In documents filed at the Milimani High Court, Itumbi also wants the orders barring CASs from assuming office set aside immediately to allow the officers to start working.
Itumbi argues that the petitioners, the Law Society of Kenya and Katiba Institute, misled the court and that the case is intended to “subvert the operations of the government”.
Through lawyer Adrian Kamotho, Itumbi said the petitioners “misled the court to issuing irregular orders”.
According to the CAS, the petitioners failed to disclose that the process leading to the appointments is anchored in a 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 issued, had the Petitioners not irregularly withheld c******l matters from the court,” lawyer Kamotho said.
According to the court orders issued by Justice Hedwig Oug’udi at the High Court in Nairobi last Friday, all the 50 CASs were “restrained and barred from assuming or continuing to act Chief Administrative Secretary”.
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 i*****l.
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.
“The number of office holders to recommend is purely within the province of the PSC based on a comprehensive workload analysis among other relevant considerations. The court cannot be invited to render drastic reliefs as sought here on the basis of legally non-binding proposals borne in the correspondence by Joseph Kinyua, former h**d of public service,” Kamotho added.
He added that the petitioners “fraudulently misled the court to issue irregular orders, by cunningly stating that the appointments contravened an unauthenticated letter addressed to the Chairperson of the Public Service Commission by Joseph Kinyua, a former h**d of public service requesting for a vacancy declaration of 23 vacancies.”
“For the avoidance of doubt, 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,” the lawyer stated.
“The alleged recommendation by Kinyua requesting for a vacancy declaration of 23 vacancies is a legal misadventure, and is inherently incompatible with Article 234 (2) (a) (ii) of the Constitution which confers upon the PSC unfettered latitude to establish and abolish offices in the public service subject to the Constitution and legislation,” he continued.
He added that the dispute ought to be canvassed at the Employment and Labour Relations Court, not the Human Rights and Constitutional division.
“The actions of the petitioners point to a serious conspiracy calculated to capture and subvert the operations of the Government in pursuit of a personalized agenda that runs counter to the public interest,” the lawyer said.
“Thus, from all perspectives, the reliefs sought are disproportionate and life-threatening since they leave the CASs within the path of danger and without a source of livelihood,” Kamotho said.
The case will be mentioned on Tuesday for hearing and directions.
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