The High Court has declined to issue any orders in relation to the appointment and swearing in of the 50 Chief Administrative Secretaries (CAS).
Justice Hedwig Ong'undi of Constitutional and Human rights Division in Milimani Law courts on Thursday, March 23, 2023, said that the request by a Kenyan citizen residing in the United Kingdom, Eliud Karanja Matindi, for interim orders stopping the appointment and swearing, was overtaken by events.
"From what has transpired on Wednesday evening and Thursday it is clear the notice of motion by the petitioner is overtaken," Justice Ong'undi ruled
At the same time, Attorney General Justin Muturi has filed a preliminary objection to the suit challenging the authority of the High Court Constitution and Human Rights Divison to hear and determine the issues raised by the Activist.
The AG through state counsel Emmanuel Bitta is also questioning the legality of Matindi's decision to sue President William Ruto in his personal capacity over the appointment of the 50 CASs.
The judge, however, directed the National Assembly, Salaries and Remuneration Commission, Public Service Commission, Controller of Budget and all the 50 CASs to file their responses to the preliminary objection by the AG before the closing of business on March 27.
The Petitioner protested the decision of the National Assembly communicated by the speaker to decline to vet the nominees and their Gazettement on Wednesday night and their subsequent swearing-in by President Ruto. According to Matindi, the development affected his case because the interim orders he sought were overtaken by events.
"The President went to appoint and swear the 50 CASs this morning. His actions were aimed at defeating the cause of justice in this matter," Matindi stated.
"The appointing authority put themselves above the constitution and went ahead to violate it this morning despite being aware of the case being active in court. I am seeking an order to avoid violation of the constitution and misuse of money and to give the court time to consider the substantive motion," he added.
Matindi further informed the judge that he will be seeking orders barring the 50 CASs from being paid until the matter is heard and determined since they have already been sworn into office.
"I will still want the court to hear the notice of motion application and also grant orders restraining any state officer from authorizing the payments of the 50 CASs until the matter is heard and determined," he told the court.
In the case, Matindi is seeking to quash the decision of President Ruto to create an additional twenty-seven Chief Administrative Secretary (CAS) positions.
According to the petitioner, the Public Service Commission (PSC) had allowed the creation of only 23 CAS offices.
"Nominating fifty persons for appointment to the office of CAS, when only twenty-three vacancies were proposed by the public service commission advertised and recruited to, is untenable by all accounts," Matindi states.
Ruto through a Notification of Presidential Action dated March 16, 2023, nominated 50 people to assume office as CAS.
Among those settled on by President Ruto are former elective seat candidates, including Evans Kidero, Catherine Waruguru, Wilson Sossion, Millicent Omanga, Isaac Mwaura, Chris Wamalwa, Bishop Margaret Wanjiru, Joash Maangi and Dennis Itumbi.
Matindi in his petition contends the additional CAS office is irregular and the court should intervene. He says the nominations and the intended appointments are riddled with unconstitutionality.
"The Public Service Commission (PSC) proposed and the President accepted the creation of 23 positions of the office of CAS. The recruitment process carried out by the PSC to recruit persons to the newly-created office was on the basis of there being 23 vacant positions," Matindi added in the court papers.
He further accuses PSC of failure to discharge its constitutional mandate, including its duties under Articles 10, 232, 234 and 249 of the Constitution by facilitating and superintending over the creation of the additional twenty-seven offices by President Ruto.