High Court to decide fate of Ruto CA*s in today’s ruling

The fate of President William Ruto’s 50 Chief Administrative Secretaries hangs in the balance as they wait for today’s court ruling on whether they will assume office or their appointment will be declared null and void.

Three High Court judges — Justices Kanyi Kimondo, Hedwig Ong’undi and Alnashir Vislam — will rule on whether to uphold or quash the CASs’ appointment, a move that will determine if the President will have fully constituted his government or he will have to go back to the drawing board 10 months after he took office.

The ruling offers four options: It can give a lifeline to the affected individuals or dash their hopes for public office, or it will open a new door for a protracted court battle.

It will also be a major test on the relationship between the Judiciary and the Executive given that it will come just days after another judge stopped the implementation of the Finance Act until the case comes up on Wednesday.

If the judges approve the appointments, the CASs will immediately assume office since they have already taken the oath of office. They will also be paid for the months that they did not work after the courts ordered that they must not report for duty until the case is heard and determined.
President Ruto nominated the 50 individuals, many of them losers in last year’s General Election and supporters of the Kenya Kwanza administration.

Among the appointees were former Nairobi Governor Evans Kidero, former Kipkelion East MP Joseph Limo, digital strategist Dennis Itumbi, former Nominated Senator Millicent Omanga, former Nominated MP Isaac Mwaura, former Narok Governor Samuel Tunai and former North Eastern Regional Co-ordinator Mohamud Ali Saleh.

Others are former Laikipia Woman Representative Catherine Waruguru, former Kenya National Union of Teachers (Knut) Secretary-General Wilson Sossion and former Starehe MP Charles Njagua. Others are former MPs Benjamin Washiali, Kimani Ngunjiri and Margaret Wanjiru.
23 slots

Their appointment was put on hold after the Law Society of Kenya and two others challenged the President’s move on the grounds that the law only allowed him to appoint 23 CASs rather than 50. When the matter went to court, Justice Ong’undi issued orders stopping the CASs from assuming office and earning salaries pending the hearing and determination of the suit.

In its petition, LSK questioned the legality of the appointments, arguing that the Public Service Commission (PSC) had approved 23 slots.

“It is our position that the additional 27 appointments are illegal,” the petition said.
LSK, Katiba Institute, activist Eliud Matindi and Multi Touch International then asked the court to quash the appointments. Further, they contended that the 50 CASs were sworn into office without the approval of the National Assembly as required by law.

The Speaker of the National Assembly had returned the list of nominees to State House, arguing that there was no law requiring Parliament to vet CASs.

“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,” the petitioners stated.
Multi-Touch International, a non-governmental organisation, told the judges that allowing the CAS to assume office would burden taxpayers given the economic conditions in the country and the high cost of living.

“That the office expenses and support staff of one CAS (shall) inevitably be more than Sh3 million per month and thus a very high possibility of employing more personnel,” the lobby group told the bench through their lawyer.

On the other hand, LSK and Katiba Institute argued that the appointments went against a letter to the chairperson of the Public Service Commission from the Head of the Public Service requesting a declaration of 23 vacancies in the office of CAS. They said at the time of their application for the position, only 23 vacancies lawfully existed.
“The 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,” they told the judges.
Katiba Institute, through its lawyer, told the judges that the decision to expand the positions violated principles of public participation and good governance.
The court heard that the financial implications of the appointments were not considered in October 2022, when the office of CAS was created, or on February 27, 2023, when the PSC concurred with the President to increase the number by 27.

CASs will be earning more than principal secretaries after the Salaries and Remuneration Commission (SRC) proposed that their monthly pay be raised to Sh780,000. A new SRC advisory to the PSC shows that a CAS’s monthly pay will rise from Sh765,188 following a job evaluation that put the position in a higher job grade.

“SRC has determined the monetary worth of the job of CAS at grade F1 and would like to advise on the attendant remuneration and benefits structure,” said the SRC chairperson Lyn Mengich in a March 14, 2023 letter to her PSC counterpart, Anthony Muchiri.

In justifying the appointments, President Ruto said he needed the CASs to discharge his mandate after winning the August presidential election. He also said that every county was represented in the hiring, which also took gender balance into consideration.

The petitioners, however, said the jobs were created unconstitutionally. They also accused PSC of failing 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 27 offices.

“Ruto and PSC unconstitutionally colluded with each other by pretending that there were only 23 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 petitioners told judges.

The Attorney General, the PSC and the 50 CASs who have been listed as interested parties discounted the allegations, maintaining that the appointment was lawful. They urged the judges to strike out the entire lawsuit.

The AG and PSC added that the dispute ought to be canvassed at the Employment and Labour Relations Court, not the Human Rights and Constitutional division of the High Court.
Minority leader in the National Assembly Opiyo Wandayi yesterday said Azimio was opposed Kenya Kwanza’s move to create more positions.

“We are dismayed that the President, who campaigned against the BBI on grounds that it was meant to create positions, is now busy creating positions that will add no value whatsoever to service delivery and steering the country in the right direction. We reject this total waste of resources,” Wandayi said.

Last month, the Court of Appeal dismissed an application by Itumbi seeking to suspend orders that stopped them from assuming office and drawing salaries.

Justice Helen Omondi, Imana Laibuta and Ngenye Macharia dismissed the application saying it was premature. They said the issues raised by Itumbi were yet to be determined by the High Court.