The High Court sitting in Nairobi has said President Uhuru Kenyatta's creation of the position of Chief Administrative Secretaries in all government ministries was unconstitutional.
High Court Judge Anthony Mrima on Tuesday also said Cabinet Secretaries (CSs) who were appointed in the first term must be approved by the National Assembly to serve in the second term.
PSs who were also not shortlisted, interviewed and appointed in line with the law were found to be holding positions contrary to the Constitution.
However, the judge suspended his decision declaring the office of the CAS unconstitutional, saying it would disrupt the orderly operations of the ministries especially now that the country is battling the Covid-19 pandemic.
"Orders of this court are hereby suspended until country contains the Covid-19 Pandemic or such a period as this Court may later determine in order to afford the state an opportunity to regularise the situation," he said.
Meanwhile, the judge said for all appointive positions, the two-thirds gender rule must be realised immediately.
Activist Okiya Omtatah had filed a case in 2018 arguing that the President by creating the office of Chief Administrative Secretary without consideration of the costs of manning and running it, Article 201(d) of the Constitution, which provides that public money shall be used in a prudent and responsible way, was violated.
He faulted the President for hand picking and appointing persons to be CASs without subjecting them to a merit based competitive recruitment process.
"By creating the office of the CAS without consideration for the costs of manning and running it, article 201 (d) of the constitution which categorically provides that public money shall be used in a prudent and responsible way, was violated," argued Omtatah.
He also said Uhuru violated article 155 (3) (a) of the Constitution which provides that he shall nominate a person for appointment as Principal secretary from among persons recommended by the Public Service Commission.
Judge Mrima agreed that the process under which the CAS position was created was not in accordance with the law.
The judge said the President can only appoint persons to the positions of PSs and CASs once they have been shortlisted, interviewed, recommended for nomination for appointment by the PSC and on approval by the National Assembly.
The AG has 30 days to file and affidavit in court giving details of the members of the Cabinet in January 2018, the current members of the Cabinet, the gender, age and ethnicity of the current Cabinet Secretaries and Principal Secretaries.
The AG will also be required to indicate the time and manner in which the current Cabinet Secretaries and Principal Secretaries were appointed and whether any serving Cabinet Secretary or Principal Secretary suffers any disability.
