The High Court has ruled that the process in establishment of the office of Chief Administrative Secretary (CAS) was unconstitutional.
High Court Judge Anthony Mrima also ruled that cabinet secretaries who continued to serve without being vetting in 2017 are in office illegally.
He added that any permanent secretary not competitively recruited by the Public Service Commission (PSC) is in office illegally.
“The process in establishing the office of the CAS and the manner in which the process towards recommending the persons for nomination to the position of Principal Secretaries was undertaken by PSC, called for compliance with the Constitution as well as the PSC Act, as to be subjected to a programme of public participation and stakeholder engagement,” he ruled.
Murema also directed the state to ensure two-third principles in all appointive positions must be realised immediately.
Further, the High Court wants Cabinet Secretaries who were appointed in the first term must be approved by National Assembly to serve in the second term of office.
However, the judge suspended the coming into force of the judgement for 30 days to allow the Attorney General(AG) to prepare a report on CSs, PSs and CASs.
The ruling comes after activist Okiya Omtata moved to court challenging the appointment of the officers and creation of the office of the CAS.
He argued that there was no public participation in the decision to introduce CASs as assistants to cabinet secretaries.
He also argued that lack of vetting of CSs and PSs was unconstitutional as they are not transferable from one term of the President to another.
“Their appointment is for a political goal of realising a government that reflects the diversity of our nation,” he claimed.
On January 26, 2018, President Uhuru Kenyatta announced the creation of the CAS position in every ministry.
“Fellow Kenyans as I mentioned a few weeks ago we are still in the process of finalizing cabinet and restructuring of government. Today I have a few names that I would like to read. But before I do so, let me say that for the efficient operation of government and indeed taking into account the need of having a government that reflects the diversity of our nation and indeed one that can help me deliver on my mandate I pledged to Kenyans over the campaign period and also having consulted the constitutional mandated body and receiving advise from the public service Commission as required by article (132) (4A) of our constitution, I have decided to establish a new position in government, the position of Chief Administrative Secretary in all our ministries,” he said.