NAIROBI, Kenya Sep 10 – The Employment and Labour Relations Court has certified as urgent a case challenging the appointment of James Mworia as the first chief executive officer of the National Infrastructure Fund, paving the way for an expedited hearing of the dispute.
Justice Stella Chemtai Rutto, in an order issued on September 9, directed that the case be heard during the court recess after the petitioners raised concerns over the circumstances surrounding Dr Mworia’s appointment.
The court directed Javan Onyango and Emmanuel Kiplagat, the petitioners, to serve the application on the respondents, who have been given seven days from service to file and serve their responses.
The matter will come up before the trial court on September 21 for further directions and orders.
The petitioners have also asked the court to temporarily suspend Dr Mworia’s appointment and restrain him from exercising the functions of CEO pending the determination of their case.
The petitioners’ claim that Mworia was appointed while he was still a sitting independent director of the six-member Board of the Fund the same Board that selected him for the CEO position.
The petitioners describe this as an apparent conflict of interest that raises questions about the integrity and fairness of the recruitment process.
“A sitting Board member competing for a post the same Board was constitutionally and statutorily bound to fill impartially discloses, on the face of the public record, an apparent conflict of interest and gives rise to a reasonable apprehension of bias,” they argue in court papers.
They want the court to establish whether Mworia disclosed his interest and refrained from participating in deliberations or voting on the appointment as required under Section 16 of the National Infrastructure Fund Act, 2026.
Questions over recruitment process
The petitioners have also questioned the period given to applicants to apply for the CEO position.
According to their pleadings, the advertisement was published around July 13 or 14, shortly after the Fund’s Board was constituted, with applications closing on July 31.
This amounted to only about 17 to 18 days, they say.
They have also raised concerns over requirements for shortlisted candidates to produce clearance certificates from the Kenya Revenue Authority, Higher Education Loans Board, Ethics and Anti-Corruption Commission, Directorate of Criminal Investigations and a registered Credit Reference Bureau.
The petitioners contend that the short application window, coupled with the clearance requirements, could have disadvantaged potential applicants.
They further complain that neither the Board nor the National Treasury published the names of applicants or shortlisted candidates.
“The complete failure to publish any list of the candidates who applied for the position of Chief Executive Officer, or any shortlist of those who progressed to the interview stage, denied the Kenyan public any opportunity whatsoever to scrutinise whether any candidates applied, who those candidates were,” the petitioners state.
They argue that the absence of a published shortlist also prevented the public from determining whether the recruitment complied with constitutional requirements on gender balance, ethnic diversity and regional representation.
Sh5 trillion mandate
The petitioners say the urgency of the case is heightened by the enormous mandate given to the newly established Fund.
The National Infrastructure Fund was created under an Act assented to on March 9, 2026, with the principal objective of mobilising long-term domestic and international capital for commercially viable national infrastructure projects.
The petitioners say the Fund could mobilise up to Sh5 trillion.
They argue that allowing Mworia to continue exercising the powers of CEO before the recruitment dispute is resolved could expose the public to potentially irreversible decisions.
“Unless this Honourable Court intervenes urgently by way of conservatory orders, the 4th Respondent will continue to exercise the extensive powers conferred upon the Chief Executive Officer under Sections 18, 19 and 22 of the Act over a Fund expected to mobilise Kenya Shillings Five Trillion,” they state.
They claim the appointment process was “competitive only in form and pre-determined in substance”, alleging violations of constitutional principles on transparency, accountability, fair competition and leadership.
The petitioners have contrasted the CEO recruitment with the earlier process used to constitute the Fund’s Board.
They say 78 people applied for Board positions, 16 were shortlisted and interviewed, before six directors were appointed.
According to the court papers, Mworia was among four independent directors appointed to the Board through a Gazette notice dated July 8, 2026.
The petitioners say the Board was therefore only fully constituted days before it advertised the CEO position.
The Fund’s Board subsequently announced Dr Mworia’s appointment on September 7, describing it as the outcome of a competitive recruitment process.
The petition before the court challenges that assertion and seeks orders suspending the appointment.
Justice Rutto’s September 9 order does not determine the merits of the petition but directs that the matter be dealt with on an expedited basis.
The respondents the National Infrastructure Fund Board, Cabinet Secretary for National Treasury and Economic Planning, the Attorney-General and Dr Mworia have seven days after service to respond to the application.
The case will be mentioned on September 21 for further directions.
