Petition challenging CAS appointments referred to CJ Koome
President William Ruto, Deputy President Rigathi Gachagua and Prime Cabinet Minister Musalia Mudavadi take a group photo with the newly sworn-in Chief Administrative Secretaries at State House, Nairobi on March 23, 2023.
Petition challenging the appointment of the 50 Chief Administrative Secretaries (CASs) referred to Chief Justice Martha Koome for empanelment of the bench.
High Court Judge Hedwig Ong’udi has also extended the interim orders barring the CASs from assuming office or earning any salary, remuneration, or any benefits.
On Tuesday, March 28, Justice Ong’udi declined requests by the CASs to set aside the temporary orders issued last week from twin petitions filed by the Law Society of Kenya and activists.
The petitions are challenging President William Ruto’s powers to appoint 50 CASs instead of 23 as recommended by the Public Service Commission.
Disobeying orders
The court also warned the 50 CASs appointed by President Ruto against disregarding orders to stay away from the job, even as the Attorney-General denied that they had assumed office.
Justice Ong’udi issued the stern warning after referring the lawsuit challenging the President’s action to the Chief Justice for appointment of a three-judge bench.
This was even as Attorney-General Justin Muturi denied claims that some CASs had assumed office and were executing duties, contrary to the orders of the court.
Through State counsel Grace Mutindi, the AG dismissed a complaint by the petitioners that some CASs had assumed office and stated that there was no evidence to support the allegations.
Justice Ong’udi said court orders must be obeyed until they are set aside and asked lawyers of the CASs to comply and avoid disobedience.
“Court orders once issued must be obeyed until they are set aside. We may be happy with them or not but obedience is key. Pass that message to your clients,” the judge told the lawyers.
Last week, the court barred the CASs from assuming office or earning any salary, remuneration and any benefit pending determination of a case that is challenging the President’s decision to appoint them.
The judge’s warning emerged from a complaint by the petitioners, Katiba Institute and rights activist Eliud Matindi, that some of the CASs had assumed office despite being blocked by court.
“The conservatory orders are being flouted. Some of the Interested Parties (the CASs) have assumed office contrary to the interim orders. This is a matter of concern as all public officers must uphold and respect the Constitution. Inasmuch as people may disagree with court orders until vacated, they ought and must be respected,” said Mr Matindi.
For Katiba Institute, lawyer Dudley Ochiel asked court to direct the Public Service Commission (PSC) and the Attorney-General to publish the names of the CASs who have assumed office.
But the PSC said that having completed the recruitment, the officials were not in its control as the said officials had since been appointed to office and gazetted.
State counsel Mutindi said the AG does not micromanage public service and that it was unfair to ask the court to direct the AG to present a list of those who have assumed office.
“Mr Ochiel should provide an affidavit and evidence of those who assumed office. We are not aware if any has assumed office though were sworn in. He who alleges must prove, Mr Ochiel has obligation to prove the allegations. Let him provided evidence that there is non-compliance with the court orders,” said Ms Mutindi.
Judge Ong’udi extended the interim orders to April 21, 2023 when the case, which is a consolidation of two petitions, will be mentioned before the expanded bench of three judges. The first petition was filed by activist Matindi while the second was lodged by the Law Society of Kenya and Katiba Institute.
Referring the case to the Chief Justice, the court noted that the petitions raise substantial issues such as the powers of the President to appoint persons into public service.
“This matter is of great public interest because of the economic times we are operating in. The powers of the President in public service are questioned. The jurisdiction of court is also challenged. Was this matter prematurely filed, and should the President be struck out from the proceedings?” asked the judge highlighting some of the substantial novel issues in the petition.
“These are a few issues to be addressed. I find this matter will address issues for the posterity of our nation and jurisprudence. I find it prudent to refer it to the Chief Justice for empanelment of the bench,” she stated.
Some of the parties such as the CAS for Information Communication and Technology (ICT) Mr Dennis Itumbi, the Attorney-General, PSC and the Salaries and Remuneration Commission have since questioned 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 case will be mentioned on April 21, 2023.
