REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E040 OF 2026
BETWEEN
FRANCIS AWINO ............................................................................. PETITIONER
VERSUS
ENG. KIPKEMOI KIBIAS...............................................................RESPONDENT
AND
THE BOARD OF DIRECTORS, KENYA ELECTRICITY TRANSMISSION COMPANY LIMITED (KETRACO)........................... 1 ST INTERESTED PARTY
THE ETHICS AND ANTI-CORRUPTION
COMMISSION.............................................................. 2 ND INTERESTED PARTY
THE ATTORNEY-GENERAL..................................... 3 RD INTERESTED PARTY
JUDGMENT
1. In his petition dated 19 th January 2026 the petitioner, Francis Awino, seeks the following reliefs:
a. A Declaration that the Respondent, Eng. Kipkemoi Kibias, in his capacity as the Acting Managing Director and Chief Executive Officer of Kenya Electricity Transmission Company Limited (KETRACO), violated Articles 2, 10, 41, 47, 73, 232 and Chapter Six of the Constitution of Kenya, 2010.
b. A Declaration that the Respondent abused his office, exceeded his lawful authority, and exercised public power arbitrarily and unconstitutionally, as judicially confirmed by the Judgment and Decree of the Employment and Labour Relations Court delivered on 17 th December 2025.
c. A Declaration that the Respondent lacks the integrity, constitutional fidelity, and ethical threshold required under Chapter Six of the Constitution, and is therefore unfit to hold public office within the meaning of Articles 73 and 75 of the Constitution.
d. An Order declaring that the Respondent is disqualified from holding the office of Managing Director and Chief Executive Officer of KETRACO, or any other public office requiring compliance with Chapter Six of the Constitution, unless and until he is subjected to lawful vetting and cleared in accordance with the Constitution.
e. An Order of Suspension suspending the Respondent from the office of Acting Managing Director and Chief Executive Officer of KETRACO, pending: investigations into his unconstitutional conduct, and determination of his suitability to continue holding public office.
f. An Order of Mandamus compelling the Board of Directors of KETRACO to immediately initiate disciplinary and governance processes against the Respondent in compliance with the Constitution, the State Corporations Act, and applicable governance instruments.
g. An Order of Mandamus compelling the Ethics and Anti-Corruption Commission (EACC) to investigate the Respondent for abuse of office, misuse of authority, and violation of Chapter Six of the Constitution.
h. An Order of Mandamus compelling the Public Service Commission and/or the State Corporations Advisory Committee to conduct a comprehensive integrity, leadership, and suitability review of the Respondent.
i. An Order restraining the Respondent, whether by himself, agents, servants, or proxies, from exercising disciplinary or human resource powers within KETRACO pending full compliance with this Court’s orders.
j. An Order directing that all administrative and human resource decisions undertaken by the Respondent in violation of constitutional and statutory requirements be reviewed, audited, and, where necessary, nullified.
k. A Declaration that State officers cannot hide behind corporate entities to evade personal accountability for unconstitutional actions undertaken under their authority.
l. An Order directing the Respondent to personally bear responsibility for any costs, damages, or losses occasioned to the public arising from litigation precipitated by his unconstitutional conduct.
m. General Damages for violation of the Constitution, public interest litigation costs, and affront to constitutional governance, in an amount to be assessed by this Honourable Court.
n. Costs of this Petition be borne personally by the Respondent.
o. Interest on costs and any monetary awards at court rates from the date of judgment until payment in full.
p. Such further or other orders as this Honourable Court may deem fit and just to grant in the circumstances, in order to uphold the Constitution, enforce accountability, and protect the public interest.
2. The petition is premised on grounds on the face thereof and supported by an affidavit sworn on even date. The petitioner states that the respondent was the acting Managing Director and Chief Executive Officer of the Kenya Electricity Transmission Company Limited (KETRACO) and as such bore overall executive authority, supervisory control and ultimately responsibility over all human resource decisions, disciplinary processes and administrative actions undertaken by KETRACO.
3. It is stated that on or 19 th September 2025, under his authority, KETRACO issued a letter referenced KET/5/1A/10013/kk/lck, purporting to send Eng. Antony Tawayi Wamukota, a senior employee of the corporation, on a three (3) month compulsory leave. That Eng. Antony Tawayi Wamukota was aggrieved and therefore filed a constitutional petition before the Employment and Labour Relations Court (ELRC), challenging the legality, constitutionality, and procedural propriety of the Respondent’s actions. In a judgment delivered on 17 th December 2025, the Court made definitive findings condemning the actions of KETRACO undertaken under the leadership of the Respondent.
4. It is averred that the Court declared that the three-month compulsory leave imposed on Eng. Antony Tawayi Wamukota was irregular, unprocedural, illegal, and unconstitutional, and therefore null and void ab initio. The Court further issued a mandatory order directing KETRACO to unconditionally revoke the compulsory leave and to allow the immediate resumption of duty by the affected officer.
5. It is further asserted that the Court also revoked and nullified the Respondent’s letter dated 19 th September 2025 and restrained the Respondent and KETRACO from terminating or otherwise interfering with the employment of the affected officer on the basis of the illegal compulsory leave, and found that the Respondent’s actions amounted to double jeopardy, rendering him functus officio in the matter and that the Court condemned the Respondent’s conduct by awarding costs against KETRACO.
6. The petitioner contends that the Judgment and Decree of the Court remain valid and constitute a judicial determination that the Respondent presided over and implemented an unlawful, arbitrary, and unconstitutional employment regime within a critical State Corporation. He asserts that the Respondent’s actions demonstrate a blatant disregard for the rule of law, judicial authority, and constitutional safeguards governing fair labour practices and administrative justice. Further that by the compulsory leave, the Respondent abused his office, undermined institutional integrity, and exposed a culture of impunity and executive excess at KETRACO.
7. According to the petitioner, the respondent’s conduct violated the provisions of articles 10, 41, 47, 73 and Chapter Six of the Constitution, sections 4 (1), 4(2) and 4(3) of the Fair Administrative Action Act, 2015 and the Employment Act, 2007. Further that unless restrained by this Court, the Respondent’s continued stay in office poses danger to constitutional governance, lawful administration, and the rights of employees and citizens who interact with KETRACO.
