Appellate judges dismiss Dennis Itumbi's CASs case as premature

The 50 chief administrative secretaries will have to wait longer before taking up their posts after the Court of Appeal dismissed an appeal by Dennis Itumbi to allow them to start work.

Court of Appeal judges Hellen Omondi, Imaana Laibuta and Ngenye Machari dismissed as premature the application by Mr Itumbi to set aside High Court orders barring the CASs from assuming office and drawing salaries from government coffers.

"We find the appeal application by Itumbi is premature and is hereby dismissed, " the judges said.

The Court of Appeal judges said they could not get on a matter that was live in the High Court. 

The judges dismissed the application as a three-judge bench sitting at the Milimani High Court on Friday, May 26, 2023, heard that the appointments were illegal and a nullity in law.

Justice Kanyi Kimondo, Hedwig Ong'undi and Alnashir Vislam set July 3 as the day they will determine the fate of the 50 CASs.

Law Society of Kenya, Katiba Institute, activist Eliud Matindi and Multi Touch International have challenged the appointments asking the court to quash the same.

In the appeal by Mr Itumbi, who was sworn in in March as a CAS in the ministry of ICT, had sought to vacate high court orders that barred them from assuming office.

He argued that they will suffer a substantial loss as they will remain in a state of “career purgatory” since their appointment cannot take effect.

He further argued that they cannot secure employment elsewhere since they have been appointed and sworn into their respective offices.

"Since the appointees can neither serve in the office to which they were recruited nor seek other gainful employment; that the balance of convenience tilts in favour of sustaining the appointment of the CASs to facilitate seamless service delivery within the Public Service, " Mr Itumbi had said.

But the petitioners in the High Court LSK, Katiba Institute and Matindi urged the Court of Appeal to dismiss the appeal by Mr Itumbi as it was premature.

"The application before this court and the intended appeal are premature, as the matters to which they relate are yet to be heard and determined by the High Court, " they argued.

The appellate judges agreed, stating: “In our considered view, the grounds advanced for the intended appeal do not call for the Court’s inquiry. They constitute an invitation to engage in litigation over premature matters.”

The judges added: “Suffice it to observe that those are matters awaiting adjudication by the expanded bench where the applicant will have the right and opportunity to address those issues, which are yet to be determined by the High Court, but which are not ripe for escalation on appeal to this Court. To hold otherwise would be to enter into the arena of litigation in anticipation.”