A Nakuru doctor has filed a case at the High Court against Health Cabinet Secretary Susan Nakhumicha for promoting junior officials to senior management positions in the ministry, thus placing them above their superiors, saying its likely to compromise service delivery.
Dr Benjamin Magare Gikenyi alleges that the appointments of the officials through a memo dated April 19 puts the junior officials in the awkward position of having to supervise their supervisors.
“The failure to observe seniority in acting appointments or deployments will certainly create quagmire situations and chaos in the public service as a substantive junior officer may be elevated to the supervisory role over his superior, thus creating difficulties in disciplinary control as a junior officer cannot commence or participate in disciplinary proceedings against his superior in terms of the statutory general principles of a disciplinary process,” Dr Gikenyi says in court papers.
He has named Ms Nakhumicha, Attorney-General Justin Muturi and the Public Service Commission (PSC) as respondents in the case and 59 officials as interested parties. He wants the court to issue a temporary order suspending the appointments pending the determination of the case.
In the petition, Dr Magare indicates that over 50 per cent of the appointees are junior officers to those they supervise.
In the memo, the CS made appointments of the senior management team in the ministry, a move Dr Magare says was made in blatant violation of the constitution and relevant statutes.
“The law and/or principle that an officer shall not supervise his superior colleagues, envisaged in articles 28 and 29 of the constitution, is so cardinal that section B.29 of the PSC Human Resource Policies and Procedures Manual … distinguishes seniority between officers in the same grade/job group,” says the petition.
He said the AG, the principal legal adviser to the government, failed or abdicated his constitutional duties or was simply ignored.
“The public stands to suffer if the action of Ms Nakhumicha is not restrained in the manner sought in the Notice of Motion. We are a country governed by the laws of the country. Respondents are not an exception,” states the petition.
Dr Magare further says the CS reappointed Dr Patrick Amoth as the Acting Director-General, a position he has continuously held for over three years in contravention of section 34 (3) & (5)(b) of the Public Service Commission Act.
The Act, he says, states that an officer may be appointed in an acting capacity for a period of at least 30 days but not exceeding a period of six months, and that an acting appointment shall not undermine the expeditious appointment of a competent person to the office concerned.
“The purported extension of appointment by the 1st Respondent of Dr Patrick Amoth for over three (3) years from on or around January 2020 as the Acting Director-General of Health is an act of impunity and thus a violation of the foregoing provisions of Articles 10, 73 and 232 of the constitution,” it states
He wants the court to compel the ministry to appoint the senior management team in strict compliance with the provisions of section 34 of the Public Service Commission Act and other relevant provisions in the human resource manuals.
