The 50 newly appointed Chief Administrative Secretaries (CASs) will have to wait longer before they assume their offices after High Court sitting in Nairobi declined to lift orders blocking them from reporting to their respective offices.
When the matter came up for directions on Tuesday, March 28, Justice Hedwig Ong'undi declined requests by four CASs to set aside the orders issued on Friday and allow them to return to the office, which they had held for one day.
The CASs Dennis Itumbi, Evans Kidero, Samuel Tunai and Nicholas Gumbo told the court that the orders were issued irregularly and were intended to "subvert the operations of the government".
They urged the court to vacate the orders to enable them assume office immediately and allow them to earn a salary, remuneration and other benefits.
The legal dispute stemmed from two petitions filed by rights activist Eliud Matindi, the Law Society of Kenya and Katiba Institute.
Justice Ong'undi rejected the request to set aside the orders as it emerged there were several issues that are pending determination.
Among the issues pending determination are the powers of the court to hear and determine the lawsuits, whether President William Ruto can be sued in person, empanelment of an even bench, consolidation of the two petitions and whether the court will allow LSK and Katiba Institute to amend their petition.
Matindi wants the two lawsuits consolidated and referred to Chief Justice Martha Koome for appointment of a three-judge bench on grounds that the case raises novel substantial issues of law. He did not identify the said issues during the virtual court session.
Attorney-General Justin Muturi for his part informed the judge that he wants the court to first handle the issue of jurisdiction. Together with the public service commission and the Salaries and Remuneration Commission, the AG want the court to first determine the question of jurisdiction before any other application is dealt with.
"Your honour the question on Jurisdiction is very vital in this case. We urge the court to first handled the same before any other issues are dealt with, " the AG through Emmanuel Bitta told the judge.
Katiba and LSK through lawyer Dudley Ochiel want to be allowed to amend their claims against the President, AG, National Assembly, PSC and SRC.
“We wish to amend the petition to indicate that the 50 CASs violated Article 3 of the Constitution by failure to reject their appointments to an unconstitutional office,” Ochiel said.
The court heard they also intend to amend the petition on the issue of why the Parliament failed to vet the CASs.
Ochiel also sought to also be allowed to include the AG in their petition and also list Matindi as the third petitioner.
The CASs through lawyers Adrian Kamotho, Peter Wanyama and Jotham Arwa said the interim conservatory orders should be lifted because they are giving the petitioners an uneven and unfair field on the dispute.
“The conservatory orders have given the petitioners uneven and unfair advantage in the field in a matter that involves total misapprehension and misunderstanding of the provisions regarding powers of the President. Since the CASs hold office, issue of conservatory orders should be determined at the earliest possible opportunity,” Wanyama said.
“The petitioners are going to this battle with undue advantage,” he stated.
He was representing Nicholas Gumbo and Evans Kidero.
He also sought orders compelling the petitioners to serve all the 50 CASs with the lawsuit papers.
"We seek to be served with Matindi's petition via email as the petition by Katiba Institute and LSk we received the same via social media. My clients right to be heard is fundamental as the orders the court may issue may affect them directly, " Wanyama informed the Judge.
Kamotho, for Dennis Itumbi, said the petitioners "misled the court to obtain irregular orders".
He said the petitioners failed to disclose that the process leading to the appointments is anchored by Gazette Notice, which has never been suspended nor invalidated by any court. He said the gazette notice remains sound, valid and effective.
"The petitioners deceptively failed to disclose pertinent and germane material to the court. Consequently, the Petitioners knowingly misled the court to issue an injunctive order that would never have been issued, had the Petitioners not irregularly withheld critical matters from the court," said lawyer Kamotho.
According to the court orders issued by judge Oug'udi at the High Court in Nairobi on Friday last week, all the 50 CASs were "restrained and barred from assuming or continuing to act Chief Administrative Secretary". The judge sits at the High Court Human Rights and Constitutional division.
The appointees were further barred from earning any salary, remuneration and any benefit in the interim.
The petitioner's main contention is that President Ruto appointed 50 CASs while the Public Service Commission (PSC) had approved 23. They claim the additional 27 are illegal.
But in his application for striking out of the suit, Itumbi said there is no known law that caps the number of Chief Administrative Secretaries 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 Joseph Kinyua, former head of public service," said lawyer Kamotho.
He added that the petitioners "fraudulently misled the court to issue irregular orders, by cunningly stating that the appointments contravened an unauthenticated letter addressed to the Chairperson of the Public Service Commission by Joseph Kinyua, a former head of public service requesting for a vacancy declaration of 23 vacancies.”
"For the avoidance of doubt, Article 132 (4) (a) of the Constitution mandates the President to establish an office in the public service in accordance with the recommendation of the Public Service Commission," said Kamotho.
"The alleged recommendation by 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 continued.
He added that the dispute ought to be canvassed at the Employment and Labour Relations Court, not the Human Rights and Constitutional division.
The CASs were sworn in on Thursday last week after the National Assembly failed to vet the nominees, citing the lack of constitutional authority to carry out the exercise
The judge will give directions on all the issues raised by the parties on Friday, March 31, 2023.