Judge declines CASs request to assume office

The 50 Chief Administrative Secretaries will continue staying away from their new workstations pending a ruling on whether the High Court will lift orders blocking them from assuming office.

When the matter came up for directions yesterday, Justice Hedwig Ong’undi declined requests by four CASs to set aside the orders issued on Friday and allow them to return to the office, which they had held for one day.

CASs Dennis Itumbi, Evans Kidero, Samuel Tunai and Nicholas Gumbo told the court the orders were issued irregularly and were intended to “subvert the operations of the government”.

The legal dispute stemmed from two petitions filed by rights activist Eliud Matindi, the Law Society of Kenya (LSK) and Katiba Institute.

Ong’undi rejected the request to set aside the orders as it emerged there are several issues that are pending determination.

Among the issues pending determination is the powers of the court to hear and determine the lawsuits, empanelment of an uneven bench, consolidation of the two petitions and whether the court will allow LSK and Katiba Institute to amend their petition.

Three-judge bench

 Matindi wants the two lawsuits consolidated and referred to Chief Justice Martha Koome for appointment of a three-judge bench on grounds that the case raises novel substantial issues of law. He did not identify the said issues during the virtual court session.

 Attorney-General Justin Muturi for his part informed the judge he wants the court to first handle the issue of jurisdiction. Together with the public service commission and the Salaries and Remuneration Commission, the AG want the court to first determine the question of jurisdiction before any other application is dealt with.

 “Your honour the question on Jurisdiction is very vital in this case. We urge the court to first handled the same before any other issues is dealt with, “ the AG through Emmanuel Bitta told the judge.

 Katiba and LSK through lawyer Dudley Ochiel want to be allowed to amend their claims against the President, AG, National Assembly, PSC and SRC.

 “We wish to amend the petition to indicate that the 50 CASs violated Article 3 of the Constitution by failure to reject their appointments to an unconstitutional office,” said Ochiel.

 The court heard they also intend to amend the petition on the issue of why the Parliament failed to vet the CAS’s.

Conservatory orders

  Ochiel also sought to also be allowed to include the AG in their petition and also list Matindi as the third petitioner. The CASs through lawyers Adrian Kamotho, Peter Wanyama and Jotham Arwa said the interim conservatory orders should be lifted because they are giving the petitioners an uneven and unfair field on the dispute.

 “The conservatory orders have given the petitioners uneven and unfair advantage in the field in a matter that involves total misapprehension and misunderstanding of the provisions regarding powers of the President. Since the CASs hold office, issue of conservatory orders should be determined at earliest possible opportunity,” said Wanyama.

 “The petitioners are going to this battle with undue advantage,” he stated. He was representing Gumbo and Kidero.

 He also sought orders compelling the petitioners to serve all the 50 CAS’s with the lawsuit papers.

 “We seek to be served with Matindi’s petition via email as the petition by Katiba Institute and LSk we received the same via social media. My client’s right to be heard is fundamental as the orders the court may issue may affect them directly, “ Wanyama informed the Judge. Kamotho, for Itumbi, said the petitioners “misled the court to obtain irregular orders”.

 He said the petitioners failed to disclose that the process leading to the appointments is anchored by Gazette Notice, which has never been suspended nor invalidated by any court. He said the gazette notice remains sound, valid and effective.

 “The petitioners deceptively failed to disclose pertinent and germane material to the court. Consequently, the Petitioners knowingly misled the court to issue an injunctive order that would never have been issued, had the Petitioners not irregularly withheld critical matters from the court,” said Kamotho.

 According to the court orders issued by judge Oug’udi at the High Court in Nairobi on Friday last week, all the 50 CASs were “restrained and barred from assuming or continuing to act Chief Administrative Secretary”. The judge sits at the High Court Human Rights and Constitutional division.

 The appointees were further barred from earning any salary, remuneration and any benefit in the interim. The petitioners main contention is that President Ruto appointed 50 CASs while the Public Service Commission (PSC) had approved 23. They claim the additional 27 are illegal.  But in his application for striking out of the suit, Itumbi said there is no known law that caps the number of Chief Administrative Secretaries at 23.