The High Court, on Monday, declared President William Ruto’s appointment of 50 Chief Administrative Secretaries (CAS) as unconstitutional, in a decision that means the State must restart the process or drop them altogether.
In a majority decision, the court ruled that although there was “some reasonable public participation” on the first complement of 23 CASs, there was no such participation regarding the additional 27.
And for that matter, the failure to adhere to the constitutional requirement makes the entire list of 50 CASs illegal.
The judges said although the Court of Appeal preserved the original office created by former President Uhuru Kenyatta in January 2018, once the office was abolished by the Public Service Commission in September 21, 2022, the newly created office and complement of 23 office holders could no longer benefit from that suspension.
“Accordingly, the newly created office and fresh complement of 50 had to comply with the Constitution and the criteria set out earlier in Okiya’s (Omtatah) case in order to be lawfully established. They did not comply. For the avoidance of doubt, the entire complement of 50 CASs is, therefore, unconstitutional,” Justices Kanyi Kimondo and Aleem Visram said.
Lawyer Elias Mutuma described the judgment as a win-loss situation, arguing that in some part, the court told President Ruto that he can restart the process and follow the due process.
However, the lawyer said it is not guaranteed that the Court of Appeal will give Dr Ruto the nod to make the appointments.
“The Court of Appeal will give its view on the matter and I expect those who opposed the creation of the positions to give a spirited fight,” he said.
Adrian Kamotho said nothing stops the President from appointing 23 CASs, which the court found there was public participation.
The lawyer said the decision has brought more confusion than clarity because an initial decision by the Employment Court validated the appointment of 23 CASs.
“The court has purported to annul the position (of the CAS) when another court had found it to be valid,” he said.
Justice Hedwig Ong’udi dissented saying the establishment of 23 CAS posts was constitutional. However, the additional 27 posts created in the gazette notice were unconstitutional.
The court further declined to suspend the ruling, pending an appeal saying although the CASs were sworn into office, they never took office.
“A stay would amount to putting the CASs in office when the court has already found that the appointments unconstitutional,” the judges said.
The judges said the suspension of the decision quashing the creation of the CAS posts did not reverse the decision rendered by the High Court in the case filed by Busia Senator Okiya Omtatah.
Those who had been appointed to the positions include former governors Evans Kidero and Samuel Tunai, former MPs Isaac Mwaura, Millicent Omanga and Charles Njagua.
