Three petitioners have gone to court seeking to have the appointment of Waqo Dulacha Ejersa as chief executive of the Kenya Medical Supplies Authority (Kemsa) revoked, saying he is unfit to hold public office.

In a petition filed at the Employment and Labour Relations Court, Nakuru-based doctor Magare Gikenyi, activist Dishon Keroti Mogire, and Philemon Abuga Nyakundi argue that Waqo’s appointment was unconstitutional and violated leadership and integrity laws.

They accuse him of running for political office while still serving in the Ministry of Health and later returning to public service without following due process.

The petitioners claim Waqo, who has been a public servant since 1996, contested for the Saku Constituency parliamentary seat in Marsabit County during the 2022 General Election on a Jubilee Party ticket without resigning from his position, as required by the Constitution.

He lost the election but allegedly resumed his duties at the ministry “quietly or otherwise” before being promoted to Senior Deputy Director of Medical Services in August 2024.

“He was a civil servant. He contested for an MP seat in Saku Constituency under Jubilee Party without resigning as required by law,” says Magare. “That alone disqualifies him from any future appointment in public service. It’s not a technicality, it’s a constitutional breach.”

Article 99(2) of the Constitution and sections of the Leadership and Integrity Act require public officers seeking elective posts to resign at least six months before the election.

Gazette Notice No. 7995 of June 30, 2022, listed Waqo as a candidate, but the petitioners say there is no evidence he resigned.

“He flouted the law, lost the election, and went back to the Ministry of Health through the backdoor,” Magare adds. “Now he’s been handed the top job at Kemsa, how can we speak of integrity in public service?”

The petition also questions the legality of the Kemsa board’s appointment process. Court documents show that following interviews on June 28, 2024, the board shortlisted three candidates: Andrew Mutava Mulwa, Waqo, and Hussein Adan Mohammed.

The then Health Cabinet Secretary, Susan Nakhumicha, endorsed Mulwa and sought concurrence from the Head of Public Service on July 9, 2024.

However, after the Cabinet was dissolved on July 11, 2024, the board allegedly bypassed the CS’s choice and directly appointed Waqo through a letter dated July 23, 2024.

The petitioners term this move illegal, saying it amounted to a usurpation of the Cabinet Secretary’s powers.

“This is a textbook case of constitutional violation and institutional failure,” says Nyakundi. “Kemsa, the Ministry of Health, the Public Service Commission, all these bodies failed in their due diligence.”

The case lists 11 respondents, including Waqo, Kemsa, the Ministry of Health, the Public Service Commission, the Ethics and Anti-Corruption Commission, and the Attorney General.

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

The petitioners are asking the court to declare Waqo’s appointment null and void, arguing it contravened 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.

They also want a declaration that his return to the ministry and subsequent promotion were illegal, and for various public bodies to be held accountable for enabling or failing to stop the appointment.

“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,” Magare says.

The petition further accuses the Kemsa board of carrying out irregular administrative restructuring, including creating positions such as “Officer, Board Secretariat” without statutory authority.

In response, Waqo and other respondents have filed preliminary objections, saying the case is time-barred. They cite provisions under Order 53 Rule 2 of the Civil Procedure Rules, the Law Reform Act, and Rule 6 of the Fair Administrative Action Rules, which set time limits for filing such cases.

The matter is awaiting hearing.