Court cautions CASs against disregarding orders to stay away from their offices
The High Court has warned the 50 newly appointed Chief Administrative Secretaries appointed by President William Ruto recently against disregarding orders to stay away from their respective offices.
Justice Hedwig Ong'undi issued a stern warning to the CASs while referring Chief Justice Martha Koome to create a three-judge bench to hear the case.
This even as Attorney-General Justin Muturi denied allegations from the petitioners that some CASs had assumed office and were executing duties contrary to the orders of the court.
AG through State counsel Grace Mutindi stated that the petitioners' rights activist Eliud Matindi and Katiba Institute had not placed any evidence that any of the CASs had assumed office.
Justice Hedwig Ong’udi said court orders must be obeyed until they are set aside and asked lawyers representing the CASs to 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. Kindly lawyers for the CASs pass that message to your client,” the judge stated
Last week, the court barred the CASs from assuming office or earning any salary, remuneration or benefit pending the 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 Matindi, that some of the CASs had assumed office despite being blocked by the 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,” Matindi said.
For the Katiba Institute, lawyer Dudley Ochiel asked the court to direct the Public Service Commission (PSC) and the Attorney-General to publish the names of the CASs who have assumed office.
"We request the court to order the AG and PSC to file in court at the next court appearance the names of the CASs who have assumed office so far. Some of them have assumed office and the government has communicated that," Ochiel urged the court.
But the PSC through lawyer Jacqueline Manani said that having completed the recruitment, the officials were not in its control as the said CASs had since been appointed to office and gazetted.
"The information on as to whether an officer has reported on duty or not is not within the custody of the PSC," Manani stated
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.
“Ochiel should provide an affidavit and evidence of those who assumed office. We are not aware if any have assumed office though were sworn in. He who alleges must prove, Ochiel has obligation to prove the allegations. Let him provide evidence that there is non-compliance with the court orders,” Mutindi said.
However, lawyer Adrian Kamotho for Dennis Itumbi urged the court to order Matindi and Katiba institute to file a formal contempt of court application listing exactly which CASs have disobeyed the court orders to avoid the risk where some CASs are faulted for non-compliance or put to task unnecessarily.
On his side Lawyer Peter Wanyama who is representing Nicholas Gumbo and Evans Kidero informed the court he will advise them to continue obeying the court orders to have them stay away from the office.
The judge directed Katiba institute to file a formal contempt of court application against the CASs who have assumed office against the orders of the court.
Justice Ong'undi, however, extended the interim orders blocking the 50 CASs from reporting to their respective offices until April 21, 2023, when CJ Martha Koome will have constituted a bench to hear the lawsuit.
The judge referred the case to the CJ to appoint a bench to hear the case saying it raises novel substantial issues of law.
"This matter is of great public interest, especially in the economic times Kenya is operating in. I find the best way forward is to refer this matter to the CJ for the empanelment of a mighty judge bench. All the pending applications and Preliminary Objections will be dealt with by the expanded bench," Justice Ong'undi ruled.
While forwarding the file to the CJ, the judge noted that the lawsuit has questioned several issues including the powers of the president in establishing offices in the public office, the Jurisdiction of the court hearing a labour relations matter, whether the case is prematurely filed and should his excellency the president be struck out from the proceedings.
In the case, president Ruto has been sued in his personal capacity.
At the same time, the court has also consolidated two petitions filed by rights activist Eliud Matindi, the Law Society of Kenya and Katiba Institute on grounds that they raise similar issues.
Justice Ong'undi has also ordered Matindi, LSK and Katiba Institute to serve all the 50 CASs whom they have sued with their lawsuit papers to enable them to appear in court by placing an advert in a local daily.
She has also allowed Katiba institute and LSK to amend their petition to indicate that the 50 CASs violated Article 3 of the Constitution by failing to reject their appointments to an unconstitutional office within the next five days.
They also intend to amend the petition on the issue of why the Parliament failed to vet the CASs.
The petitioner's main contention in the case is that President Ruto appointed 50 CASs while the Public Service Commission (PSC) had approved 23. They claim the additional 27 are illegal.