AG Muturi to appeal High Court judgment on CAS position

Attorney General Justin Muturi before the Senate Ad-hoc Committee that was investigating the proliferation of religious organisations in Kenya Shakahola deaths on May 10th, 2023. [Boniface Okendo, Standard]

Attorney General Justin Muturi has vowed to challenge a High Court ruling by a three-judge bench that found the creation of the Chief Administrative Secretary (CAS) position illegal.

"The Attorney General is desirous of filing an appeal against part of the judgment at the Court of Appeal," reads a statement from his office.

"In this regard, kindly furnish the Office of the Attorney General with typed proceedings and a certified copy of judgment and decree to enable us to file an Appeal."

Justices Alansir Visram, Hedwig Ong'undi and Kanyi Kimondo heard the case that was filed by a Kenyan residing in the UK Elijah Matindi together with the Law Society of Kenya (LSK), Katiba Institute and Multy Touch International.

They had sued President William Ruto, AG Muturi, Parliament, the Salaries and Remuneration Commission (SRC) and Public Service Commission (PSC).

The case also had 51 interested parties.

Visram and Kimondo found that the creation of the office was unconstitutional since it mirrored the position of Assistant Minister which had been done away with in the 2010 constitution.

They found that the CAS position is in between that of a Cabinet Secretary and Principal Secretary (PS) and could not assume office without vetting and approval by the National Assembly.

On the question of whether the president can create such a position, the two Judges argued that the power lies with Parliament.

The three judges found that President William Ruto's decision to create an extra 27 CAS positions was also unconstitutional.

Justice Ong'undi in a dissenting opinion found that there was justification for creating the position adding that the PSC created them after winning a case that had been filed by the LSK.

She however agreed with her colleagues that the positions were created without public participation and consultation.

In his submissions, AG Muturi argued that the petitioner's main argument was that the CAS position would burden the taxpayer, and PSC and Parliament had not advised the Ruto that Kenyans were unable to.

He added that the issue of cost/expenditure can only be determined by parliament.

He added that President Ruto followed the law and that he was acting on recommendations from PSC.

Head of Public Service Felix Koskei said that he wrote to Treasury PS Chris Kiptoo asking whether the country was in a position to shoulder the cost that would come from the positions and that his response was affirmative.