Responses to the petition.
8. In response, the 1 st respondent and 1 st interested party filed replying affidavit sworn by Eng. Kipkemoi Kibias on 2 nd April 2026 and preliminary objection dated 21 st March 2026 opposing the petition on several grounds.
The preliminary objection
9. The preliminary objection is predicated upon the grounds that the petition offends the doctrines of exhaustion and constitutional avoidance by virtue of the provisions of sections 11(1) (d), (e) and (f) and Part IV of the Ethics and Anti-Corruption Commission; section 60, 62(1) (f) and 62(2) of the Public Service Commission Act; and sections 9(2) and (4) of the Fair Administrative Actions Act, 2015.
Replying affidavit
10. The respondent swore a replying affidavit on 2 nd April 2026 on his own behalf and on behalf of the 1 st interested party in which he deposes that he assumed the office of the Managing Director of the 1 st interested party in an acting capacity on 19 th September 2025. That prior to his appointment, the 1 st interested party had commenced and set in motion a disciplinary process against one Eng. Antony Tawayi Wamukota.
11. It was deposed that sometimes in 2023, KETRACO tendered for provisions of long haulage transport services and heavy-duty handling equipment under tender No. KETRACO-ST-006-2023. That upon completion of the tender evaluation exercise, Elsogom Limited emerged as the successful bidder and was consequently awarded the tender at a total contractual sum of Kshs. 9,538,500.
12. According to the respondent and 1 st interested party, that the award was communicated through letter of intent dated 10 th July 2023 and the subsequent execution of a formal contract between KETRACO and Elsogom Limited upon expiry of 14 days from the date of issuance. He explains that the subject tender concerned the provision of long-haul transport services and heavy-duty handling equipment for the transportation of two transformers; 90/110 MVA and 18/23 MVA, from the port of Mombasa to Kitale and Ortum respectively.
13. It is contended by the respondent and 1 st interested party that nnotwithstanding KETRACO’s stipulation of the conditions governing the implementing of the award, Eng. Anthony Tawayi Wamukota approved a memo dated 20 th July 2023 authorizing officers to travel to Mombasa to supervise the loading of the subject transformers, thereby initiating their transportation. That consequently, Elsogom Limited proceeded to load the transformers from the CFS Console Base at Terminal 2, operated by Ken freight Limited for transport to Ortum and Kitale substations, notwithstanding that a formal contract had not yet been duly executed and prior to the expiration of the 14 days stipulated in the letter of intent to award.
14. That KETRACO’s management learnt of the occurrence of the scenarios described herein above and initiated investigations by issuing a notice to show cause letter dated 1 st December 2023, to Eng. Antony Tawayi, by the then Managing Director of KETRACO.
15. That Eng. Wamukota offered no reply and instead instituted proceedings before the Employment and Labour Relations Court through Petition No. E213 of 2023, seeking to stay the Notice to Show Cause but that upon final determination of the matter on 8 th April 2024, no such orders were granted.
16. The respondent and 1 st interested party narrate that on 18 th January 2024, Eng. Wamukota submitted a response in respect of an investigation being undertaken by the Manager, Security Services, wherein the said Manager sought to ascertain his role in the tender for long haul transport services and heavy-duty handling equipment for the two transformers destined for Ortum and Kitale.
17. That the Board of Directors, KETRACO reviewed Eng. Wamukota’s response dated 18 th January 2024 and found it to be unsatisfactory and a communication was made through their letter dated 24 th April 2024 issued by the then Managing Director, Dr. Eng. John Muoki Mativo and consequently, Eng. Wamukota was summoned to appear for a disciplinary hearing. It is deposed that Eng. Wamukota responded through response dated 30 th April 2024 and he underwent a disciplinary hearing on 13 th May 2024 in accordance with the Section 11 of the company’s Human Resource Policy and Procedures Manual, 2019 and the Employment Act,2007. That upon review of the response and upon deliberations of the Board it was determined that he be cautioned. He was thus cautioned through a letter dated 7 th June 2024.
18. The respondent and 1 st interested party states that following a resolution of the Board of Directors at its meeting held on 18 th September 2025, new information relating to the tender for transportation of the two transformers was discovered, in which Eng. Wamukota was implicated. Eng. Wamukota was accordingly placed on compulsory leave pursuant to the Board’s resolution of 18 th September 2025; the said decision was expressed by the letter dated 19 th September 2025 to allow for investigations.
19. It is thus asserted that the respondent was accordingly wholly uninvolved in the disciplinary proceedings concerning Eng. Tawayi Wamukota from their inception, through the issuance of any caution, to the 1 st interested party’s determination to place him on compulsory leave. Further that the respondent’s act of issuing the letter dated 19 th September 2025, by which the 1 st interested party’s decision was formally communicated, fell within the ambit of his authority by virtue of section 17.1 of KETRACO’s Human Resource policy and Procedures Manual.
20. The respondent and 1 st interested party contend that the entire investigations involved the whole procurement architecture from the user department, the supply of chain management and ultimately to the Office of the Managing Director. Peter Njehia, a then Senior Supply Chain Manager, was suspended through letter dated 28 th May 2024 and later dismissed for contravention of Part IV section 2 (iii) (a)and (s) of the Company Code of Conduct, Section 11 Part 11.7 (iii) (a) and (r) of the Company Human Resource Policy Procedures Manual as well as section 44 (4) of the Employment Act. That nother officer from the supply chain management department, one Collins Rono was processed through Human Resource Advisory Committee and was punished with a warning letter and increment deferred for a period of 1 year. One Eng. Evans Papa, received a warning letter and his annual increment deferred for a period of one year. Further, that the then Managing Director Dr. Eng. John Muoki Mativo, was also subjected to disciplinary proceedings culminating in his dismissal on 18 th September 2025.
21. Further, that disciplinary proceedings were also instituted against the then Accounting Officer and Head of Procurement, Prisca Kubasu, with a show cause letter dated 8 th December 2023 and eventual dismissal on 2 nd September 2024. Prisca Kubasu challenged her dismissal through ELRC Petition E 143 of 2024 where the Court in its judgment struck out the petition directing recourse to the Public Service Commission.
