By Kamadi Amata
Chief Justice Martha Koome has made changes to a three-judge bench that she had constituted to hear a case challenging the appointment of 50 Chief Administrative Secretaries (CASs) in Kenya. Initially, she had named Justices John Onyiego, Kanyi Kimondo, and Hedwig Ong’undi as the bench that would hear and determine the case.
However, in a notice dated April 20, Milimani Deputy Registrar Tessy Maroenga informed parties in the case that the new bench would comprise Justices Aleem Visram, Kimondo, and Ong’undi. She further informed them that the case would be mentioned virtually on April 28, 2023, for directions.
There are two matters filed in court over the appointment of the 50 CASs. One is by Eliud Matindi, a Kenyan citizen residing in the United Kingdom, and the other by the Law Society of Kenya (LSK) and Katiba Institute. Through lawyer Dan Okemwa, LSK and Katiba argued that the nomination of the 50 CASs goes against a letter to the chairperson of the Public Service Commission (PSC) from the Head of Public Service in October last year, requesting a vacancy declaration of 23 positions in the office of the CAS.
“At the time of their application, only 23 vacancies lawfully existed. Through the unilateral decision by PSC to unconstitutionally and unlawfully create an additional 27 positions, there exist serious doubts as to the legality and irregularity of their appointments,” Okemwa said.
The two parties accused PSC of abdicating its roles, which they say has enabled the president to establish 27 additional offices in violation of the constitution. “There is an imminent threat of infringement of the constitution if the interested parties proceed to assume office,” they said.
They further told the court that the move by the President to unconstitutionally create 27 additional offices in the public service to be financed using public funds violates Article 201 and 228 (5) of the constitution, which call for the prudent use of public resources. The petition seeks to examine the powers of the President to create a public office and whether he can disregard the recommendations of the PSC. The respondents in the case are the President of the Republic of Kenya and PSC.