CJ Koome forms 3-judge bench to hear CASs case
Chief Justice Martha Koome during a meeting with Laikipia Governor Joshua Irungu in his office on March 20, 2023.
What you need to know:
- CJ Koome empanelled the bench after the court found that twin petitions raised substantial issues of law such as powers of the President to appoint persons in the public service.
The first petition was filed by rights activist Eliud Matindi while the second was a joint suit by the Law Society of Kenya and Katiba Institute. The High Court has since issued a temporary order barring the CASs from assuming their respective offices or drawing salaries from the public.
Chief Justice Martha Koome has appointed a three-judge bench to hear and determine petitions challenging the move by President William Ruto to appoint 50 Chief Administrative Secretaries (CASs).
The gist of the legal dispute is a contention that the President appointed 27 additional CASs since the Public Service Commission (PSC) had allegedly recommended 23.
CJ Koome has tasked justices Kanyi Kimondo, Hedwig Ong’udi and John Onyiego to deal with the two petitions filed last month.
The first petition was filed by rights activist Eliud Matindi while the second was a joint suit by the Law Society of Kenya and Katiba Institute. The High Court has since issued a temporary order barring the CASs from assuming their respective offices or drawing salaries from the public.
The appointees include President Ruto’s allies such as digital communication strategist Denis Itumbi, Benjamin Washiali, Joash Maangi,Victor Munyaka, Catherine Waruguru, Catherine Waruguru, Wilson Sossion, Millicent Omanga, Isaac Mwaura, Dr Chris Wamalwa and Bishop Margaret Wanjiru.
Others are the President’s new allies such as Evans Kidero, Rehema Dida Jaldesa and Fredrick Outa.
Also to be affected are his old allies like Khatib Mwashetani, Wesley Korir, Charles Njagua and Mary Seneta.
Justice Kimondo will be the presiding judge in the bench, a notice from the CJ to the parties indicates. The notice was sent on Friday evening by High Court Deputy Registrar Tessy Marienga ahead of the court session scheduled for April 21.
The Deputy Registrar also directed the parties to file their all pleadings before April 18.
CJ Koome empanelled the bench after the court found that the twin petitions raised substantial issues of law such as powers of the President to appoint persons in the public service.
“This matter is of great public interest because of the economic times we are operating in. Powers of the President in public service are questioned. Jurisdiction of court is also challenged. Was this matter prematurely filed, and should the President be struck out from the proceedings?” asked Justice Ong’udi when referring the file to the CJ to expand the bench.
Some of the parties such as Mr Itumbi, the Attorney-General, PSC and the Salaries and Remuneration Commission have since questioned the High Court’s authority to hear the dispute.
They hold that the dispute falls within the ambit of the Employment and Labour Relations Court. The petitions were filed at the Constitutional and Human Rights Division of the High Court.
The CASs also want the court to lift the temporary injunction relating to their assumption of office, saying it was issued irregularly.
They add that the petitions involve “total misapprehension and misunderstanding of the Constitution provisions regarding powers of the President”.
Mr Itumbi’s lawyer Adrian Kamotho argues that there is no known law that caps the number of CASs at 23.
“The number of office holders to recommend is purely within the province of the PSC based on a comprehensive workload analysis among other relevant considerations. The court cannot be invited to render drastic reliefs as sought here on the basis of legally non-binding proposals borne in the correspondence by Mr Joseph Kinyua, former head of public service,” pleads Mr Kamotho.
“The alleged recommendation by Mr Kinyua requesting for a vacancy declaration of 23 vacancies is a legal misadventure and is inherently incompatible with Article 234 (2) (a) (ii) of the Constitution which confers upon the PSC unfettered latitude to establish and abolish offices in the public service subject to the Constitution and legislation,” he adds in his pleadings.
He adds that the petitioners “fraudulently misled the court to issue irregular interim orders by cunningly stating that the appointments contravened an unauthenticated letter addressed to the Chairperson of the Public Service Commission by Mr Joseph Kinyua, a former Head of Public Service requesting for a vacancy declaration of 23 vacancies.”
And since the petitioners have sought to freeze the salary, remuneration and benefits of the CASs, he said the petitioners disregarded the fact that upon their appointments, the 50 relinquished their previous roles and enterprises.
“Thus, from all perspectives, the reliefs sought are disproportionate and life threatening since they leave the CASs within the path of danger and without a source of livelihood,” argues Mr Kamotho.