22. There after, that the Public Service Commission, in PSC State Corporations Appeal 054 of 2024, upheld the dismissal and through letter dated 12 th July 2025 directed, among others the 1 st interested party to initiate disciplinary proceedings against all officers implicated in the tender process governing the transportation of the 90/110 MVA and 18/23 MVA Ortum and Kitale transformers to the Turkwel Ortum -Kitale Substation.
23. It is stated that the disciplinary proceedings against Eng. Wamukota were informed solely by information received by the 1 st interested party, arising from the subtleties and intricacies embedded within the tender process, up to the moment when Elsogom Limited loaded the transformers from the CFS. That therefore, the subsequent investigations, which informed the decision to place him on compulsory leave, were undertaken wholly in faithful adherence to and in furtherance of the directive issued by the Public Service Commission. The compulsory leave was therefore a lawful and necessary interim measure pending the forensic investigation mandated by the PSC, and not a punitive sanction itself.
24. It is asserted that considered together with Clause 11.2 of the Company’s Human Resource Policy and Procedures Manual, 2019 which vests oversight of employees in Grades KETI-KET4 with the Board, and all others with the Human Resource Advisory Committee, the pattern of conduct exhibited by the 1 st interested party demonstrates that the disciplinary process were fair, anchored in legitimate concerns and executed with impartiality and integrity noting that in the case of Prisca Kubasu, her dismissal was upheld by the PSC.
25. Accordingly, it is averred that no malice, corrupt intent, or personal interests can be ascribed to the 1 st interested party or the respondent. In the circumstances, by communicating the 1 st interested party’s resolution of 18 th September 2025, the respondent acted within the bounds of his assigned duties under section 17.1 of KETRACO’s Human Resource Policy and procedure Manual. The 1 st interested party equally discharged its responsibilities in line with 11 of the same Policy.
26. It is stated that based on the foregoing, the respondent did not have a hand in Eng. Wamukota’s disciplinary process. Further, that the issues arising from the board’s decision were adjudicated by ELRC in Petition E 185 of 2025 wherein the court sitting in its constitutional jurisdiction, granted remedies to him as the full and final legal consequence of the Boards decision. Hence fully exhausted and the issue is moot.
27. It is contended that the petition therefore amounts to an abuse of the court process; the decision to place Eng. Wamukota on compulsory leave was undertaken exclusively to enable a fair, transparent and unhindered investigative process and pursuant to Regulation 62(3) of the Public Service Regulations and clause 11.13 of the company’s Human Resource Policy and Procedures Manual 2019. They urge the court to give effect to the doctrine of exhaustion of administrative remedies.
2 nd interested party’s response
28. The 2 nd interested party EACC opposed the petition through grounds of opposition dated 16 th February 2026. It is contended that the 2 nd interested party is empowered pursuant to the provisions of Chapter Six of the Constitution of Kenya; the Anti-Corruption & Economics Crimes Act, 2023; Ethics & Anti-Corruption Commission Act, 2011 and Leadership and Integrity Act, Cap 182 Laws of Kenya to investigate the conduct of any person and/or body which is its opinion constitutes corruption, economic crime and unethical conduct.
29. It is stated that pursuant to article 79 of the constitution, the 2 nd interested party is vested with the mandate to investigate corruption, economic crimes and unethical conduct. Section 11 (1) (d-(f) EACC Act mandates it to investigate allegations of breaches of Codes of conduct; recommend appropriate actions to be taken against state officers or public officers alleged to have engaged in unethical conduct and oversee the enforcement of codes of ethics prescribed for public office.
30. In addition, that the 2 nd interested party is bestowed the responsibility of overseeing and enforcing the implementation of LIA pursuant to section 4(2) Leadership and Integrity Act which includes the mandate to inquire into and investigate allegations of breach of code of ethics upon receipt of a complaint or on its own motions under section 42 (10).
31. The 2 nd interested party contends that the petitioner has not demonstrated to this court that prior to the filing of this petition, the 2 nd interested party was without any proper or justifiable reason failed or refused to investigate such complaints to warrants the issuance of the orders sought to compel it to investigate the respondent.
32. Further, that the petitioner has not presented factual or substantial claim, controversy or dispute that has arisen between himself and the 2 nd interested party which calls for adjudication before this court. Similarly, that no acts or omission attributed to the 2 nd interested party, have been disclosed by the petitioner which are in violation of likely to be in violation of any part of the Constitution.
33. It is thus contended that granting the order sought against the 2 nd interested party would contravene article 249 (2)(b) of the Constitution and section 28 of the Ethics and Anti-corruption Act.
3 rd interested party’s response
34. The 3 rd interested party did not file formal repose to the petition.
Petitioner’s submissions
35. The petitioner in his submissions dated 3 rd February, 2026 argues that by exercising public power in a manner that was subsequently invalidated by a court of law, the respondent acted in defiance of the rule of law, undermined accountability, and offended the national values and principles of governance enshrined under Article 10 of the Constitution.
36. The petitioner contends that the ELRC expressly held that the compulsory leave had no legal basis and could not stand in law. This finding, the petitioner argues, demonstrates that under the respondent’s leadership, KETRACO was administered in a manner that institutionalized illegality, thereby exposing employees to arbitrary and unlawful labour practices in direct violation of Article 41 of the Constitution.
37. The petitioner submits that the respondent’s decision failed to align with the requirements of article 47 of the Constitution. That there was no notice, no hearing, no lawful justification and no procedural compliance. He places reliance on the Court of Appeal decision in Judicial Service Commission v Mbalu Mutava & another [2015] eKLR where it is said that the Court emphatically held that Article 47 constitutionalizes administrative justice and renders invalid any administrative action taken without adherence to due process.
38. The petitioner asserts that Article 73 of the Constitution demands that authority assigned to a state officer be exercised in a manner that brings honour to the nation, promotes public confidence, and is consistent with the purposes and objects of the Constitution. Further, that a state officer whose actions are judicially condemned, revoked, restrained, and penalized through an award of costs cannot be said to have exercised authority honourably or in a manner that promotes public confidence.
