Court throws out LSK case against creation of CAS post
Thee Milimani Law Courts in Nairobi.
A court has thrown out a case filed by the Law Society of Kenya, challenging establishment of the Chief Administrative Secretary (CAS) positions in the public service.
Justice Monicah Mbaru, of the Employment and Labour Relations Court, ruled Thursday that the Public Service Commission (PSC) to create the position is lawful.
Dismissing LSK’s petition to declare the position illegal, the judge noted that the commission followed the requisite legal procedure in its bid to establish the office, taking steps such as inviting public views.
The ruling paves way for the PSC to invite applications for the job vacancies advertised in October last year. The exercise was halted after the LSK sued.
The court’s decision to endorse the PSC’s move is a reprieve for President William Ruto’s allies who lost in the 2022 General Election as they are likely to be the main beneficiaries.
During former President Uhuru Kenyatta’s regime, the majority of the holders of the office were 2017 election losers.
Public participation
In April 2021, the High Court declared the position as unconstitutional, citing the PSC’s failure to undertake public participation and stakeholder engagement while establishing it.
In a notice, the PSC had indicated that the appointments would be contractual as determined, with successful candidates remunerated according to the CAS' CSG 3 job grade.
The functions of the CAS include responding to issues and questions touching on the portfolio assigned to the office, providing liaison with the National Assembly and Senate.
The holder of the officer will also provide liaison with county governments on matters of concurrent mandate, as well as inter-ministerial /sectoral coordination.
In challenging the establishment of the office, the LSK told the court that the setup was illegal and would lead to a bloated wage bill.
The LSK also said it was likely there would be a duplicity of roles of the CAS and principal secretaries, “which would further bloat the public wage bill without corresponding improvement of services delivery in the public sphere”.
“As currently crafted, the press release inviting members of the public to give their views on the creation of the CAS position was inadequate to invite informed responses. It is unclear on the nature of views the advert intends to elicit as it fails to provide crucial information,” the LSK said in the petition.
LSK’s arguments
The society premised its opposition to the creation of CAS office on the status of the country’s economy and financial constraints facing the government.
“It is no doubt that the Kenyan economy is struggling, which has caused a financial strain on many Kenyans and pushed taxation beyond the elastic limit of the majority of Kenyans,” it said.
“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,” it added.
Another claim by the LSK was that when PSC invited public views on the establishment of the office, it “intentionally” failed to provide crucial information to facilitate the people’s informed participation.
For instance, the LSK says, according to Section 27(1) of the PSC Act, the commission failed to provide information on the financial implications of creating the office, the functions of the office and a workload analysis.
