The appointment of senior Ministry of Health officials has been nullified.
The Employment and Labour Relations Court in Nairobi has also directed the government to recruit a substantive Director General of Health.
Justice Byram Ongaya's orders invalidate all appointments by Cabinet Secretary Susan Nakhumicha save for the Acting Director General for Health Patrick Amoth.
The court faulted Nakhumicha for usurping the Public Service Commission (PSC) powers by failure to seek its approval.
"All the appointments or deployments by the Cabinet Secretary except for the Acting Director General of Medical Services were unconstitutional and ultra vires relevant statutory and regulatory or policy provisions," ruled Justice Ongaya.
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The judge also reversed Nakhumicha's decision to replace Dr Soren Otieno as the National Spinal Injury Hospital superintendent. He ruled that the replacement by Dr Peter Shikuku without a change of designation was illegal and unconstitutional.
Impugned memo
"By issuing the impugned memo of April 19, 2023, the Cabinet Secretary for Health purported to exercise the human resource powers and functions that have been delegated by the Commission to the authorised officers in the Ministries and State Departments contrary to the law and the delegation instrument," he said.
A Nakuru-based surgeon Dr Gikenyi Magayi filed the case, arguing that Nakhumicha usurped the constitutional and statutory powers and functions of PSC.
In this case, PSC threw Nakhimicha under the bus. It faulted her for making appointments without its involvement.
The commission maintained that all the offices and positions outlined under the State Department for Public Health and Professional Standards do not exist as they have not been established and approved.
In his case, Gikenyi faulted Nakhumicha in appointing 59 health officials to newly created positions at the level of Director General of Health, Deputy Director General of Health, Directors, and Divisional Heads in acting capacity.
The appointment of Dr Amoth continuously for three years, he said, is a contravention of the PSC Act.
PSC Deputy Commission Secretary (Corporate Services) Remmy Mulati, in their response, said the CS violated the Constitution, the PSC Act, 2017, the PSC Regulations, 2020, and the commission's delegation instrument on December 14, 2022, issued to the authorised officers.
"It is the commission's position that the actions by the Cabinet Secretary for Health through the impugned internal memo of 19th April 2023 are unconstitutional, illegal as they constitute a usurpation of the constitutional and statutory powers of the commission," stated PSC.
"Offices and positions for which persons may be appointed to hold or act in must first be established by the commission before such appointments are made by the law."
The CS and the AG, in a joint response, argued for the case to be dismissed.
Stephen Khaemba, the deputy director of human resources at the ministry, said the CS was merely communicating on the temporary deployment of officers arising out of the government through Executive Order No 1 of 2022 and revised by Executive Order No 1 of 2023.
The order, he said, created two state departments.
jmuthoni@standardmedia.co.ke
Health CS Susan Nakhumicha on November 27, 2023. [Boniface Okendo, Standard]