39. The petitioner maintains that judicial nullification of executive action is the clearest and most objective evidence that constitutional trust has been breached. That the respondent’s conduct therefore violated Articles 10, 41, 47, and 73, and triggered the integrity implications contemplated under Chapter Six of the Constitution.
40. As to whether the respondent meets the Chapter Six integrity threshold to hold public office, the petitioner relies on the decision in Trusted Society of Human Rights Alliance v Attorney General & 2 others [2012] eKLR , and International Centre for Policy and Conflict & 5 others v Attorney General & 4 others [2013] eKLR for the proposition that the respondent’s integrity must be evaluated against the undisputed fact that a court of law found that he presided over and implemented an unconstitutional employment regime, abused administrative authority, and subjected a public institution to judicial censure.
41. The petitioner submits that a state officer who authorizes or permits illegal administrative action, ignores due process and exposes a state corporation to adverse judicial findings and costs cannot be said to exemplify integrity, accountability, or selfless service as required under Articles 73 and 75 of the Constitution.
42. The petitioner therefore urges this Court to find that a state officer whose actions have been judicially declared illegal and unconstitutional cannot satisfy the integrity threshold required under Articles 73 and 75, and is unfit to continue holding public office without undergoing lawful accountability and vetting mechanisms.
43. The petitioner cites the provisions of Articles 22, 23 and 165 (3) (b) of the Constitution and the decisions in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR, Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR and Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others for the submission that this court has jurisdiction to hear and determine the instant petition and that the petition raises constitutional questions concerning: abuse of public office, breach of Articles 10, 41, 47, 73, and Chapter Six, and continued occupation of public office in the face of judicial findings of unconstitutionality.
The Respondent and 1 st interested party’s submissions
44. In their joint written submissions, the respondent and the 1 st interested party rely on the locus classicus on a preliminary objection and jurisdiction of the Court as was settled in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696; Vincent Mwanthi Kioko v Edward Sigei & 4 others [2021] KEHC 3947 (KLR); Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR and Samuel Kamau Machaira & another v Kenya Commercial Bank Limited & 2 others [2012] KESC 8 (KLR) for the propositions that the present objection fall’s within the well settled Mukisa Biscuit yardstick.
45. It is submitted the petition is cast as a Chapter Six and public service ethics grievance hence, the petitioner should have exhausted the alternative dispute resolution mechanisms stipulated under section 11(1) (d), (e) (f) and 13(2) (c) of the Ethics and Anti-Corruption Commission Act; section 4(2) of the Leadership and Integrity Act and sections 60, 62(1) (f) and 62(2) of the Public Service Commission Act, before invoking this court’s jurisdiction. Reliance is placed on the cases of Agoro & 2 others v Ethics & Anti-Corruption Commission & 4 others [2024] KEHC 7955 (KLR); Agoro & 2 others v Orengo & another; Oduol & another (Interested Parties) [2023] KEHC 25200 (KLR) and Speaker of the National Assembly v James Njenga Karume [1992] KECA 42 (KLR).
46. The respondent and 1 st interested party contend that while the petitioner relies on Article 47 of the Constitution, the rights under that Article are implemented through the Fair Administrative Action Act and that under section 9(3) and 9(4) of the Act, the petitioner was required to first exhaust the available statutory remedies or obtain an exemption. They argue that since no exemption had been sought, the petition is premature.
47. They further argue that the petitioner has improperly framed an employment and administrative dispute as a constitutional matter. Relying on Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others , the respondent and 1 st interested party contend that the dispute should first be addressed through the relevant statutory mechanisms. They submit that allegations relating to Chapter Six should be pursued under the relevant legislation, including the EACC Act, the Leadership and Integrity Act, the Anti-Corruption and Economic Crimes Act, and applicable codes of ethics, while public service personnel matters should first be handled under the Public Service Commission Act.
48. Further reliance is placed on Agoro & 2 others v Ethics & Anti-Corruption Commission & 4 others and Muthinja & another v Henry & 1756 others [2015] KECA 304 (KLR) . They refute the petitioner’s claims that he has pleaded or demonstrated any exceptional circumstances to justify bypassing the established statutory architecture. It is argued that the invocation of Articles 22 and 258 of the Constitution does not displace jurisdictional discipline and that public interest litigation remains tethered to ripeness, exhaustion and constitutional avoidance.
49. The respondent and the 1 st interested party rely on the case of Matemu v Trusted Society of Human Rights alliance & 5 others [2013] KECA 445 (KLR) where the court stressed that allegations of want of integrity require cogent and tested evidence. They contend that the petitioner seeks a declaration that the respondent is unfit for office without a concluded investigation by the EACC, without exhausting the Public Service Commission's disciplinary process and without any conclusive evidence linking the respondent to the alleged misconduct. They therefore submit that this court is being asked to make a finding of unfitness prematurely and in the absence of the certainty required by law.
50. The respondent and the interested party wholly reiterate the averments in their replying affidavit and maintain that the respondent’s role was administrative in nature. That by communicating the 1 st interested party’s resolution of 18 th September 2025, the respondent acted within the bounds of his assigned duties under section 17.1 of KETRACO’s Human Resource Policy and Procedures Manual. In addition, that the 1 st interested party executed its obligations within the dictates of section 11 of the same Policy.
51. They maintain that the issues arising from the Board’s decision to place Eng. Antony Tawayi Wamukota on compulsory leave were adjudicated by the ELRC and remedies were granted as the full and final legal consequence of the Board decision. Therefore, they argue, that any further ventilation of the same substratum of facts amounts to an abuse of the process of this Court. They further submit that the substratum of the petition is spent and therefore moot.
52. The respondent and 1 st interested party submit that no liability can attach to the respondent for the 1 st interested party’s resolution, his role having been confined to the lawful communication thereof under the governing legal and policy framework. It is reiterated that the placement of Eng. Wamukota on compulsory leave was a measured and lawful step taken to secure unfettered investigative process in line with Regulation 62(3) of the Public Service Regulations and Clause 11.13 of the KETRACO Human Resource Policy and Procedures Manual, 2019.
