The Employment and Labour Relations Court has declared the appointment of Nehemiah Ngetich as Acting Chief Executive Officer (CEO) of the National Biosafety Authority (NBA) unconstitutional, illegal, and void.
In a judgment delivered on December 17, 2025, the court found that Ngetich lacked the statutory and professional qualifications required to lawfully assume or perform the duties of the CEO, whether in an acting or substantive capacity.
The court held that the appointment violated the law and the authority’s own internal governance frameworks.
While interpreting the Interpretation and General Provisions Act, the judge emphasised that a person cannot lawfully perform the duties of a public office unless they are duly appointed in accordance with the law and meet the prescribed qualifications.
“He could not validly and lawfully perform duties of the CEO unless he had been lawfully appointed to act or substantively hold the office of the CEO,” Justice Bryam Onganya observed.
As a result, the court issued a declaration that the impugned appointment of Ngetich as Acting CEO of the National Biosafety Authority was unconstitutional.
"The declaration that the impugned appointment of Nehemiah Ngetich as acting chief executive officer of the national biosafety authority is unconstitutional, illegal, and void ab initio as found herein," the judge ruled.
The court further granted an order of certiorari quashing the appointment.
The case was filed by petitioners Charles Maina Mwangi and William Otieno Onyango through a petition dated July 15, 2025.
They challenged the appointment on the grounds that Ngetich did not meet the minimum qualifications set out in the NBA Career Guidelines, the Human Resource Policy and Procedures Manual (2022), and the relevant statutory provisions governing senior appointments in state corporations.
According to the petitioners, appointing an individual who failed to meet the authority’s own minimum standards amounted to a violation of Article 73 of the Constitution, which sets out the principles of leadership and integrity.
“The appointment of the 12th respondent, who does not satisfy the minimum qualifications set by the authority’s own HR manual, represents a manifest abuse of trust as set out in Article 73,” they argued.
In response, the Public Service Commission (PSC) acknowledged that Ngetich did not meet the qualifications required for appointment as CEO.
The judgment notes that the PSC instead advised that, in the absence of a qualified appointee, the NBA board should assume responsibility for the functions of the office.
The court observed that the board had cited a government moratorium on new recruitments in state corporations earmarked for merger or dissolution as a reason it could not recruit a substantive CEO.
However, it held that administrative or policy constraints could not override constitutional and statutory requirements on appointments.
Among the remedies sought, the petitioners asked the court to direct the commencement of a fresh, open, transparent and merit-based recruitment process for the position of CEO.
The court granted this relief, ordering that any future appointment must strictly comply with the law and applicable policies.
Nehemiah Ngetich has served as acting CEO since July 5, 2024, following the suspension of the former chief executive officer, Roya Mugira.
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