Nakuru-based doctor Magare-Gikenyi and two others have filed a petition in court seeking to nullify the appointment of Dr Waqo Dulacha Ejersa as Chief Executive Officer of the Kenya Medical Supplies Authority (KEMSA)

In the lawsuit filed at the Employment and Labour Relations Court, Dr Magare, alongside activist Dishon Mogire and Philemon Nyakundi, wants the court to find that Dr Waqo’s appointment is null and void, alleging that he violated the Constitution by participating in the 2022 General Election as a candidate while still holding a senior role at the Ministry of Health.

According to the petitioners, it is an undisputed fact that Waqo, having been appointed at the Ministry of Health in 1996, failed to resign as required by the Constitution and the law.

He offered himself for election as MP in Marsabit County in the 2022 general elections without relinquishing his public service post.

“He was a civil servant. He contested for an MP seat in Saku Constituency under Jubilee Party (formerly TNA) without resigning as required by law,” says Dr Magare.

According to Magare, that alone disqualifies him from any future appointment in public service because it is not a technicality but a constitutional breach.

Dr Waqo garnered 6,441 votes, coming in second to Col (Rtd) Rasso Dido Ali, and, according to court documents, “quietly or otherwise resumed his duties at the Ministry of Health” after the electoral defeat.

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The petitioners allege that not only was this a violation of the Constitution, it was also a deliberate deception and abuse of office.

The petition cites Article 99(2) of the Constitution, which states that a public officer must resign at least six months before a general election if they intend to run for office.

Gazette Notice No. 7995, dated June 30, 2022, listed Dr Waqo as a candidate, yet there is no public record or evidence of his resignation.

“He flouted the law, lost the election, and went back to the Ministry of Health through the backdoor,” says petitioner Magare.

“Now he’s been handed the top job at KEMSA, how can we speak of integrity in public service?”

According to the petition, Dr Waqo lost the Saku parliamentary race in August 2022, receiving 6,441 votes. Instead of exiting public service permanently as required, he allegedly resumed his role at the Ministry and was later promoted to Senior Deputy Director of Medical Services in August 2024.

Just weeks later, he was appointed CEO of KEMSA, a move the petitioners say is riddled with procedural and legal irregularities.

“This is a textbook case of constitutional violation and institutional failure,” states Nyakundi, the third petitioner.

“KEMSA, the Ministry of Health, the Public Service Commission, all these bodies failed in their due diligence.”

Further, the petition reveals that Dr Waqo was later “rewarded” through elevation to the rank of Senior Deputy Director of Medical Services in 2024 and ultimately appointed CEO of KEMSA by the Board, despite earlier Cabinet-level efforts to appoint another candidate.

Documents attached to the petition show that following an interview conducted on June 28, 2024, the KEMSA Board shortlisted three candidates, Dr Andrew Mutava Mulwa, Dr Waqo Dulacha Ejersa, and Hussein Adan Mohammed.

The then Cabinet Secretary for Health, Susan Nakhumicha, endorsed Dr Mulwa and formally sought concurrence from the Head of Public Service on July 9, 2024, citing satisfaction with the process.

However, following the abrupt dissolution of the Cabinet on July 11, 2024, the KEMSA Board is said to have ignored the Cabinet Secretary’s nominee and instead appointed Dr Waqo as CEO through a letter dated July 23, 2024.

The petitioners argue this action was illegal.

“This amounted to a usurpation of the CS’s powers,” the petitioners argue.

“The Board acted ultra vires its mandate and knowingly appointed an individual lacking in personal integrity as defined under Chapter Six of the Constitution.”

The lawsuit lists 11 respondents, including Waqo, KEMSA, the Ministry of Health, the Public Service Commission, the EACC, and the Attorney General.

The Independent Electoral and Boundaries Commission (IEBC) has also been named as an interested party for having cleared Waqo to run in 2022 without ensuring compliance with Article 99.

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The petitioners are seeking the court’s intervention to nullify Dr Waqo’s appointment, arguing that the appointment contravened provisions of multiple laws, including Section 8(2)(d) of the KEMSA Act, Sections 23 and 24 of the Leadership and Integrity Act, and Section 15 of the Election Offences Act.

“This is not a personal war. It is about defending the Constitution. Public officers cannot pretend to serve while eyeing political seats. That’s deception, and it erodes the integrity of public service,” Dr Magare states.

Additionally, the petition accuses the KEMSA Board of engaging in unlawful administrative restructuring, including the irregular creation of positions such as “Officer, Board Secretariat” without statutory basis.

“The Constitution, especially Chapter Six, demands integrity, transparency, and accountability,” said Mogire. “You cannot sanitize illegal conduct by simply giving it time.”

In response, Dr Waqo and several respondents have filed preliminary objections arguing the case is time-barred.

They rely on provisions under Order 53 Rule 2 and the Law Reform Act, as well as Rule 6 of the Fair Administrative Action Rules, which limit the timeframe for seeking judicial review to six months or six weeks, respectively.

The petition is pending hearing.