The 2 nd interested party’s submissions
53. the 2 nd interested party submits that it is mandated to inves
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IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E040 OF 2026
BETWEEN
FRANCIS AWINO ............................................................................. PETITIONER
VERSUS
ENG. KIPKEMOI KIBIAS...............................................................RESPONDENT
AND
THE BOARD OF DIRECTORS, KENYA ELECTRICITY TRANSMISSION COMPANY LIMITED (KETRACO)........................... 1 ST INTERESTED PARTY
THE ETHICS AND ANTI-CORRUPTION
COMMISSION.............................................................. 2 ND INTERESTED PARTY
THE ATTORNEY-GENERAL..................................... 3 RD INTERESTED PARTY
JUDGMENT
1. In his petition dated 19 th January 2026 the petitioner, Francis Awino, seeks the following reliefs:
a. A Declaration that the Respondent, Eng. Kipkemoi Kibias, in his capacity as the Acting Managing Director and Chief Executive Officer of Kenya Electricity Transmission Company Limited (KETRACO), violated Articles 2, 10, 41, 47, 73, 232 and Chapter Six of the Constitution of Kenya, 2010.
b. A Declaration that the Respondent abused his office, exceeded his lawful authority, and exercised public power arbitrarily and unconstitutionally, as judicially confirmed by the Judgment and Decree of the Employment and Labour Relations Court delivered on 17 th December 2025.
c. A Declaration that the Respondent lacks the integrity, constitutional fidelity, and ethical threshold required under Chapter Six of the Constitution, and is therefore unfit to hold public office within the meaning of Articles 73 and 75 of the Constitution.
d. An Order declaring that the Respondent is disqualified from holding the office of Managing Director and Chief Executive Officer of KETRACO, or any other public office requiring compliance with Chapter Six of the Constitution, unless and until he is subjected to lawful vetting and cleared in accordance with the Constitution.
e. An Order of Suspension suspending the Respondent from the office of Acting Managing Director and Chief Executive Officer of KETRACO, pending: investigations into his unconstitutional conduct, and determination of his suitability to continue holding public office.
f. An Order of Mandamus compelling the Board of Directors of KETRACO to immediately initiate disciplinary and governance processes against the Respondent in compliance with the Constitution, the State Corporations Act, and applicable governance instruments.
g. An Order of Mandamus compelling the Ethics and Anti-Corruption Commission (EACC) to investigate the Respondent for abuse of office, misuse of authority, and violation of Chapter Six of the Constitution.
h. An Order of Mandamus compelling the Public Service Commission and/or the State Corporations Advisory Committee to conduct a comprehensive integrity, leadership, and suitability review of the Respondent.
i. An Order restraining the Respondent, whether by himself, agents, servants, or proxies, from exercising disciplinary or human resource powers within KETRACO pending full compliance with this Court’s orders.
j. An Order directing that all administrative and human resource decisions undertaken by the Respondent in violation of constitutional and statutory requirements be reviewed, audited, and, where necessary, nullified.
k. A Declaration that State officers cannot hide behind corporate entities to evade personal accountability for unconstitutional actions undertaken under their authority.
l. An Order directing the Respondent to personally bear responsibility for any costs, damages, or losses occasioned to the public arising from litigation precipitated by his unconstitutional conduct.
m. General Damages for violation of the Constitution, public interest litigation costs, and affront to constitutional governance, in an amount to be assessed by this Honourable Court.
n. Costs of this Petition be borne personally by the Respondent.
o. Interest on costs and any monetary awards at court rates from the date of judgment until payment in full.
p. Such further or other orders as this Honourable Court may deem fit and just to grant in the circumstances, in order to uphold the Constitution, enforce accountability, and protect the public interest.
2. The petition is premised on grounds on the face thereof and supported by an affidavit sworn on even date. The petitioner states that the respondent was the acting Managing Director and Chief Executive Officer of the Kenya Electricity Transmission Company Limited (KETRACO) and as such bore overall executive authority, supervisory control and ultimately responsibility over all human resource decisions, disciplinary processes and administrative actions undertaken by KETRACO.
3. It is stated that on or 19 th September 2025, under his authority, KETRACO issued a letter referenced KET/5/1A/10013/kk/lck, purporting to send Eng. Antony Tawayi Wamukota, a senior employee of the corporation, on a three (3) month compulsory leave. That Eng. Antony Tawayi Wamukota was aggrieved and therefore filed a constitutional petition before the Employment and Labour Relations Court (ELRC), challenging the legality, constitutionality, and procedural propriety of the Respondent’s actions. In a judgment delivered on 17 th December 2025, the Court made definitive findings condemning the actions of KETRACO undertaken under the leadership of the Respondent.
4. It is averred that the Court declared that the three-month compulsory leave imposed on Eng. Antony Tawayi Wamukota was irregular, unprocedural, illegal, and unconstitutional, and therefore null and void ab initio. The Court further issued a mandatory order directing KETRACO to unconditionally revoke the compulsory leave and to allow the immediate resumption of duty by the affected officer.
5. It is further asserted that the Court also revoked and nullified the Respondent’s letter dated 19 th September 2025 and restrained the Respondent and KETRACO from terminating or otherwise interfering with the employment of the affected officer on the basis of the illegal compulsory leave, and found that the Respondent’s actions amounted to double jeopardy, rendering him functus officio in the matter and that the Court condemned the Respondent’s conduct by awarding costs against KETRACO.
6. The petitioner contends that the Judgment and Decree of the Court remain valid and constitute a judicial determination that the Respondent presided over and implemented an unlawful, arbitrary, and unconstitutional employment regime within a critical State Corporation. He asserts that the Respondent’s actions demonstrate a blatant disregard for the rule of law, judicial authority, and constitutional safeguards governing fair labour practices and administrative justice. Further that by the compulsory leave, the Respondent abused his office, undermined institutional integrity, and exposed a culture of impunity and executive excess at KETRACO.
7. According to the petitioner, the respondent’s conduct violated the provisions of articles 10, 41, 47, 73 and Chapter Six of the Constitution, sections 4 (1), 4(2) and 4(3) of the Fair Administrative Action Act, 2015 and the Employment Act, 2007. Further that unless restrained by this Court, the Respondent’s continued stay in office poses danger to constitutional governance, lawful administration, and the rights of employees and citizens who interact with KETRACO.
