AG Muturi appeals court decision declaring CAS jobs illegal

The State has again escalated the legal battle over the position of Chief Administrative Secretary to the Court of Appeal after the Attorney General on Wednesday filed a second appeal to overturn the High Court's ruling that the position was unconstitutional.

This comes as the Court of Appeal is yet to rule on an appeal filed two years ago by former AG Paul Kihara Kariuki against a ruling that nullified the appointment of 20 Chief Administrative Secretaries (CAS) hired by former President Uhuru Kenyatta in 2018.

On Wednesday, Mr Muturi filed a notice of appeal to save the appointment of 50 CASs hired by President William Ruto in March 2023.

AG Muturi said he was dissatisfied with the High Court (majority) ruling delivered on Monday by justices Kanyi Kimondo and Aleem Visram at the High Court in Nairobi.

The second finding that aggrieved the AG was that there was no public participation in the process of adding 27 CAS positions.

The PSC had initially advertised for 23 CAS positions but later increased the number to 50.

Thirdly, the AG is aggrieved by the finding that the entire complement of 50 CASs is unconstitutional.

Through Chief State Counsel Emmanuel Bitta, the AG said the fourth finding he intends to challenge is the High Court's decision to quash the President's notification of March 16, 2023, appointing the 50 CASs.

The AG has also written to the Deputy Registrar, High Court Constitutional & Human Rights Division Milimani, seeking to be furnished with the typed proceedings of the case, a certified copy of the judgment and decree to enable him file the intended appeal.

AG Muturi's appeal comes two years after his predecessor, Kihara Kariuki, filed a similar appeal challenging a judgment by High Court judge Anthony Mrima, who found former President Uhuru Kenyatta's decision to appoint 20 CASs was unconstitutional.

Judge Mrima declared that the office, which was created by the former president in 2018 and gave a lifeline to a number of 2017 election losers, was established in contravention of the Constitution and the law.

Human rights activist Okiya Omtatah

The ruling stemmed from a case filed by human rights activist Okiya Omtatah, now the senator for Busia.

The recent ruling followed a petition filed by the Law Society of Kenya (LSK), the Katiba Institute and activist Karanja Matindi.

In the judgment, the court ruled that although there was "some reasonable public participation" in the first complement of 23 CASs, there was no such participation in the additional 27.

Further, the judges ruled that although the Court of Appeal preserved the original office created by former President Uhuru Kenyatta in January 2018, once the office was abolished by the Public Service Commission on September 21, 2022, the newly created office and the complement of 23 office holders could no longer benefit from that suspension.

“Accordingly, the newly created office and fresh complement of 50 had to comply with the Constitution and the criteria set out earlier in Okiya’s (Omtatah) case in order to be lawfully established. They did not comply. For the avoidance of doubt, the entire complement of 50 CASs is, therefore, unconstitutional," Justices Kanyi Kimondo and Aleem Visram said.

Justice Hedwig Ong'udi dissented, saying the creation of 23 CAS posts was constitutional. However, the additional 27 posts created by the gazette notice were unconstitutional.

The court also refused to stay the decision pending an appeal, saying that although the CASs had been sworn in, they had never taken office.

“A stay would amount to putting the CASs in office when the court has already found that the appointments were unconstitutional,” the judges said.