The High Court, on Monday, declared President William Ruto’s appointment of 50 Chief Administrative Secretaries (CAS) as unconstitutional, in a decision that means the State must restart the process or drop them altogether.
In a majority decision, the court ruled that although there was “some reasonable public participation” on the first complement of 23 CASs, there was no such participation regarding the additional 27.
And for that matter, the failure to adhere to the constitutional requirement makes the entire list of 50 CASs illegal.
The judges said although the Court of Appeal preserved the original office created by former President Uhuru Kenyatta in January 2018, once the office was abolished by the Public Service Commission in September 21, 2022, the newly created office and complement of 23 office holders could no longer benefit from that suspension.
“Accordingly, the newly created office and fresh complement of 50 had to comply with the Constitution and the criteria set out earlier in Okiya’s (Omtatah) case in order to be lawfully established. They did not comply. For the avoidance of doubt, the entire complement of 50 CASs is, therefore, unconstitutional,” Justices Kanyi Kimondo and Aleem Visram said.
Among the final orders read by Justice Kanyi Kimondo, the court found that the President enjoys constitutional immunity from suit and was illegally joined into the proceedings.
It, however, found that he went against the constitution in creating the 27 additional CAS positions.
The court said whereas there was reasonable public participation in the creation of 23 CASs, there was no such participation regarding the additional 27 CAS positions.
“The notification of President William Ruto dated March 16, 2023, on the appointments is quashed,” Justice Kimondo ruled.
The court also dismissed a petition against the Controller of Budget that sought to find her at fault over the allocation of funds for the salaries of the persons appointed to the extra CAS posts.
Justice Kimondo also disallowed prayers sought to have Section 26 (ii) of the Salaries and Remuneration Act and the Salaries and Remuneration Commission, Remuneration of State and Public Officers Regulations 2013 be declared unconstitutional.
On costs, the court said each party shall bear its own costs.
“Costs ordinarily follow the event and are at the discretion of the court. We find that the consolidated petition raised constitutional issues in the public interest. The order that commends itself to us is that each party shall bear its own costs,” Justice Kimondo ruled.
By Hallan Emodia