The High Court has declared President William Ruto’s appointments of 50 Chief Administrative Secretaries (CAS) as unconstitutional.
In a majority decision, two judges ruled that there was ‘some reasonable public participation’ on the first complement of the 23 CASs, there was no such participation regarding the additional complements of 27 office holders.
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.
Justice Hedwig Ong’udi dissented saying the establishment of 23 CAS posts was constitutional. However, the additional 27 posts created in the gazette notice was unconstitutional.
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.
Among 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.
The judges noted that whereas they cannot review the decision issued by a judge of the same jurisdiction, they were not bound by it.
The court noted that the PSC received about 498 views, with 108 seeking for appointments, while 161 were for the support of the establishment the CAS office.
More than 200 views were against it because they considered it a duplication of roles played by the principal secretaries and would lead bloated wage bill or waste of resources.
The judges said whereas the President can establish an office as per his mandate, the establishment requires parliamentary approval.
“It is our considered view that it was not the intention of the framers of the Constitution to create positions of 50 CASs to deputise 22 cabinet secretaries,” the judges said.
The petitions were filed by the Law Society of Kenya (LSK), Katiba Institute and Eliud Karanja among others.
The PSC had classified CAS under CSG 3, which is equivalent to job Group V, making them entitled to a monthly salary of Sh765,188.
