The Employment and Labour Relations Court has suspended hundreds of promotions made at the Attorney-General's office last month over claims that some positions were not filled competitively and lack ethnic as well as gender balance.
Justice Byram Ongaya put on hold the promotions as announced by Solicitor-General Shadrack Mose in a memo dated November 26, 2024, pending the determination of a petition filed by Dr Benjamin Magare-Gikenyi.
The judge also gave the Attorney-General’s office and the Public Service Commission (PSC) time to reach a compromise on the promotions, after PSC supported the petition on grounds that some of the positions should have been filled competitively through advertisement.
“Pending the return date, there be stay of implementation of the promotions decisions, conveyed by internal memo dated November 26, 2024, with exceptions as it relates to senior state counsel and information communication technology officer,” said the judge.
Dr Magare-Gikenyi pointed out that of the 15 senior positions filled on November 26, nine are from the same ethnic community while 12 are female.
The positions that were filled include senior deputy solicitor-general (2), deputy solicitor-general (13), chief state counsel (4), deputy chief state counsel (63) and principal state counsel (145). But while only 15 of these are in contention, the court has halted implementation of all the promotions until the case is heard and determined.
His submissions were supported by lawyer Wangechi Gichangi, who said the AG’s office went beyond its scope by filling the jobs without subjecting the process to competitive recruitment.
Ms Gichangi said the PSC had received scores of complaints from officers at the State law office who alleged they were not considered for the promotions.
She said the government will not be able to recover monies paid to the officials if the court finds that the positions were filled illegally. However, she noted that if the process is found to have been procedural, the concerned officers will be compensated.
'Caught up in the transition'
While defending the promotions, State lawyer Oscar Eredi argued that the promotions were done procedurally and that the process “was caught up in the transition de-linking the AG's office and PSC”.
The State noted that following de-linking of the Attorney General’s office from the PSC, the former embarked on the process of promoting officials who had remained in the same positions for long.
“Following the delinking, the AG embarked on the process of operationalisation of the Act in line with the amendments that had been made thereto,” Mr Mose said in an affidavit.
Mr Mose added that one of the processes was a review of the staff complement to enable the office to undertake its constitutional mandate as well as optimally serve Kenyans.
He said the promotions factored in all requirements including age, those who were in acting capacity and regional balance.
Further, Mr Eredi pointed out that about 70 percent of the workforce at the Attorney-General’s office is made up by women.
The judge directed that the case to be mentioned on February 11, 2025, for directions.
