Itumbi challenges court order barring CASs from taking office

ICT Chief Administrative Secretary Dennis Itumbi has moved to court challenging a judicial decision barring him and 49 others from assuming office after last week’s swearing-in.

Itumbi has filed an affidavit through Adrian Kamotho Njenga & Co Advocates stating that the order was issued based on incomplete information presented by the petitioners, the Law Society of Kenya and Katiba Institute.

“The petitioners failed to disclose the existence of Gazette Notice No. 12432 of 2022, which solidly anchored the appointment of the Interested Parties,” he noted.

On March 23, 2023, the petitioners approached the High Court seeking various reliefs, including interim conservatory orders restraining the Interested Parties from assuming or continuing to act as the Chief Administrative Secretary.

The appointees were also barred from earning any salary, remuneration, and any benefit in the interim. Lady Justice Ong’udi issued interim conservatory orders on March 24, 2023, and set mention on March 28, 2023, for further directions.

Itumbi’s affidavit argued that the appointment process of the Interested Parties was sound, valid, and effective, as anchored by Gazette Notice No. 12432 of 2022. The notice was published on October 12, 2022, in Vol. CXXIV-No. 210 of the Kenya Gazette, and has never been suspended nor invalidated by any competent court.

Itumbi also noted that the alleged recommendation by Joseph Kinyua, the former head of public service, requesting for a vacancy declaration of 23 vacancies, was a legal misadventure.

He argued that Article 132(4)(a) of the Constitution mandates the President to establish an office in the public service in accordance with the recommendation of the Public Service Commission. However, Article 234(2)(a)(ii) of the Constitution confers upon the 2nd Respondent (PSC) unfettered latitude to establish and abolish offices in the public service subject to the Constitution and legislation. Thus, the alleged recommendation had no legal basis.

Itumbi argued that there is no known law that caps the number of Chief Administrative Secretaries at 23.

“The number of office holders to recommend is purely within the province of the 2nd Respondent (PSC) based on a comprehensive workload analysis, among other relevant considerations,” Itumbi stated in his affidavit.

Itumbi’s legal counsel argued that the interim conservatory orders were irregularly issued based on incomplete information presented by the petitioners. They sought an urgent hearing of the matter to challenge the orders, which they believe were erroneously issued.

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