Reeling from a bold move by the High Court on Friday to strike down Ruto’s first Finance law — his pet instrument allowing him to implement revenue-raising measures to fund his lofty campaign manifesto — the impending decision by the court on the Cabinet officials is being closely monitored by the house on the hill.
The CAS case was filed by Karanja Matindi - a Kenyan citizen residing in London - alongside the Law Society of Kenya seeking to strike down the positions on account of want of constitutionality.
A three-judge bench that heard the matter – which Katiba Institute is also part - said it would render its decision on the issue on July 3.
A notice of the decision seen by the Star says that judges Kanyi Kimondo, Hedwig Ong’undi and Visram Aleem Alnashir will read the determination in Court 1 on the third floor of Milimani courthouse at 9am.
Should the High Court strike down the positions, it could worsen the President’s deepening wound he has so far sustained from the courts.
On the same last Friday, the court stayed the controversial transactions by the Kenya National Trading Corporation in importing edible oil.
The edible oil injunction was borne from a case by the LSK and allowed it to mount a substantive challenge to the import transaction.
The gist of the CAS petition is that the President violated the Constitution and the law by unveiling the 50 positions yet the official letter from the Head of Public Service Felix Koskei directing the Public Service Commission to create the impugned dockets recommended only 23.
"Nominating 50 persons for appointment to the office of CAS, when only 23 vacancies were proposed by the PSC advertised and recruited to, is untenable by all accounts," petitioner Matindi stated in the litigation documents.
Ruto named the team in March in a complete departure from his predecessor who appointed 23, causing uproar amid concerns the wage bill was getting out of reach.
The Salaries and Remuneration Commission estimates the public wage bill would hit Sh1 trillion in the near term, exclusive of the fringes that come with some of the big state jobs.
The CAS nominees – majority poll losers – were sworn into office the same month after the National Assembly declined to vet them.
They are Ann Mwangi, Nicholas Rioba and Edwin Sudi of the DP’s office.
Sharif Athman, Isaac Mwaura and Rehema Hassan were appointed to the office of the Prime Cabinet Secretary.
Others are Samuel Kuntai (Interior), Millicent Omanga (Interior), Mohamud Saleh (Interior), Alfred Agoi (Defence), Joseph Limo (Treasury), Beatrice Nyaga (Treasury), Joash Maangi (Foreign Affairs), Catherine Waruguru (Foreign Affairs), Hussein Dado (Gender), Nancy Kibaba (Gender), Benjamin Washiali (Roads), Nicholas Gumbo (Roads), Kimani Ngunjiri (Lands) and Victor Munyaka (Lands).
Ruto also nominated Dennis Itumbi to ICT ministry, Simon Kamau (ICT), James Mbaluka (Health), Khatib Mwashetani (Health), Stephen Loldepe (Education), Mark Lomunokol (Education), Mohamed Gure (Education), Jackson Kiptanui (Agriculture), Daniel Kiongo (Agriculture), Evans Kidero (Trade), Vincent Mogaka (Trade) and Lilian Cheptoo (Trade).
Also on the list are Margaret Wanjiru (SMEs), Amos Chege (SMEs), Wesley Korir (Sports), Charles Kanyi (Sports), Jackline Lukalo (Environment), John Muchiri (Environment), Wilson Sossion (Tourism), Rehema Jaldesa (Tourism), Chris Wamalwa (Water), Sunya Orre (Water) and Mary Seneta (Energy).
Also named as CAS are John Lodepe (Energy), Elijah Gitonga (Labour), Amani Mabruki (EAC), Rael Lelei (EAC), Fred Outa (Mining), David Kiplagat (Mining) and Allan kibet (State Law Office).
The petitioners averred there was violation of the Constitution.
"The 1st respondent [Ruto] violated the Constitution and the law by creating the office of CAS and, specifically, the additional 27 positions and nominating 50 persons – the 2nd to 51st Interested Parties – to be approved by the National Assembly for their appointment to the nominated positions,” the court papers alleged.