Responses to the petition.
8. In response, the 1 st respondent and 1 st interested party filed replying affidavit sworn by Eng. Kipkemoi Kibias on 2 nd April 2026 and preliminary objection dated 21 st March 2026 opposing the petition on several grounds.
The preliminary objection
9. The preliminary objection is predicated upon the grounds that the petition offends the doctrines of exhaustion and constitutional avoidance by virtue of the provisions of sections 11(1) (d), (e) and (f) and Part IV of the Ethics and Anti-Corruption Commission; section 60, 62(1) (f) and 62(2) of the Public Service Commission Act; and sections 9(2) and (4) of the Fair Administrative Actions Act, 2015.
Replying affidavit
10. The respondent swore a replying affidavit on 2 nd April 2026 on his own behalf and on behalf of the 1 st interested party in which he deposes that he assumed the office of the Managing Director of the 1 st interested party in an acting capacity on 19 th September 2025. That prior to his appointment, the 1 st interested party had commenced and set in motion a disciplinary process against one Eng. Antony Tawayi Wamukota.
11. It was deposed that sometimes in 2023, KETRACO tendered for provisions of long haulage transport services and heavy-duty handling equipment under tender No. KETRACO-ST-006-2023. That upon completion of the tender evaluation exercise, Elsogom Limited emerged as the successful bidder and was consequently awarded the tender at a total contractual sum of Kshs. 9,538,500.
12. According to the respondent and 1 st interested party, that the award was communicated through letter of intent dated 10 th July 2023 and the subsequent execution of a formal contract between KETRACO and Elsogom Limited upon expiry of 14 days from the date of issuance. He explains that the subject tender concerned the provision of long-haul transport services and heavy-duty handling equipment for the transportation of two transformers; 90/110 MVA and 18/23 MVA, from the port of Mombasa to Kitale and Ortum respectively.
13. It is contended by the respondent and 1 st interested party that nnotwithstanding KETRACO’s stipulation of the conditions governing the implementing of the award, Eng. Anthony Tawayi Wamukota approved a memo dated 20 th July 2023 authorizing officers to travel to Mombasa to supervise the loading of the subject transformers, thereby initiating their transportation. That consequently, Elsogom Limited proceeded to load the transformers from the CFS Console Base at Terminal 2, operated by Ken freight Limited for transport to Ortum and Kitale substations, notwithstanding that a formal contract had not yet been duly executed and prior to the expiration of the 14 days stipulated in the letter of intent to award.
14. That KETRACO’s management learnt of the occurrence of the scenarios described herein above and initiated investigations by issuing a notice to show cause letter dated 1 st December 2023, to Eng. Antony Tawayi, by the then Managing Director of KETRACO.
15. That Eng. Wamukota offered no reply and instead instituted proceedings before the Employment and Labour Relations Court through Petition No. E213 of 2023, seeking to stay the Notice to Show Cause but that upon final determination of the matter on 8 th April 2024, no such orders were granted.
16. The respondent and 1 st interested party narrate that on 18 th January 2024, Eng. Wamukota submitted a response in respect of an investigation being undertaken by the Manager, Security Services, wherein the said Manager sought to ascertain his role in the tender for long haul transport services and heavy-duty handling equipment for the two transformers destined for Ortum and Kitale.
17. That the Board of Directors, KETRACO reviewed Eng. Wamukota’s response dated 18 th January 2024 and found it to be unsatisfactory and a communication was made through their letter dated 24 th April 2024 issued by the then Managing Director, Dr. Eng. John Muoki Mativo and consequently, Eng. Wamukota was summoned to appear for a disciplinary hearing. It is deposed that Eng. Wamukota responded through response dated 30 th April 2024 and he underwent a disciplinary hearing on 13 th May 2024 in accordance with the Section 11 of the company’s Human Resource Policy and Procedures Manual, 2019 and the Employment Act,2007. That upon review of the response and upon deliberations of the Board it was determined that he be cautioned. He was thus cautioned through a letter dated 7 th June 2024.
18. The respondent and 1 st interested party states that following a resolution of the Board of Directors at its meeting held on 18 th September 2025, new information relating to the tender for transportation of the two transformers was discovered, in which Eng. Wamukota was implicated. Eng. Wamukota was accordingly placed on compulsory leave pursuant to the Board’s resolution of 18 th September 2025; the said decision was expressed by the letter dated 19 th September 2025 to allow for investigations.
19. It is thus asserted that the respondent was accordingly wholly uninvolved in the disciplinary proceedings concerning Eng. Tawayi Wamukota from their inception, through the issuance of any caution, to the 1 st interested party’s determination to place him on compulsory leave. Further that the respondent’s act of issuing the letter dated 19 th September 2025, by which the 1 st interested party’s decision was formally communicated, fell within the ambit of his authority by virtue of section 17.1 of KETRACO’s Human Resource policy and Procedures Manual.
20. The respondent and 1 st interested party contend that the entire investigations involved the whole procurement architecture from the user department, the supply of chain management and ultimately to the Office of the Managing Director. Peter Njehia, a then Senior Supply Chain Manager, was suspended through letter dated 28 th May 2024 and later dismissed for contravention of Part IV section 2 (iii) (a)and (s) of the Company Code of Conduct, Section 11 Part 11.7 (iii) (a) and (r) of the Company Human Resource Policy Procedures Manual as well as section 44 (4) of the Employment Act. That nother officer from the supply chain management department, one Collins Rono was processed through Human Resource Advisory Committee and was punished with a warning letter and increment deferred for a period of 1 year. One Eng. Evans Papa, received a warning letter and his annual increment deferred for a period of one year. Further, that the then Managing Director Dr. Eng. John Muoki Mativo, was also subjected to disciplinary proceedings culminating in his dismissal on 18 th September 2025.
21. Further, that disciplinary proceedings were also instituted against the then Accounting Officer and Head of Procurement, Prisca Kubasu, with a show cause letter dated 8 th December 2023 and eventual dismissal on 2 nd September 2024. Prisca Kubasu challenged her dismissal through ELRC Petition E 143 of 2024 where the Court in its judgment struck out the petition directing recourse to the Public Service Commission.
