- EDITORIAL BRIEF: The recent decision by CJ Koome to reconstitute the three-judge bench established to determine petitions filed against President William Ruto’s appointment of 50 Chief Administrative Secretaries is a significant development in the ongoing legal battle. By removing Justice John Onyiego and replacing him with Justice Aleem Visram, the CJ has made a critical decision that could have an impact on the final outcome of the case.
Chief Justice Martha Koome has made changes to the three-judge bench she recently formed to determine petitions filed against President William Ruto’s decision to appoint 50 Chief Administrative Secretaries (CAS). Judge Aleem Visram has replaced Judge John Onyiego in the reconstituted bench. The court’s deputy registrar (Constitutional & Human Rights Division) has informed the parties in the dispute about the changes in the bench composition. The case will be mentioned virtually on April 28, 2023, for directions, and Justice Kanyi Kimondo will be the presiding judge in the bench.
The bench will deal with the powers of the President to establish offices in the Public Service, whether these powers are limited, and whether the advice of the Public Service Commission to the President is legally binding. The case involves two petitions filed last month, which contend that the President appointed 27 additional CASs. The basis of their contention is a claim that the Public Service Commission (PSC) had recommended 23 CASs.
The appointees include President Ruto’s allies, such as digital communication strategist Denis Itumbi, Benjamin Washiali, Joash Maangi, Victor Munyaka, Catherine Waruguru, Wilson Sossion, Millicent Omanga, Isaac Mwaura, Dr Chris Wamalwa, and Bishop Margaret Wanjiru. Others are President Ruto’s new allies, such as Evans Kidero, Rehema Dida Jaldesa, and Fredrick Outa. Also on the list are his old allies like Khatib Mwashetani, Wesley Korir, Charles Njagua, and Mary Seneta.
CJ Koome empaneled the bench after the court found that the twin petitions raise substantial issues of law such as powers of the President to appoint persons in the public service. Some of the parties in the lawsuit, such as the CAS for Information Communication and Technology (ICT), the Attorney-General, PSC, and the Salaries and Remuneration Commission, have questioned the High Court’s authority to hear the dispute. They hold that the dispute falls within the ambit of the Employment and Labour Relations Court. The petitions were filed at the Constitutional & Human Rights Division of High Court.
The CASs also want the court to lift the temporary injunction order saying they were issued irregularly. They add that the petitions involve “total misapprehension and misunderstanding of the Constitution provisions regarding powers of the President.” Lawyer Adrian Kamotho, for Mr. Itumbi, argued that there is no known law that caps the number of Chief Administrative Secretaries at 23.
“The number of office holders to recommend is purely within the province of the PSC based on a comprehensive workload analysis among other relevant considerations. The court cannot be invited to render drastic reliefs as sought here on the basis of legally non-binding proposals borne in the correspondence by Mr. Joseph Kinyua, former head of public service,” said lawyer Kamotho.
“The alleged recommendation by Mr. Kinyua requesting for a vacancy declaration of 23 vacancies is a legal misadventure and is inherently incompatible with Article 234 (2) (a) (ii) of the Constitution, which confers upon the PSC unfettered latitude to establish and abolish offices in the public service subject to the Constitution and legislation,” he continued.
He added that the petitioners “fraudulently misled the court to issue irregular interim orders,” by cunningly stating that the appointments contravened an unauthenticated letter addressed to the Chairperson of the Public Service Commission by Mr. Joseph Kinyua, a former head of public service requesting for a vacancy declaration of 23 vacancies.
