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Court approves Bill Lay appointment as Portland chair

20 February 2014, 17:57 Victor Tinto

Nairobi - The High court has approved the appointment of Bill Lay as chairman of the East African Portland Cement Company.

Lay had been barred from office Monday by High court judge Mumbi Ngugi, who stated that his appointment was improper since there was a court order stopping appointments to the position in place.

Mark Karbolo, the previous chairman had moved to court the previous week and secured an order quashing President Uhuru Kenyatta’s earlier decision to sack him through a special gazette notice.

“In the interest of the company neither Mr Mark Karbolo nor Mr William Lay exercise the power of the Chairman of the Board of Directors of the East African Portland Cement Ltd pending the ruling of this court in February 2014,” read the court order.

But in a ruling Thursday, the judge threw out Karbolo's plea to remain in office, saying president Uhuru Kenyatta had express powers to appoint the chairman of the body and that there was nothing wrong with the procedure taken in revoking his appointment.

While dismissing the case filed by the former board’s chair Mr Mark Karbolo’s on behalf of the Cement Company,  judge Ngugi said the case was a mere reaction to the President’s appointment in pursuit of his own interests not the company.

“I find that the President has powers in appointing a board Chair or director of a state corporation or revoking both, Mr Karbolo clearly intended to protect his personal interests which would have been better for him to find an appropriate forum to discuss his removal from  office,” said judge Ngugi.

The judge ordered that Mr Karbolo’s caters for the costs of the suit and not the Cement Company.

In the suit, EAPCC has sued the Capital Markets Authority, the Attorney General and the National Social Security Fund challenging the presidential appointment of the former CMC boss Mr Lay.

The suit follows the suspension of the resolution of a December shareholder meeting which included confirmation of books of account, election of directors and payment of dividends.

Mr Karbolo had argued that Mr Lay was defeated in the government’s quest to have him become a director of Portland Cement in last December’s AGM by Mr Didier Tresarrieu, whose appointment has been frozen.

Mr Karbolo also argued that the President had overstepped his mandate in sending him home yet there was a court order in place saying the composition of the Portland board should be left as it is.

Court had earlier ordered that the board’s chair office should temporarily not be resumed by either of the two.

The government represented by CMA, the AG and the NSSF, insisted that the powers acted within his mandate and that Mr Karbolo should have instead sought for damages.

Mr Karbolo’s ouster, announced in a special gazette notice temporarily gave the government control of the cement firm’s board but set the stage for the court battles.

The President dipped into EACC’s board wrangles by replacing Mr Karbolo with Mr Lay with regards to his powers  as in the State Corporation Act.

Had Mr Karbolo succeeded, President Uhuru’s decision to fire Mr Karbolo would have tilted the Portland board in favour of the government, which allegedly has been trying to take control of the cement firm’s boardroom dominated by Lafarge-allied directors.

Karbolo had been sacked due to what the government described as under-performance at the firm.

Lay's ascention to office will thus pave the way for a number of structural changes, with the government set to try lift the struggling cement producer which lies behind Bamburi cement as the second biggest producer.

It is also expected that current CEO Kephar Tande will be shown the door after a number of high profile scandals took place under his watch.

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