Kenya’s High Court Judge, Justice Jairus Ngaah, disagreed with two other judges in his finding that Cabinet Secretaries dismissed by the President cannot be reappointed, a decision that directly affects President William Ruto’s Cabinet changes following the 2024 protests.
In a detailed judgment, the judge affirmed that the dismissal of Cabinet Secretaries is not the same as reassignment, and that the two actions cannot be treated as interchangeable under the Constitution.
The ruling follows a case filed by activists and civil society groups challenging the legality of President Ruto’s decision to dismiss his Cabinet in 2024 and reappoint some of the same officials.
High Court on Difference Between Dismissal and Reassignment
In his dissenting ruling, Justice Ngaah drew a clear line between dismissal and reassignment under Article 152 of the Constitution.
The judge said reassignment under Article 152(5)(a) applies only when a Cabinet Secretary remains in office but is moved to another ministry.
However, dismissal under Article 152(5)(b), the judge explained, completely removes a Cabinet Secretary from office.
“The point is, it cannot be assumed that in dismissing his cabinet, the President was, in actual sense, reassigning cabinet secretaries,” the Judge stated.
He added that dismissal and reassignment are “worlds apart” and cannot be used as alternatives or substitutes for one another.
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This means that once a Cabinet Secretary is dismissed, the position becomes vacant in law, and any future appointment must comply fully with constitutional requirements as a fresh nomination.
Court Finds Cabinet Secretaries’ Reappointments Unlawful
Based on that reasoning, Justice Ngaah argued that President Ruto acted outside the Constitution by reappointing individuals who had already been dismissed from Cabinet.
The position of Justice Ngaah was, however, overshadowed by the majority of Justices Eric Ogola and Stephen Githinji, who dismissed a prayer seeking to declare the reappointments made by President Ruto after the June 2024 protests null and void.
Ogola and Githinji found that re-nomination and appointment of former Cabinet Secretaries following the dissolution of Cabinet on July 11, 2024, did not violate Articles 75, 129, 131, 152 or any other provision of the Constitution.
Further, the two judges ruled the Constitution of Kenya, 2010 does not establish an official ‘opposition’ and does not prohibit the appointment of persons affiliated with political parties outside the governing coalition to Cabinet or other appointive State offices.
The Cabinet had been dissolved amid nationwide protests against the Finance Bill 2024, with the President saying the move was intended to improve efficiency and address public concerns.
According to Justice Ngaah, dismissed Cabinet Secretaries vacate office entirely and cannot legally continue in any form without a fresh constitutional process.
The judge added that dismissal extinguishes the tenure of the office holder, triggering a complete break in service rather than a temporary administrative shift.
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He clarified that attempts to rely on reassignment provisions to sustain continuity after dismissal amount to a misapplication of Article 152.
Justice Jairus Ngaah’s Dissent
On their part, the majority judges found that the Constitution does not expressly prohibit the President from reappointing individuals who have previously been removed from office.
They interpreted Article 152(5) as granting the President broad authority to appoint, dismiss and reassign Cabinet Secretaries as part of executive management.
Ogolla and Githinji argued that dismissal is a political and administrative act and does not constitute a finding of misconduct or a constitutional violation against the affected individuals.
For that reason, removal from office cannot, on its own, create a permanent bar to future appointment.
The duo further held that Article 75(3), which provides for disqualification from holding State office, applies only where a person has been removed following a proven breach of the Constitution or of integrity provisions under Chapter Six.
In the absence of such a finding, the judges said, the individuals remain eligible.
Ngaah also disagreed with the reliance on Article 259, stating that constitutional interpretation should not be used to impose restrictions not expressly provided.
He concluded that the President acted within constitutional discretion.
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