The 50 new Chief Administrative Secretaries have won the first round of a court battle concerning the legality of their appointment after judges declined to admit an amended version of the petition filed by the Law Society of Kenya (LSK) and Katiba Institute.
A three-judge bench rejected a request by LSK and Katiba to allow the amended petition be deemed as properly filed because the petitioners had not complied with court timelines issued earlier.
The bench comprising justices Kanyi Kimondo, Hedwig Ong'udi and Aleem Visram said the case will proceed based on the original petition.
LSK and Katiba were supposed to file the amended version of their petition within three days from March 23, but their advocates filed n April 17, triggering protests by the CASs, who claimed the delay was unreasonable and that the petitioners were also using "tricks in the book" to keep them out of office.
Lawyers of the CASs, led by Dr Adrian Kamotho, also complained that the amendments introduced in the petition were extensive and had changed the "nature and character" of the original lawsuit.
"The petitioners have amended this petition 21 times, changing the content of the petition and its character," explained another defence lawyer, Peter Wanyama.
Mr Kamotho argued that allowing the amended petition would have been prejudicial to the CASs because two of them - Dennis Itumbi and Nicholas Gumbo - filed preliminary objections shortly after the original petition was lodged, and that the amended one would affect the issues they raised against the lawsuit.
The court heard that the petitioners used the objections to address and fix the defects in the case.
Asking the court to allow the amended petition, LSK and Katiba cited public interest in a case that "touches of welfare of Kenyans".
But in its ruling, the court said the petitioners failed to offer a plausible explanation for non-compliance with the timelines.
The bench also observed that since LSK and Katiba had extensively amended their case, allowing the same would have been prejudicial to the CASs, based on existing objections and applications to strike out the case.
"The delay is ill-explained and in the interest of justice, Katiba and LSK do not deserve leave to amend. The consolidated petition will proceed as originally filed," said the court.
It also declined to grant their lawyer, Mr Ochiel, permission to lodge an appeal against the ruling, saying this would delay the case further.
The advocates for the Attorney-General and the Salaries and Remuneration Commission were not opposed to having the amended petition admitted in court. The case is a consolidation of two petitions - the first petition filed by rights activist Eliud Matindi and the second by the LSK and Katiba Institute.
At the same time, the court declined a request by the CASs to set aside the interim conservatory orders that barred them from assuming office although they had been sworn-in.
"The proportionate magnitude is in favour of the public. No prejudice will be there as they (CASs) will be paid their dues in the event the judgment will be in their favour. Noting that this is an urgent matter, the court will offer directions to expedite hearing of the petitions," said the court.
The petitioners are challenging the decision of President William Ruto to appoint 50 CASs when the Public Service Commission had allegedly recommended 23. They want the court to quash the President's decision to create an additional 27 positions.
The gist of the legal dispute is the powers of the President to establish offices in the public service. The issue is whether the said powers are limited and whether the advice of the Public Service Commission to the President is legally binding.
The petitioners sued the President, Attorney-General Justin Muturi, the National Assembly, the Salaries and Renumeration Commission, Public Service Commission, Controller of Budget and all the 50 CASs.
