vacancies, as well as convene a selection panel for the purpose of selecting suitable
candidates for appointment as chairperson or member of the board.
viii.
The 1st respondent first declared the vacancies on 17th March, 2014 and subsequently they
were re-declared on 3rd April 2014 ostensibly for failure of the 1 declaration to attract the
requisite number of candidates.
ix.
Pursuant to Section 6B (4) the applications for the vacancies were to be forwarded to
selection panel within seven (7) days of the publication of the notice in the Kenya gazette
(3rd April, 2014) that would be 10th April 2014.
x.
However, the 1st respondent for no stated reason advertised the vacancies in website and in
the Newspapers and required applications to be forwarded by the 15th April 2014. This was 5
days post the statutorily set timeline.
xi.
Pursuant to Section 6B (6) of the act the selection panel that was to consider the
applications, shortlist and publish the names and qualifications of the Applicants and those
shortlisted in the gazette and on the official website of the ministry within seven days from
the expiry of the deadline of receipt of applications, this computed to 17th April, 2014.
xii.
The selection panel, however, published the names of the applicants as well as the
shortlisted candidates on the 24th April, 2014 in the Kenya gazette. A copy of the notice to
the effect has been exhibited as BIO9 in the 1st Respondent’s replying affidavit.
xiii.
The applicant’s application for the advertised positions as a nominee for information
communication technology association of (ICTAK) was forwarded for the first via email at
8.59 am on 15th April 2014, but was not delivered.
xiv.
Unrelenting, ICTAK, resent his application for the 2nd time at 12.59 pm on the 15th April, 2014
this time attaching the certificates separately in a bid to beat the server incapacity challenge.
No delivery failure was reported this time.
xv.
That in all instances when his application was sent, the emails were copied to him and he
received both of them immediately and within working hours of 15th April 2014.
xvi.
That the email delivery failure that was reported indicated server incapacity on the part of
the 1strespondent to be cause.
17. From the said chronology, it was his view that the selection process leading to the
appointment of the 2nd to 8th interested parties as members of the 2nd Respondent’s board
were marred by manifest procedural impropriety, illegality as well as irrationality for noncompliance with the statutory timelines as well as the constitutional provisions relied upon.
To him, 1st Respondent in its replying affidavit exhibited emails that were delivered past the
working hours and allegedly out of time in a bid to justify the consideration of his
application. A close scrutiny of the said emails disclosed that even the initial email by ICTAK
forwarding his application at 8.59 am on 15th April 2014, and to which a delivery failure had
been reported, was received by the 1strespondent at 8.23pm while the subsequent emails
forwarding the application and certificates were received by the 1st Respondent at 8.43 pm
and 8.58 pm respectively. The applicant’s view was that the only plausible explanation for
the delay in delivery of the said emails to the 1strespondent, in his experience and
knowledge as an information technology professional was server incapacity following heavy
email traffic leading to the “queuing” of incoming emails by the server and eventual late