- Judge Nderi said that in the PS nominee matter, the court can only be approached once the National Assembly has concluded the vetting process.
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The judge also dismissed the preliminary objections that had been raised by the National Assembly and the Attorney General.
Image: EZEKIEL AMING'A
The National Assembly has been given the greenlight by the employment court to continue vetting the 51 Principal secretaries nominated by President William Ruto.
Two weeks ago, the court stopped the vetting of the nominees after the Law Society of Kenya and two others moved to court challenging the list, saying it lacked regional and gender balance.
However, Justice Nduma Nderi on Tuesday said the petitions, which were consolidated, were filed prematurely.
Judge Nderi said in the PS nominee matter, the court can only be approached once the National Assembly has concluded the vetting and written its report.
“This court will only be called upon the conclusion of the vetting process by the National Assembly. This is a sacred mandate given to the House ...,” the judge ruled.
Justice Nderi said the process is participatory and the court only hopes that appropriate presentation is made to the National Assembly by members of the public to enrich that process.
The judge also dismissed the preliminary objections raised by the National Assembly and the Attorney General, arguing it had no jurisdiction to hear the matter.
The court said it has jurisdiction to hear all the consolidated matters filed before it, adding that the preliminary objections raised in the case are without merit and were dismissed.
Justice Nderi said the office of the PS is an office in the public service and the appointment and tenure of a person in that office is subject to the values and principles of public service under Article 232.
He also ruled that the office of PS is distinct from the position of a commissioner in an independent commission, or a judge of superior court or persons elected in an elective position.
It was his further ruling that PSs are subject to a full-fledged recruitment process comprising advertisement of the positions and invitations to those interested to apply.
“They are shortlisted then interviews conducted by the Public Service Commission then the successful candidates’ names are forwarded to the President for nomination," Justice Nderi said.
However, he said this rigorous process must meet the requirements under the law of fair labour practices.
Thus, the court held that the recruitment of a PS is indeed an employment and labour relations matter within the meanings of the Employment and Labour Relations Court Act.
The National Assembly said that according to the law, if the 51 nominees are not vetted within 28 days, then they will automatically be sworn into office.
However, the petitioners said that law cannot apply in this case because it’s not the National Assembly that delayed the process but the court.
LSK, through lawyers Stephen Muli and Kevin Walumbe, argued that the list disregarded 426 qualified candidates for the position.
“The composition of the list of 51 nominated for approval was after disregarding and ignoring other 426 candidates who were qualified and some would have been nominated to meet the constitutional dictate for regional balance, gender equality, youths and people living with disabilities,” the application reads
LSK said there is no justification whatsoever why the list of nominees does not depict the national face.
The society said the list of nominees is discriminatory and in total disregard for the law.
“The people of Kenya will be adversely affected in their capacity and collectively as an organisation working with an executive that does not reflect the face of Kenya,” LSK said.
(edited by Amol Awuor)