President William Ruto's CAS appointees will know on July 3 if they will be allowed to assume office and start earning salaries.
The 50 Chief Administrative Secretaries were appointed in March but that move was challenged in court where a judge issued orders stopping them from assuming office and earning salaries.
On Friday, a three-judge bench that heard the case for two days said it will render its decision on the matter on July 3.
Parties made their final submissions before Justices Kanyi Kimondo, Hedwig Ong’udi and Aleem Visram on Friday with the CASs maintaining that their appointment was lawful.
President Ruto on March 16 this year nominated for appointment 50 nominees for the position of CAS against 23 vacancies. The 50 were nominated from a list of 240 shortlisted candidates.
The effect of this was three cases being lodged before the High Court one by a Kenyan citizen living in the UK Eliud Matindi, and another by Law Society of Kenya in conjunction with Katiba Institute and another by a Kenyan citizen. The cases were consolidated and heard together.
LSK and Katiba in their submissions argued that the said nomination went against a letter to the chairperson of the Public Service Commission from the Head of public service requesting for a vacancy declaration of 23 vacancies in the office of CAS. They said at the time of their application for the position of CAS, only 23 vacancies lawfully existed.
The petitioners sought to have the court nullify the decision of the President to create an additional 27 CAS positions. They also accused the Public Service Commission of abdicating its roles which they say has enabled the President to establish 27 additional offices in violation of the constitution.
Katiba through lawyer Dudley Ochiel, told the three-judge bench that the decision to expand the positions violated principles of public participation and good governance.
He said neither Katiba Institute nor the public was ever supplied with information regarding the financial implication of creating the posts.
“No document with that information has been produced before the court, either. Instead, it has emerged that PSC established and doubled the office of CAS with no information, particularly on the financial implications,” he said.
The court heard that the financial implications were not considered in October 2022, when the office of CAS was created, or on February 27, 2023, when the PSC concurred with the President to increase the number by 27.
In addition, Matindi said, “Through the unilateral decision by the President to unconstitutionally and unlawfully create an additional 27 positions, none of the 50 Interested Parties (CASs) knows whether the position to which they have been nominated for is the lawful or unlawful one,” he said.
The Attorney General, the PSC and the CASs who have been listed as interested parties in the case argued that the matter had been filed before the wrong court. They said the issues raised in the petitions before court were a preserve for the Employment and Labour court. They argued that the High Court lacked jurisdiction to hear the case.
Separately, Chief of Staff Felix Koskey in an affidavit said there is no express provision of law limiting the number of persons to be appointed as CAS.
He said the decision to vary the compliment from the initial one per ministry to one per state department was a rational one and was undertaken procedurally.
He claimed PSC wrote to the National Treasury seeking concurrence on availability of funds to meet the resultant expenditure of additional employment of CAS before approving the complement of CAS.
“I am informed by the Principal Secretary to the National Treasury which information I believe to be true, that he advised the Public Service Commission that he had no objection and that in light of the fiscal framework, the effective date for bringing the CAS on board should be from April 1, 2023.”
“That employers may recruit additional persons into the public service over and above advertised vacancies from the same shortlist is not unique to the current matter,”he added.
The CASs who were represented by various advocates also supported arguments by the AG and PSC in terms of lack of jurisdiction by the High Court.
CAS Samuel Tunai and Evans Kidero further said, “it is immaterial how many persons are appointed to the position provided the Public Service Commission makes this decision rationally taking into account certain factors such as ensuring there is budgetary provision for the number of positions filled.”
They told the court that Treasury was consulted before a decision was made to change the number of CAS from one per ministry to one per state department.
They said Treasury confirmed availability of funds to meet the expenditure that would arise from the appointment of 50 CASs.
In closing, Dennis Itumbi through lawyer Adrian Kamotho said there is no known law that caps the number of Chief Administrative Secretaries at 23.