President William Ruto on Friday, December 8 suffered yet another blow in his push to have 50 Cabinet Administrative Secretaries – CASs assume office. This is after the Court of Appeal declined to grant orders allowing the officers already appointed from rendering their services.
Petitioners, who included the Attorney General and the appointees, sought stay orders pending the hearing and determination of the appeal in the same Court.
“Taking all the foregoing into accounts, we are not persuaded that the applicants have satisfied us that their appeals will be rendered nugatory, if we do not stay execution of the impugned judgment of the High Court.
Having failed to satisfy both limbs under rule 5(2) (b) of the Court of Appeal Rules, this application fails and is dismissed, with costs, to those of the respondents in the four applications who appeared and opposed the applications. It is so ordered,” the Court of Appeal ruled.
Notably, the Court of Appeal bench that determined the petition comprised of Justices Kathurima M’inoti, Mumbi Ngugi, and Francis Tuiyott.
On 23rd March 2023 the High Court issued conservatory orders, whose effect was to prohibit the persons appointed to the office of CAS from assuming office until the hearing and determination of the petitions.
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The High Court declared that the office of CAS was unconstitutional; that there was no adequate public participation in the creation of the 27 extra CAS offices, that without approval of the National Assembly, the President and the Public Service Commission – PSC did not have power to create the office of CAS in the manner they had done; that the creation of the 50 CAS offices was at a substantial cost to the public.
Further, the Court had ruled that it was not the intendment of the framers of the Constitution to have 50 CAS deputizing only 22 Cabinet Secretaries
Petitioners’ arguments in Support of CASs positions
Solicitor General Shadrack Mose, while representing the Attorney General Justin Muturi faulted the High Court for dispensing a matter that was already at the Court of Appeal.
The State also anchored its argument on a determination of the Employment and Labor Relations Court, which held that the creation of the office of CAS was lawful.
In addition, the AG argued that President William Ruto created the offices following a needs assessment, the offices were tied to his term in office and nullification of the positions would affect delivery of his mandate to Kenyans.
Accordingly, the state underscored the crucial services that the CASs were set to offer to Kenyans and earn a living in the process.
Adrian Kamotho, who was representing Dennis Njue Itumbi, agreed with AG.
“…counsel submitted that the judgment of the High Court infringes on the powers of the President to establish public office which negatively affects service delivery to the nation.”
Further, the Itumbi’s lawyer argued that the CASs appointees would lose irreparable losses should they be locked out of office.
“That the CASs whose appointments were nullified stood to suffer irreparable injury because, upon appointment, they relinquished their former offices and positions;
that the said CASs were suddenly thrust into a life of idleness and their losses cannot be adequately compensated by award of damages.”
The respondents held that in the applications, “public interest superseded the applicant’s private financial interests.”
Null and Void Ruling
Justices Kathurima M’inoti, Mumbi Ngugi, and Francis Tuiyott held that delivery of public service is not pegged on CAS offices.
“Since the promulgation of the Constitution of Kenya more than 10 years ago, public service has been rendered on the basis of the framework established by the Constitution before the creation of the contested offices.
To displace that fact, the applicants need to place before the Court concrete evidence that the absence of the CASS is jeopardizing service delivery to the public,” the ruling read in part.
It added, “The applicants have not demonstrated any cataclysmic or debilitating consequences that will suddenly befall the people of Kenya as they await determination of the appeals.”
What’s more, the Court of Appeal maintained that service rendered by officers holding unconstitutional office is no service.
“Equally, we are not persuaded, at least in the immediate, that the collective destiny of the people of Kenya lies in the hands of 50 CASs whose offices are seriously contested.
Where purported service is rendered in violation of the Constitution, it does not require rocket science to fathom that it is not legitimate service beneficial to the public.
Service rendered in violation of the Constitution is no service at all in the eyes of the law.”
In addition,” We do not see how failure to assume a public office pursuant to a court order can form the basis of a legitimate claim for compensation for the period no work has been rendered.”
Fresh Push
Noteworthy, the ruling by the Court of Appeal on 50 CASs came days after President Ruto moved to amend the National Government Administration Laws to entrench the positions in law.
Majority Leader at the National Assembly Kimani Ichung’wah tabled the bill on the floor of the House, seeking to hand Ruto a through pass after the courts blocked his appointments.
The move sparked mixed reactions from leaders.
Also Read: Elachi Explains How CASs Will Boost Tax Payment
Kiharu Member of Parliament Ndindi Nyoro defended CAS positions aeguing that in most cases Cabinet Secretaries are always overwhelmed by work.
“The reasoning behind having CASs was to free up some time for the CS and PS to do the job. Much of the work you do is actually thinking. If you don’t get time to think, then you will end up being a marinated…you will be so busy doing a lot of many things but the output may not be seen,” Nyoro said in an interview.
On her part, Dagoretti North Member of Parliament Beatrice Elachi opined that CAS would boost revenue collection.
“Even if they get salaries, they will pay taxes. They employ others and ensure that we send more tax to government. It is not an issue of whether we have money or not,” stated Elachi who served as a CAS in former President Uhuru Kenyatta’s government.
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