The Employment and Labour Relations Court on Friday, November 25, dismissed the objection lodged by the state on the case challenging the creation of the office of the Chief Administrative Secretary (CAS).
Justice Monica Mbaru ruled that the court has jurisdiction to hear the matter filed by the Law Society of Kenya (LSK) in October since its directly related to employment and labour issues.
In the case, the Public Service Commission (PSC) and the Attorney General wanted the court to throw out the case and pave way for the recruitment of CASs to serve in President William Ruto's administration.
"The court is conferred with the requisite jurisdiction to hear and determine disputes referred to under the Constitution, the provisions under the ELRC Act or any other written law which extends jurisdiction to the court to employment and labour relations," Justice Mbaru ruled.
"Such matters cannot be removed from this court as they are directly related to employment and labour relations and for connected purposes.
"The process of the establishment of the office of CASs is challenged and the petitioner is before the right forum to urge its case. Accordingly, objections by the 2nd respondent and with the concurrence of the 1st respondent are hereby found without merit and are hereby dismissed."
LSK moved to court to challenge the establishment of the CAS post on grounds of lack of proper public participation. The society also argued that the existence of the office would cause financial strain on the country.
The petitioner said despite PSC inviting the public to give its views on the establishment of the office, there was intentional failure to provide crucial information to facilitate informed participation of the people.
In its submissions, PSC argued that only the High Court is vested with the jurisdiction to determine the question as to the legality or otherwise of the actions of President Ruto in establishing the office of CAS pursuant to Article 132(4) (a) of the Constitution as read with Section 30 of the Public Service Commission Act, 2017. 3.
"The establishment of the office of Chief Administrative Secretary pursuant to Article 132(4) (a) of the Constitution as read with Section 30 of the Public Service Commission Act, 207 as impugned in the instant Petition does not fall within the ambit of this court's jurisdiction as outlined in Section 12 of the ELRC Act as read with Article 162(2) (a) of the Constitution," counsel for the respondents submitted.
CAS post declared unconstitutional
President Ruto's administration sought to re-introduce the CAS post after the court declared the creation of the office by former President Uhuru Kenyatta unconstitutional.
In the case, whose ruling was delivered in April last year, Activist Okiya Omtata argued that there was no public participation in the decision to introduce CASs as assistants to Cabinet Secretaries.
Uhuru's critics said the then-president created the slots as rewards for his allies who lost in the 2017 general election.