High Court has barred the appointed 50 CAS from being in office pending the determination of an application filed by the Law Society of Kenya and Katiba Institute.
Justice Hedwig Ong'undi has also temporarily stopped the appointees from earning any salary, remuneration or any benefit.
Through lawyer Dan Okemwa, LSK and Katiba said the nomination goes against a letter to the chairperson of the Public Service Commission from the Head of Public Service in October last year requesting for a vacancy declaration of 23 vacancies in the office of CAS.
“At the time of their application, only 23 vacancies lawfully existed. Through the unilateral decision by PSC to unconstitutionally and unlawfully create an additional 27 positions, there exist serious doubts as to the legality and irregularity of their appointments,” he said.
The two accused PSC of abdicating its roles which they say has enabled the President to establish 27 additional offices in violation of the constitution.
“There is an eminent threat of infringement of the Constitution if the interested parties proceed to assume office,” they said
They told the court the move by the President to unconstitutionally create an additional 27 offices in the public service to be financed using public funds violates article 201 and 228 (5) which calls for prudent use of public service.
The petition according to the court documents seeks to examine the powers of the president to create an office for the public and whether he can disregard the recommendations of the psc.
Those sued are the President and PSC.
LSK explained that they sued the President because the Executive nominated the 50 who he has recently appointed as CAS.
The case will be mentioned on March 28 for further directions.
The Judge directed LSK and Katiba to serve the application on the President and PSC immediately.
Responses are to be filed and served by close of business on March 27.
This is the second case to be filed in court challenging the nomination of CASs.
The first one was filed by Eliud Matindi, a Kenyan citizen residing in the United Kingdom.
But when the matter was coming up for hearing, the order he sought had already been overtaken by events since the CAS had already been sworn in.
The Attorney General at the same time objected to the suit saying it was filed in the wrong division.
Chief State Counsel Emmanuel Bita in opposing Eliud Matindi's case said the High courts constitutional and human rights division does not have jurisdiction to handle the matter.
Bita says questions arising from a process for the employment of public offices fall within the jurisdiction of the employment and labour relations court.
Apart from the issue of jurisdiction, Bita has objected to the suit on grounds that the President was wrongly sued.
He has cited the supreme court decision in the BBI case which held that "civil proceedings cannot be instituted in any court against the president or the person performing the functions of the President during their tenure of office in respect of anything done or not done contrary to the constitution of Kenya, 2010”
The AG argues the President has been wrongly sued in the proceedings by Eliud.
“In any event, no order can be issued against the president or holder of the said office under our constitution,” the AG said.
He has asked the court to dismiss the matter as filed by Eliud for want of jurisdiction.
The Judge in this case directed the parties to also appear before her on March 28 for a ruling date on the objections raised by the AG’s office.