They added that, “The PSC proposed, and the President accepted, the creation of 23 positions of the office of CAS. The recruitment process carried out by the PSC to recruit persons to the newly-created office was on the basis of there being 23 vacant positions.”
Ruto has come under heavy criticism over the 50 CASs, who have been termed an extra burden to an already bloated wage bill.
The CASs are set to earn a gross salary of Sh780,000 per month, as per an advisory by the SRC.
This means taxpayers would foot up to Sh468 million every year to keep the politicians on the job in gross salaries alone.
The figure is likely to go higher considering the allowances for the officers, most of whom were 2022 poll losers.
Being at the level of assistant Cabinet Secretaries, the officers stand to be facilitated with big cars, aides, and hospitality budgets, among other benefits including attractive insurance and medical cover.
The SRC had advised the PSC to pay the officers Sh459,113 in basic salary, Sh165,000 house allowance and Sh155,887 in salary market adjustment.
SRC said the remuneration takes into account the monetary worth of the job, which has been grouped at Grade F1.
Besides the monthly gross salary, CASs would be provided with an official car with an engine capacity not exceeding 3,000cc.
They would also be entitled to annual medical cover for themselves, one spouse, and as many as four children younger than 25 years.
The cover would include inpatient cover of Sh10 million, outpatient of Sh300,000, Sh150,000 for maternity, Sh75,000 for dental and Sh75,000 for optical.
On retirement, the SRC has provided that the state officers would be paid a service gratuity at the rate of 31 per cent of the annual pensionable emoluments for the period served.
“Where an employer establishes a pension scheme for the CAS appointed for a fixed term of office, the SRC shall review and advise on the rate of the employer’s contributions to the scheme or any financial retirement benefits,” the SRC said.
The lot would also be entitled to a car loan of Sh8 million and a mortgage of as much as Sh35 million, all of which are to be recovered within their term in office.
The mortgage would be serviced at three per cent interest per annum on a reducing balance.
The car loan and mortgage allocated to the CASs would be managed centrally by the National Treasury.
The CASs would also be paid a subsistence allowance of Sh22,000 per day for local travel.
Foreign travel would be facilitated per the prevailing rates for all public and state officers.
Also in the lucrative package is a monthly airtime allowance of Sh20,000, security as advised by the Inspector General of Police and a leave allowance of Sh50,000 per year.
Matindi had sought that the court bars the National Assembly from vetting the then-nominees.
Speaker Moses Wetang'ula said the vetting would not be done because it was not supported by any law.
The nominees were then sworn into office.
However, the High Court issued a restraining order against the CASs, barring them from accessing their offices and enjoying any benefits.
The order has not been discharged by the courts, even though there are allegations Ruto administration may have disregarded it.
The petitioners had also accused the PSC of irregularly facilitating and superintending over the creation of the additional 27 offices by President Ruto.
The administration’s defence is that the Executive followed the procedure in law in creating the positions.
It took refuge in the determination by the labour court in which Justice Monicah Mbaru had ruled that the PSC maintained fidelity to the procedures required in creating public offices.
In fact, the PSC argued that the right avenue for thrashing the current case should be the Employment and Labour Court, and not in the constitutional and human rights court where it is currently.
Constitutional lawyer Willis Otieno told the Star that the decision by the court will have significant impact either way.
"I expect the court to interpret the Constitution in a manner that engenders the values and the principles set out in it," he said, adding that " if they uphold the positions, it will give legal victory to the Executive but political questions will linger."
If court agrees with the petitioners, he said, the Executive will suffer both political and legal consequences and expose the President as incompetent to uphold the Constitution and rule of law.
"The decision will also impact how the administration deals with the illegality of admitting strangers to the Cabinet yet there is a court precedent in a case filed by Alice Wahome that it is illegal," Otieno added.
