A fresh legal battle has landed before the Employment and Labour Relations Court after Sheria Mtaani, led by activist Shadrack Wambuli, filed a judicial review application seeking to stop the government from allowing newly appointed members of the Privatization Commission to assume office.
In the urgent application, Sheria Mtaani argues that the seven commissioners appointed through Gazette Notice No. 5054 of 25th April 2023 were unlawfully handed a three-year term, despite the Privatization Act prescribing a one-year term for such appointments. Wambuli says the decision violates the clear provisions of the law and gives the appointees undue advantage. 
The court papers show that the impugned Gazette Notice placed the commissioners on a renewable three-year tenure, which the applicant insists is inconsistent with Section 6(1) of the Privatization Act. The Act requires the chairperson and members of the commission to serve a one-year term, creating what the applicant describes as a blatant disregard of the statute. 
Wambuli further argues that letting the commissioners assume office while the issue is unresolved would amount to endorsing an illegality. The application asks the court to issue orders of prohibition, certiorari, and mandamus compelling the Cabinet Secretary for Treasury to align the appointments with the law.
He also warns that unless the court acts swiftly, the commissioners may begin executing their roles potentially making decisions that could later be invalidated thereby exposing the public to unnecessary legal and financial risk.
The case has been marked as extremely urgent, with the applicant asking the court to prioritize it, arguing that public interest is at stake and that continued occupation of office under an irregular term would erode adherence to statutory processes. 
The application targets the Cabinet Secretary for the National Treasury and the Attorney General as respondents, while the seven commissioners including Edward R. Kobuthi, Irene Njeri Wanyoike, Celine Anyango Orata, David J. O. Nyakang’o and Wellington Pakia Godo are listed as interested parties.
Judge Byram Ongaya has directed that the application be served immediately, with the case set for inter partes hearing or further orders on December 9 at 9:30am.
The court noted that the matter will proceed as soon as it is reached on the cause list, including via video link.
In a notable shift, the judge urged all parties to explore an out-of-court compromise guided by Sections 5 and 6 of the Privatization Act, 2018.
He encouraged the parties to consider arriving at a consent on the next mention date, saying this would allow a just, proportionate, and expeditious resolution of the dispute.
