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Court certifies case challenging CASs appointment urgent

Tuesday, March 21st, 2023 18:13 | By
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Court hammer. PHOTO/Courtesy

The High Court on Tuesday, March 21 certified as urgent a lawsuit seeking to quash the decision of President William Ruto to create an additional 27 Chief Administrative Secretary (CAS) positions last week.

Justice Hedwig Ong'undi certified the case filed by a Kenyan citizen residing in the United Kingdom Eliud Karanja Matindi and directed him to serve the court papers to the President, Attorney General Justin Muturi, National Assembly, Salaries and Remuneration Commission, Public Service Commission, Controller of Budget and all the 50 CASs before Thursday, March 23, 2023, when the case will be mentioned for further direction.

"I hereby certify the matter as urgent and of great public interest. I, therefore, direct all the pleadings to be served on all parties immediately. The responses are to be filed and served immediately upon service. The case is to be mentioned on March 23, 2023, at 11:00 am for further directions," Justice Ong'undi ruled.

Matindi is challenging the decision by Ruto to nominate 50 persons on Thursday last week for approval by Parliament to be appointed to the office of CAS, in the full knowledge that only 23 positions were created and recruited outside the provisions of the constitution and the law.

According to the petitioner, the PSChad allowed the creation of only 23 CAS offices.

"Nominating 50 persons for appointment to the office of CAS, when only 23 vacancies were proposed by the PSC 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 who if successfully vetted by MPs will assume office as CAS.

"The 1st Respondent (President William Ruto) violated the Constitution and the law by creating the office of CAS and, specifically, the additional 27 positions and nominating 50 persons – the 2nd to 51st Interested Parties – to be approved by the National Assembly for their appointment to the nominated positions," Matgindi states in his court papers.

Among those settled on by President Ruto are 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.

According to him, 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," says Matindi in the court papers.

Court orders

He wants the court to issue interim orders restraining the National Assembly from conducting approval hearings for any of the nominees claiming that the MPs have no constitutional powers to approve for appointment of persons nominated to the CAS positions created by the President, including otherwise than in accordance with the recommendations of the PSC, and not established and designated as state offices by national legislation.

"Parliament, including the National Assembly, has no constitutional powers to approve a draft of proposed regulations, made by a regulation-making authority in pursuance of powers granted to the regulation-making authority, before such Regulations are published in the Kenya Gazette and become provisions having the force of law in Kenya," the petitioner says.

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.

"Ruto and PSC unconstitutionally colluded with each other by pretending that there were only twenty-three positions of CAS that were being recruited for when, in fact, the number of positions created was unlimited and at the absolute discretion of the President.

"The purpose and/or intention of creating the office of CAS was to enable the Head of the State to unconstitutionally reward his close political allies with positions in the public service rather than for the purpose of ensuring service to the people of Kenya in accordance with the Constitution," Matindi says in his petition.

He adds: "The expressed desire by the President for the recruitment process to be completed as a matter of urgency and priority, is evident from the speed that has characterised this whole process, from request for creation of the offices, their creation, shortlisting, and interviewing of the candidates and their eventual nomination.

"This included the identification of the 50 nominees in a record time of less than five working days after completion of the interview of the 240 shortlisted candidates.

He wants several orders from the court including a declaration that Ruto violated the constitution and the law by creating the office of CAS and specifically the additional 27 positions.

He also wants the court to bar the President either by himself or through anyone acting at his behest, instructions or directions, from appointing any of the nominees if their nominations are approved by the National Assembly.

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