• Justice Hedwig Ong'undi on Friday last week temporarily stopped the appointees from earning any salary, or remuneration until the case filed is heard and determined.
• But through lawyer Adrian Kamotho, Itumbi argues in his petition that the court lacked jurisdiction to issue the conservatory orders.
Image: PCS
ICT and Digital Economy Chief Administrative Secretary Dennis Itumbi has moved to court seeking the lifting of a court order that barred the 50 CAS from occupying their offices or earning salaries.
Justice Hedwig Ong'undi on Friday last week temporarily stopped the appointees from earning any salary, remuneration or any benefit until a case filed by the Law Society of Kenya and Katiba Institute is heard and determined.
The petitioners argued that their appointment went against a communication from the Head of Public Service in October last year that the Public Service Commission declared only 23 vacancies for CAS posts.
"Having read through the annexures, I am satisfied that interim conservatory orders are necessary," Justice Ong'undi ruled and set the hearing date for Tuesday, March 28.
PSC and President William Ruto were listed as respondents in the suit.
But through lawyer Adrian Kamotho, Itumbi argues in his petition that the court lacked jurisdiction to issue the conservatory orders.
He further argues that LSK and Katiba Institute misled the court by failing to disclose some critical information.
Itumbi further avers that the gazette notice issued on October 12, 2022, inviting applicants for the posts has never been invalidated nor declared null or void.
"By deceptively failing to disclose the subsistence of Gazette Notice No. 12432 of 2022, the appointment of the Intended Interested Party, the Petitioner fraudulently misled the Honorable Court to issue irregular 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.”
He further says that the President is vide Article 234 (2) (a) (ii) of the Constitutional granted unlimited powers to establish or abolish any office in the public service.
He adds that there is no known law that caps the number of CASs at 23 saying that the decision lies with the President depending on the workload at hand.
"The alleged recommendation by Mr Kinyua requesting for a vacancy declaration of 23 vacancies is a legal misadventure," Itumbi says in his suit.
The Digital CAS has further told the court that LSK's case that sought to stop the recruitment of the CASs was dismissed by Employment and Labour Relations Court for lack of merit.
He says the LSK should have moved to the Appellate court if it was dissatisfied with the ruling instead of seeking the conservatory orders to bar the CASs from office.
Itumbi further argues that the President cannot be sued in his personal capacity and cites the loss of livelihoods for the CASs by virtue of lack of salaries.
"The 1st Petitioner is attempting to unconstitutionally address an imaginary grievance by indiscriminately shuttling from one court to the other in utter disregard of the jurisdictional demarcation expressed by the Constitution," he said.
Justice Ong'undi certified the matter as urgent and said he will issue directions during the mention of the LSK and Katiba Institute case on Tuesday.
"I, therefore, direct that the application be served on all parties immediately," he said.