The 50 newly appointed chief administrative secretaries (CASs) suffered a blow on Friday, when the High Court stopped them from assuming office pending determination of a suit against the move by President William Ruto.
According to the interim order given by Justice Hedwig Ongu’ndi, following a case filed by the Law Society of Kenya (LSK) and Katiba Institute, the CASs are also barred from earning any salary, remuneration and any benefit.
The CASs were sworn-in on Thursday after the National Assembly failed to vet the nominees, citing the lack of constitutional authority to carry out the exercise.
In court on Friday, after reading the documents filed by the petitioners, Justice Ongu’di said she was “satisfied that interim conservatory orders are necessary”.
“I have equally read the supporting affidavits and annexures and I am satisfied that this is a very urgent matter and of great public interest,” said Justice Ong’udi, sitting at the Human Rights and Constitutional division in Milimani, Nairobi.
At the time the court issued the orders, the CASs were on their first day in office, having been appointed on Thursday.
Urging the court to issue the interim orders, the LSK and Katiba Institute, through lawyers Dan Oino Okemwa and Eric Theuri, told the court that the appointment of the 50 CASs was unconstitutional.
They contended that though the Public Service Commission (PSC) had approved President Ruto's appointment of 23 CASs, he went ahead and appointed 50. This, the lawyers said, meant that his decision to create additional 27 positions in the office of CAS was unlawful.
“The President, on September 19, 2022, vide a letter written by the Executive, requested the PSC to create 23 CAS positions in the public service, pursuant to Article 134(a) of the Constitution, which request was processed by PSC including conducting public participation,” said lawyer Okemwa.
He added that the request was approved by the Employment and Labour Relations Court in a petition that was challenging creation of the office. The court established that the PSC had complied with the law in establishing the office.
“On October 11, 2022, the Head of the Public Service Commission communicated to the PSC that the President had accepted its recommendations to create 23 positions in the office of the CAS and requested the PSC to commence the process,” said Mr Okemwa in the application for interim orders.
He argued that the additional 27 offices were created outside the Constitution as the President has no powers to establish office in the public service except in accordance with recommendations of PSC.
“This petition seeks to examine the powers to create office in the public service and whether the President can disregard the recommendations of the PSC by dint of the provisions of Article 132 of the Constitution,” stated Mr Okemwa.
He added that Dr Ruto, having accepted the recommendations of the PSC to establish 23 positions, cannot turn around and “unilaterally create an additional 27 offices in the public service”.
The case will be mentioned on March 28, 2023 at noon alongside another filed by rights activist Eliud Karanja Matinda over the same appointments.
The petitioners have sued the President and the PSC, who are the respondents in the case, while the 50 CASs are listed as interested parties.
Among those appointed by President Ruto are poll losers Evans Kidero, Catherine Waruguru, Wilson Sossion, Millicent Omanga, Khatib Mwashetani, Charles Njagua, Isaac Mwaura, Chris Wamalwa, Bishop Margaret Wanjiru and Joash Maangi.