22. There after, that the Public Service Commission, in PSC State Corporations Appeal 054 of 2024, upheld the dismissal and through letter dated 12 th July 2025 directed, among others the 1 st interested party to initiate disciplinary proceedings against all officers implicated in the tender process governing the transportation of the 90/110 MVA and 18/23 MVA Ortum and Kitale transformers to the Turkwel Ortum -Kitale Substation.
23. It is stated that the disciplinary proceedings against Eng. Wamukota were informed solely by information received by the 1 st interested party, arising from the subtleties and intricacies embedded within the tender process, up to the moment when Elsogom Limited loaded the transformers from the CFS. That therefore, the subsequent investigations, which informed the decision to place him on compulsory leave, were undertaken wholly in faithful adherence to and in furtherance of the directive issued by the Public Service Commission. The compulsory leave was therefore a lawful and necessary interim measure pending the forensic investigation mandated by the PSC, and not a punitive sanction itself.
24. It is asserted that considered together with Clause 11.2 of the Company’s Human Resource Policy and Procedures Manual, 2019 which vests oversight of employees in Grades KETI-KET4 with the Board, and all others with the Human Resource Advisory Committee, the pattern of conduct exhibited by the 1 st interested party demonstrates that the disciplinary process were fair, anchored in legitimate concerns and executed with impartiality and integrity noting that in the case of Prisca Kubasu, her dismissal was upheld by the PSC.
25. Accordingly, it is averred that no malice, corrupt intent, or personal interests can be ascribed to the 1 st interested party or the respondent. In the circumstances, by communicating the 1 st interested party’s resolution of 18 th September 2025, the respondent acted within the bounds of his assigned duties under section 17.1 of KETRACO’s Human Resource Policy and procedure Manual. The 1 st interested party equally discharged its responsibilities in line with 11 of the same Policy.
26. It is stated that based on the foregoing, the respondent did not have a hand in Eng. Wamukota’s disciplinary process. Further, that the issues arising from the board’s decision were adjudicated by ELRC in Petition E 185 of 2025 wherein the court sitting in its constitutional jurisdiction, granted remedies to him as the full and final legal consequence of the Boards decision. Hence fully exhausted and the issue is moot.
27. It is contended that the petition therefore amounts to an abuse of the court process; the decision to place Eng. Wamukota on compulsory leave was undertaken exclusively to enable a fair, transparent and unhindered investigative process and pursuant to Regulation 62(3) of the Public Service Regulations and clause 11.13 of the company’s Human Resource Policy and Procedures Manual 2019. They urge the court to give effect to the doctrine of exhaustion of administrative remedies.
2 nd interested party’s response
28. The 2 nd interested party EACC opposed the petition through grounds of opposition dated 16 th February 2026. It is contended that the 2 nd interested party is empowered pursuant to the provisions of Chapter Six of the Constitution of Kenya; the Anti-Corruption & Economics Crimes Act, 2023; Ethics & Anti-Corruption Commission Act, 2011 and Leadership and Integrity Act, Cap 182 Laws of Kenya to investigate the conduct of any person and/or body which is its opinion constitutes corruption, economic crime and unethical conduct.
29. It is stated that pursuant to article 79 of the constitution, the 2 nd interested party is vested with the mandate to investigate corruption, economic crimes and unethical conduct. Section 11 (1) (d-(f) EACC Act mandates it to investigate allegations of breaches of Codes of conduct; recommend appropriate actions to be taken against state officers or public officers alleged to have engaged in unethical conduct and oversee the enforcement of codes of ethics prescribed for public office.
30. In addition, that the 2 nd interested party is bestowed the responsibility of overseeing and enforcing the implementation of LIA pursuant to section 4(2) Leadership and Integrity Act which includes the mandate to inquire into and investigate allegations of breach of code of ethics upon receipt of a complaint or on its own motions under section 42 (10).
31. The 2 nd interested party contends that the petitioner has not demonstrated to this court that prior to the filing of this petition, the 2 nd interested party was without any proper or justifiable reason failed or refused to investigate such complaints to warrants the issuance of the orders sought to compel it to investigate the respondent.
32. Further, that the petitioner has not presented factual or substantial claim, controversy or dispute that has arisen between himself and the 2 nd interested party which calls for adjudication before this court. Similarly, that no acts or omission attributed to the 2 nd interested party, have been disclosed by the petitioner which are in violation of likely to be in violation of any part of the Constitution.
33. It is thus contended that granting the order sought against the 2 nd interested party would contravene article 249 (2)(b) of the Constitution and section 28 of the Ethics and Anti-corruption Act.
3 rd interested party’s response
34. The 3 rd interested party did not file formal repose to the petition.
Petitioner’s submissions
35. The petitioner in his submissions dated 3 rd February, 2026 argues that by exercising public power in a manner that was subsequently invalidated by a court of law, the respondent acted in defiance of the rule of law, undermined accountability, and offended the national values and principles of governance enshrined under Article 10 of the Constitution.
36. The petitioner contends that the ELRC expressly held that the compulsory leave had no legal basis and could not stand in law. This finding, the petitioner argues, demonstrates that under the respondent’s leadership, KETRACO was administered in a manner that institutionalized illegality, thereby exposing employees to arbitrary and unlawful labour practices in direct violation of Article 41 of the Constitution.
37. The petitioner submits that the respondent’s decision failed to align with the requirements of article 47 of the Constitution. That there was no notice, no hearing, no lawful justification and no procedural compliance. He places reliance on the Court of Appeal decision in Judicial Service Commission v Mbalu Mutava & another [2015] eKLR where it is said that the Court emphatically held that Article 47 constitutionalizes administrative justice and renders invalid any administrative action taken without adherence to due process.
38. The petitioner asserts that Article 73 of the Constitution demands that authority assigned to a state officer be exercised in a manner that brings honour to the nation, promotes public confidence, and is consistent with the purposes and objects of the Constitution. Further, that a state officer whose actions are judicially condemned, revoked, restrained, and penalized through an award of costs cannot be said to have exercised authority honourably or in a manner that promotes public confidence.
