the Kenya Railways Managing Director is unconstitutional," he argues.
He contends that Mainga's leadership "has undermined public confidence in the corporation and is inconsistent with the principles of integrity, accountability and transparency under Chapter Six of the Constitution."
He further contends that "procurement processes surrounding the SGR lacked openness, competitiveness and cost effectiveness as required under Article 227 of the Constitution and the Public Procurement and Asset Disposal Act."
Among the orders sought, the petitioner wants the court to declare the continued occupation of office by the Kenya Railways Managing Director unconstitutional, compel the relevant authorities to commence the process of his removal and replacement, and order the publication of all SGR contracts, loan agreements, procurement records, and audit reports.
The petition also seeks orders directing the Ethics and Anti Corruption Commission to investigate procurement and governance concerns surrounding the SGR project, the Auditor General to conduct a special audit, and a comprehensive forensic audit of all procurement and expenditure related to the railway.
Additionally, the application seeks conservatory orders barring the Managing Director from making procurement, contractual, financial, or policy decisions on behalf of Kenya Railways Corporation pending the hearing and determination of the case.
He argues that "the office of the managing director and chief executive officer of KRC is a public office that carries significant public trust, involves the administration of public resources and entails the exercise of public authority."
He contends that "despite completing the permissible two terms of three years each, Mr Mainga continues to serve in office and exercise the powers of the position, including signing contracts, entering into agreements and undertaking public functions."
The petitioner warns that "unless the court intervenes, the continued exercise of authority by Mr Mainga could result in further constitutional violations."
He wants the court to direct the KRC Board to appoint an acting managing director pending the determination of the case.
The application also seeks orders compelling KRC to disclose all contracts, agreements, and other instruments signed by Mainga during the disputed period, including those relating to commuter rail projects and international agreements.
"The managing director's office is a senior public position involving the management of public assets and resources," he argues. He insists that "holders of the office are constitutionally required to demonstrate integrity, accountability, transparency and professionalism at all times."
He maintains that Mainga has exhausted his tenure but continues to discharge the powers and responsibilities attached to the office, and further notes that several ongoing projects and arrangements involving substantial public resources and public interest were undertaken during the contested period.
"The KRC Board has a constitutional and statutory duty to ensure that individuals occupying senior offices meet the requirements of leadership, integrity and accountability," the petitioner says.
He argues that "occupying the office beyond the lawful tenure is unconstitutional, unlawful, null and void."
He states that "appointments to such senior public offices are typically made on fixed term contracts that may be renewed subject to performance and compliance with lawful renewal procedures."
He further argues that "the applicable tenure for the KRC managing director is two renewable terms of three years each, unless a lawful extension, renewal or reappointment is undertaken in accordance with the relevant public service and state corporation governance frameworks."
The application also seeks disclosure of key governance documents, including appointment instruments, employment contracts, renewal or extension approvals, board resolutions, gazette notices, performance contracts, and all contractual instruments executed during the disputed period.
The Kenya Railways Board, the Attorney General, and the Transport Cabinet Secretary have been named as respondents in the petition, and the court is expected to set a hearing date after all parties have filed their responses.
As the legal battle intensifies, the future of Philip Mainga's leadership at Kenya Railways hangs in the balance, and the outcome of this case could have far reaching implications for the management of public resources and the accountability of state corporations in Kenya.
The petitioner remains hopeful that the court will act decisively to end what he describes as an unlawful occupation of a public office and restore public confidence in the management of Kenya's railway infrastructure.
