Attorney-General Justin Muturi has lost the first round of a legal tussle involving Chief Administrative Secretary (CAS) positions in government.
The Labour Relations Court yesterday dismissed Mr Muturi’s objection against a suit filed by the Law Society of Kenya (LSK) challenging the decision of the Public Service Commission (PSC) to create the office.
Mr Muturi, with the backing of the commission, had argued that the court has no powers to determine the issues raised by the LSK “since the petition is not an employment dispute”.
Arguing that the case was being canvased in the wrong forum, Mr Muturi asked the judge to dismiss it.
The AG had also said that it is only the High Court that has powers and authority to determine the legality or otherwise of the actions of President William Ruto in establishing the position.
“The establishment of the office of CAS pursuant to Article 132(4)(a) of the Constitution as read with Section 30 of the PSC Act, 2007 as disputed in the instant petition does not fall within the ambit of the court’s jurisdiction as outlined in Section 12 of the Employment and Labour Relations Court Act as read with Article 162(2) of the Constitution,” the AG said.
But Justice Monica Mbaru ruled that the Labour Court has the requisite powers and authority to determine the dispute as it also relates to the core mandate of the commission, which is an employer.
“The constitutional function(s) of the PSC in addressing, dealing and relating to public service and in regulating the establishment of any office(s) and appointment of persons to hold or act in those offices and to confirm appointments, fall squarely within the mandate of the court,” Justice Mbaru said.
Referring to the Employment and Labour Relations Court Act, the judge said the court was established “to hear and determine disputes relating to employment and labour relations and for connected purposes”.
The court said the petition relates to the mandate of PSC in the establishment and abolition of offices in the public service and in the appointment of persons to hold office or act in those offices.
“Such matters cannot be removed from this court as they are directly related to employment and labour relations and for connected purposes. The process of establishing the CAS office is challenged and the petitioner is before the right forum to argue the case,” ruled Justice Mbaru.
The judge has already barred the commission from continuing with plans to establish the office, pending determination of the suit.
The LSK says the decision to create the office is illegal and will lead to a bloated public wage bill.
The society adds that despite the PSC inviting public views on the establishment of the CAS office, “it intentionally failed to provide crucial information to facilitate informed participation of the people”.
According to Section 27(1) of the PSC Act, the LSK says, the commission failed to provide information on the financial implications of creating the office, functions of the office and a workload analysis.
In addition, the LSK says there is likely to be duplicity of roles between the CAS and Principal Secretaries, “which would further bloat the public wage bill without corresponding improvement of services”.
“As crafted, the Press Release inviting the public to give views on the creation of the CAS position was inadequate to invite informed responses,” the petition says.
“It is unclear on the nature of views the advert intends to elicit as it fails to provide crucial information.”
LSK also bases its opposition to the creation of the CAS office on the status of the country’s economy and financial constraints facing government.
“It is no doubt that the Kenyan economy is struggling, which has caused a financial strain on many citizens and pushed taxation beyond the elastic limit of majority of Kenyans,” the petition says.
“Therefore, the establishment of the said CAS position must conform, and be seen to conform with the principles provided for in Article 201(d) of the Constitution; to the effect that it ensures no duplicity of roles between CAS and Principal Secretaries.”
