Why appellate court declined to allow CASs to serve pending appeal hearing


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. 

Photo credit: PCS

What you need to know:

  • In the application, Attorney General Justin Muturi argued that the appointments were on time-bound contracts. 
  • He submitted that the judgment of the High Court, which declared the offices illegal, unconstitutionally clipped the powers of the President.

The Court of Appeal has declined to allow the 50 Chief Administrative Secretaries (CAS) appointed by President William Ruto to serve in office, pending the determination of a case on the constitutionality of the office.

A bench of three judges of the Appellate court ruled that Attorney General Justin Muturi and the 50 CASs had not demonstrated any disastrous or devastating consequences that will suddenly befall Kenyans as they await determination of the appeal.

Justices Kathurima M’Inoti, Mumbi Ngugi and Francis Tuiyott also said they were not persuaded that the collective destiny of the people of Kenya lies in the hands of 50 CASs whose offices are seriously contested.

“If, for example, after hearing the appeals this Court finds that the offices were created constitutionally, there will be constitutional certainty and the applicants will assume office and start rendering service,” the judges said.

The judges added that if, on the other hand, the court finds that the offices were created in violation of the constitution, they cannot fathom how the public can be compensated or how it can be comforting to tell the people of Kenya that, after all, service has been rendered, was in violation of the Constitution.

In the application, Mr Muturi through Solicitor General Shadrack Mose, argued that the appointments were on time-bound contracts. 

He also argued that the appointments are essential to service delivery to the public and are absolutely critical to honoring the President Ruto’s contract with the electorate and securing his legacy. 

He submitted that the judgment of the High Court, which declared the offices illegal, unconstitutionally clipped the powers of the President to create and make deserved appointments to public office.

The judges, however, said that a service rendered in violation of the constitution is no service at all in the eyes of the law.

Some of the appointees, including Dennis Itumbi, argued that the appointments were constitutional prerogative of the president to realise his policies and honour his political contract with the electorate.

He submitted through lawyer Adrian Kamotho that if the decision is suspended, the public will benefit from the services offered as the CASs earn their keep.

Mr Itumbi said the CASs were deprived of the opportunity to render services and at the same time, prevented from earning salaries.

The applications were opposed by Mr Eliud Matindi, Dudley Ochiel for Katiba Instutite and the Law Society of Kenya (LSK).

Mr Ochiel submitted that whatever loss or prejudice the applicants suffered, if any, could be adequately compensated by award of damages. He further said the contention that the CASs were denied the right to employment was baseless because a public office is not the property of the office holder.

The judges agreed that the appeal was arguable as the court will determine whether there was adequate public participation in the creation of the offices, whether the creation of the offices required enactment of legislation and vetting by the National Assembly and which courts between the High Court and the Employment and Labour Relations court had jurisdiction to determine the matter.

“The very fact that two courts of concurrent jurisdiction have reached different conclusions on at least one issue that is intended to be argued on appeal is evidence enough that the appeals are not frivolous,” the judges said.