39. The petitioner maintains that judicial nullification of executive action is the clearest and most objective evidence that constitutional trust has been breached. That the respondent’s conduct therefore violated Articles 10, 41, 47, and 73, and triggered the integrity implications contemplated under Chapter Six of the Constitution.
40. As to whether the respondent meets the Chapter Six integrity threshold to hold public office, the petitioner relies on the decision in Trusted Society of Human Rights Alliance v Attorney General & 2 others [2012] eKLR , and International Centre for Policy and Conflict & 5 others v Attorney General & 4 others [2013] eKLR for the proposition that the respondent’s integrity must be evaluated against the undisputed fact that a court of law found that he presided over and implemented an unconstitutional employment regime, abused administrative authority, and subjected a public institution to judicial censure.
41. The petitioner submits that a state officer who authorizes or permits illegal administrative action, ignores due process and exposes a state corporation to adverse judicial findings and costs cannot be said to exemplify integrity, accountability, or selfless service as required under Articles 73 and 75 of the Constitution.
42. The petitioner therefore urges this Court to find that a state officer whose actions have been judicially declared illegal and unconstitutional cannot satisfy the integrity threshold required under Articles 73 and 75, and is unfit to continue holding public office without undergoing lawful accountability and vetting mechanisms.
43. The petitioner cites the provisions of Articles 22, 23 and 165 (3) (b) of the Constitution and the decisions in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR, Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR and Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others for the submission that this court has jurisdiction to hear and determine the instant petition and that the petition raises constitutional questions concerning: abuse of public office, breach of Articles 10, 41, 47, 73, and Chapter Six, and continued occupation of public office in the face of judicial findings of unconstitutionality.
The Respondent and 1 st interested party’s submissions
44. In their joint written submissions, the respondent and the 1 st interested party rely on the locus classicus on a preliminary objection and jurisdiction of the Court as was settled in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696; Vincent Mwanthi Kioko v Edward Sigei & 4 others [2021] KEHC 3947 (KLR); Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR and Samuel Kamau Machaira & another v Kenya Commercial Bank Limited & 2 others [2012] KESC 8 (KLR) for the propositions that the present objection fall’s within the well settled Mukisa Biscuit yardstick.
45. It is submitted the petition is cast as a Chapter Six and public service ethics grievance hence, the petitioner should have exhausted the alternative dispute resolution mechanisms stipulated under section 11(1) (d), (e) (f) and 13(2) (c) of the Ethics and Anti-Corruption Commission Act; section 4(2) of the Leadership and Integrity Act and sections 60, 62(1) (f) and 62(2) of the Public Service Commission Act, before invoking this court’s jurisdiction. Reliance is placed on the cases of Agoro & 2 others v Ethics & Anti-Corruption Commission & 4 others [2024] KEHC 7955 (KLR); Agoro & 2 others v Orengo & another; Oduol & another (Interested Parties) [2023] KEHC 25200 (KLR) and Speaker of the National Assembly v James Njenga Karume [1992] KECA 42 (KLR).
46. The respondent and 1 st interested party contend that while the petitioner relies on Article 47 of the Constitution, the rights under that Article are implemented through the Fair Administrative Action Act and that under section 9(3) and 9(4) of the Act, the petitioner was required to first exhaust the available statutory remedies or obtain an exemption. They argue that since no exemption had been sought, the petition is premature.
47. They further argue that the petitioner has improperly framed an employment and administrative dispute as a constitutional matter. Relying on Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others , the respondent and 1 st interested party contend that the dispute should first be addressed through the relevant statutory mechanisms. They submit that allegations relating to Chapter Six should be pursued under the relevant legislation, including the EACC Act, the Leadership and Integrity Act, the Anti-Corruption and Economic Crimes Act, and applicable codes of ethics, while public service personnel matters should first be handled under the Public Service Commission Act.
48. Further reliance is placed on Agoro & 2 others v Ethics & Anti-Corruption Commission & 4 others and Muthinja & another v Henry & 1756 others [2015] KECA 304 (KLR) . They refute the petitioner’s claims that he has pleaded or demonstrated any exceptional circumstances to justify bypassing the established statutory architecture. It is argued that the invocation of Articles 22 and 258 of the Constitution does not displace jurisdictional discipline and that public interest litigation remains tethered to ripeness, exhaustion and constitutional avoidance.
49. The respondent and the 1 st interested party rely on the case of Matemu v Trusted Society of Human Rights alliance & 5 others [2013] KECA 445 (KLR) where the court stressed that allegations of want of integrity require cogent and tested evidence. They contend that the petitioner seeks a declaration that the respondent is unfit for office without a concluded investigation by the EACC, without exhausting the Public Service Commission's disciplinary process and without any conclusive evidence linking the respondent to the alleged misconduct. They therefore submit that this court is being asked to make a finding of unfitness prematurely and in the absence of the certainty required by law.
50. The respondent and the interested party wholly reiterate the averments in their replying affidavit and maintain that the respondent’s role was administrative in nature. That by communicating the 1 st interested party’s resolution of 18 th September 2025, the respondent acted within the bounds of his assigned duties under section 17.1 of KETRACO’s Human Resource Policy and Procedures Manual. In addition, that the 1 st interested party executed its obligations within the dictates of section 11 of the same Policy.
51. They maintain that the issues arising from the Board’s decision to place Eng. Antony Tawayi Wamukota on compulsory leave were adjudicated by the ELRC and remedies were granted as the full and final legal consequence of the Board decision. Therefore, they argue, that any further ventilation of the same substratum of facts amounts to an abuse of the process of this Court. They further submit that the substratum of the petition is spent and therefore moot.
52. The respondent and 1 st interested party submit that no liability can attach to the respondent for the 1 st interested party’s resolution, his role having been confined to the lawful communication thereof under the governing legal and policy framework. It is reiterated that the placement of Eng. Wamukota on compulsory leave was a measured and lawful step taken to secure unfettered investigative process in line with Regulation 62(3) of the Public Service Regulations and Clause 11.13 of the KETRACO Human Resource Policy and Procedures Manual, 2019.
The 2 nd interested party’s submissions
53. the 2 nd interested party submits that it is mandated to inves
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