Chief Justice (CJ) Martha Koome has reconstituted a three-judge bench she established recently to determine petitions filed against President William Ruto's decision to appoint 50 Chief Administrative Secretaries (CAS).
In the reconstituted bench, the CJ has removed Justice John Onyiego and replaced him with Justice Aleem Visram.
Judge Onyiego sits at the High Court in Garissa while Judge Visram sits at the High Court in Milimani Civil Division.
The other judges in the bench are Kanyi Kimondo (from the Criminal Division) and Hedwig Ong’udi (Constitutional and Human Rights Division).
The court's deputy registrar (Constitutional & Human Rights Division) Tessy Marienga has since notified the parties in the dispute about the changes in the bench composition.
She also informed them that the case will be mentioned virtually on April 28, 2023 for directions. Justice Kimondo will be the presiding judge in the bench, the notice indicates.
Among the issues the bench is tasked to deal with is powers of the President to establish offices in the Public Service.
The issue is whether the said powers are limited and whether advise of the Public Service Commission to the President is legally binding.
The case involves two petitions filed last month contending that the President appointed 27 additional Chief Administrative Secretaries (CASs).
Basis of their contention is a claim that the Public Service Commission (PSC) had recommended 23 CASs.
The first petition was filed by rights activist Eliud Matindi while the second was by the Law Society of Kenya and Katiba Institute. The court has since issued a temporary order barring the CASs from assuming their respective offices or drawing salaries from public.
The appointees include President Ruto’s allies such as digital communication strategist Denis Itumbi, Benjamin Washiali, Joash Maangi,Victor Munyaka, Catherine Waruguru, Catherine Waruguru, Wilson Sossion, Millicent Omanga, Isaac Mwaura, Dr Chris Wamalwa and Bishop Margaret Wanjiru.
Others are President’s new allies such as Evans Kidero, Rehema Dida Jaldesa and Fredrick Outa.
Also in the list are his old allies like Khatib Mwashetani, Wesley Korir, Charles Njagua and Mary Seneta.
CJ Koome empaneled the bench after the court found that the twin petitions raise substantial issues of law such as powers of the President to appoint persons in the public service.
“This matter is of great public interest because of the economic times we are operating in. Powers of president in public service are questioned. Jurisdiction of court is also challenged. Was this matter prematurely filed, and should the President be struck out from the proceedings?” asked judge Ong'udi when referring the file to the CJ to expand the bench.
Some of the parties in the lawsuit such as the CAS for Information Communication and Technology (ICT) Mr Dennis Itumbi, the Attorney-General, PSC and the Salaries and Remuneration Commission have since questioned High Court’s authority to hear the dispute.
They hold that the dispute falls within the ambit of the Employment and Labour Relations Court. The petitions were filed at the Constitutional & Human Rights Division of High Court.
They add that the petitions involve "total misapprehension and misunderstanding of the Constitution provisions regarding powers of the President".
Lawyer Adrian Kamotho, for Mr Itumbi, argued that there is no known law that caps the number of Chief Administrative Secretaries at 23.
"The number of office holders to recommend is purely within the province of the PSC based on a comprehensive workload analysis among other relevant considerations. The court cannot be invited to render drastic reliefs as sought here on the basis of legally non-binding proposals borne in the correspondence by Mr Joseph Kinyua, former head of public service," said lawyer Kamotho.
"The alleged recommendation by Mr Kinyua requesting for a vacancy declaration of 23 vacancies is a legal misadventure, and is inherently incompatible with Article 234 (2) (a) (ii) of the Constitution which confers upon the PSC unfettered latitude to establish and abolish offices in the public service subject to the Constitution and legislation," he continued.
He added that the petitioners "fraudulently misled the court to issue irregular interim orders, "by cunningly stating that the appointments contravened an unauthenticated letter addressed to the Chairperson of the Public Service Commission by Mr Joseph Kinyua, a former head of public service requesting for a vacancy declaration of 23 vacancies.”
And since the petitioners have sought to freeze the salary, remuneration and benefits of the CASs, he said the petitioners disregarded the fact that upon appointment as Chief Administrative Secretaries, the appointees relinquished their previous roles and enterprises.
"Thus, from all perspectives, the reliefs sought are disproportionate and life threatening since they leave the CASs within the path of danger and without a source of livelihood," said the lawyer.
