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The decision was made by the majority judges including Justices Kanyi Kimondo and Aleem Visram while Justice Hedwig Ong’undi dissented.
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The bench held that it was not the intention of the framers of the 2010 Constitution to have 50 CAS to deputize 22 Cabinet Secretaries.
Image: PCS
Political Strategist Dennis Itumbi has pleaded with the Court of Appeal to suspend a decision by a three-judge bench that sent him and 49 other Chief Administrative Secretaries packing.
Through Lawyer Adrian Kamotho, Itumbi says unless the high court decision is suspended, he will remain in a state of career purgatory since he can neither serve in the office to which he was already recruited nor can they seek gainful employment since their fate is indeterminate.
Itumbi was among the 50 CAS nominees sworn in at State House in March as CAS in the ICT Ministry.
But his dream was cut short by a three-Judge bench who declared that the establishment of 50 CAS positions and appointment of the officeholders was unconstitutional.
The decision was made by the majority judges including Justices Kanyi Kimondo and Aleem Visram while Justice Hedwig Ong’undi dissented.
The bench held that it was not the intention of the framers of the 2010 constitution to have 50 CAS to deputize 22 Cabinet Secretaries.
They said the creation of a similar office to the assistant minister now in the name of CAS cannot be created in the manner in which Ruto and the PSC proceeded.
"The initial proposed number for the office was 23. Its discernable process undertaken by PSC was in reference to the 23. On the flip side, the sequence and procedure leading to the additional 27 posts did not adhere to public participation," said the bench.
Failure to adhere to the constitutional requirement, among them public participation in appointing the additional 27, invalidated the whole list.
Justice Ong’undi, however, had a different opinion. She was of the view that the establishment of the CAS office in regard to the 23 was constitutional but the 27 was not.
The majority in analyzing the created office observed that it falls in between that of the CS and PS.
Those two officers, the judges said, undergo vetting and approval by parliament but the CAS were appointed without passing through Parliament.
But Itumbi, in faulting their decision, says the high court judges made a mistake in declaring the entire complement as unconstitutional yet the matter is still pending determination at the court of appeal.
This is a result of other cases filed during former President Uhuru Kenyatta's reign that challenged the said office.
One was filed by Busia Senator Okiya Omtata before Justice Anthony Mrima and another before the Employment and Labour Relations Court.
Mrima found the office to be unconstitutional. He argued that there was no public participation in the decision to introduce CASs as assistants to cabinet secretaries
The case was appealed against and there currently exists a stay from the Court of Appeal over that decision.
The matter is still pending. On the other hand, the one filed before the Labour Court was later dismissed.
On that strength, Itumbi argues the constitutionality of the position of CAS is still subject to final determination by the Court of Appeal.
He claims the bench made a mistake by failing to appreciate that the issues raised in the petitions filed by Eliud Matindi, the Law Society of Kenya and Katiba Institute had already been conclusively addressed by the Employment and Labour Relations Court.
He faults the bench for declaring that the CAS post was created by the President and the Public Service Commission through a gazette notice yet the said notice was in reality a declaration of vacancies.
Itumbi further faults the judges for finding that there was no public participation for the additional 27 posts.
He says the exercise was conducted with respect to the position itself and not the number of vacancies.
He argues that the orders of the high court have crippled the delivery of government services undertaken through the United Democratic Alliance (UDA) manifesto.
“The orders have whimsically deprived the president the constitutional mandate bestowed by the constitution to establish an office in the public service in accordance with the recommendation of the Public Service Commission,” he says
So as to preserve the subject matter of the intended appeal, Itumbi has pleaded with the court to suspend the Kimondo decision and subsequent orders.
“Should the court eventually find merit in the intended appeal, it would be impossible to reverse the wheels of time to cater for the last period of service,” he adds.