The newly created positions of the Office of Chief Administrative Secretary declared unconstitutional despite public participation having been undertaken for the initial 23 positions of that office

Brief facts

The 5^th respondent, the Public Service Commission (PSC) invited members of the public for comments on the proposed establishment of the office of the Chief Administrative Secretary (the office of CAS). That was prompted by a proposal from the 1^st respondent (the President) to establish the office. On September 21, 2022, the PSC abolished the previous office of the CAS which was declared unconstitutional by the High Court in the case of Okiya Omtatah Okoiti & another v Public Service Commission & 73 others; Law Society of Kenya & another (Interested parties) [2021] eKLR (the Okiya case). That decision had been stayed by the Court of Appeal pending the hearing and determination of an appeal challenging it.

The PSC on October 12, 2022 invited applications for 23 positions in the office of CAS. The remuneration and benefits for the office was based on feedback received from the Salaries and Remuneration Commission (SRC). Thereafter, the advertisement was challenged in the Employment and Labour Relations Court (ELRC) and the court found that the PSC had complied with the process required to hire the 23 CASs. The President in his resolution dated March 16, 2023 nominated 50 persons for appointment. It was argued that the President acted unlawfully by nominating the 2^nd to 51^st interested parties for the CAS position when there were only 23 posts.

The 1^st petitioner averred that the offices were intended to be State offices, yet, the same had not been established either by the Constitution of Kenya, 2010 (Constitution) or an Act of Parliament. The 2^nd and 3^rd petitioners argued that the decision to form and expand the CAS office was not subjected to meaningful public participation. The 4^th petitioner argued that the appointments would increase the financial burden on citizens and waste public funds.

The 1^st petitioner prayed for various declarations and orders including nullification of the appointment of all the 50 CASs (the 2^nd to 51^st interested parties). The 2^nd and 3^rd petitioners sought among other prayers, a declaration that the President was bound by the recommendations of the PSC on creation of an office in the public service; and, a declaration that the recruitment process for the interested parties was in violation of the Constitution as well as the Public Service Act (PSC Act). The 4^th petitioner sought, inter alia, for a declaration that the appointment of the CASs was a waste of public funds and resources.

The Attorney General, the 2^nd respondent and the 19^th and 22^nd interested parties lodged preliminary objections to the jurisdiction of the court and asserted that the suit was res-judicata.

Issues

1. Whether failure to conduct public participation for the creation of additional posts of the office of the Chief Administrative Secretary rendered the process of establishing the extra posts unconstitutional. 
2. Whether the High Court sitting as a constitutional court had the jurisdiction to determine a petition challenging the creation and appointments to the office of Chief Administrative Secretary. 
3. Whether the issuance of stay orders against the judgment of the High Court declaring that the office of the Chief Administrative Secretary as then constituted was unconstitutional meant that parties reverted to the position subsisting prior to the judgment. 
4. Whether the President could establish a State office within the ranks of the public service without approval by the National Assembly. 
5. What was the role of the President and the Public Service Commission in the creation of an office in the public service?
6. What were the guidelines and components of meaningful public participation? 
7. Whether the misjoinder of the President in a suit challenging the establishment of the Office of Chief Administrative Secretary was fatal. 
8. Whether a court could consider new issues that were not contained in the pleadings but were raised through an amended petition which the court had declined to admit for having  been filed out of time. 

Held

1. A court's jurisdiction flowed from either the Constitution or legislation or both. Thus, a court of law could only exercise jurisdiction as conferred by the Constitution or other written law. It could not arrogate to itself jurisdiction exceeding that which was conferred upon it by law. The courts mandate had been properly invoked. In particular, the consolidated petition raised numerous and weighty constitutional issues that went beyond employer and employee issues. 

2. The primary or core issues before the court were in fact constitutional in nature, and called upon the court to interpret the Constitution as a whole in order to reach its conclusions in relation to the issues and reliefs sought. That exercise fell squarely within the confines of article 165(3)(d) of the Constitution, the court was properly seized of jurisdiction.

3. The instant dispute had been the subject of litigation in two previous matters over much of the same subject matter, namely, in Okiya Omtatah Okoiti & another v Public Service Commission & 73 others; Law Society of Kenya & another (Interested parties) [2021] eKLR and Petition No E174 of 2022 Law Society of Kenya v Public Service Commission & others in the Employment and Labour Relations Court (ELRC) (unreported). Res judicata applied to a number of issues in the instant consolidated petition and which had been litigated at length and determined, albeit involving different parties to the instant consolidated petition.

4. Several of the issues had been litigated even if some of the parties to the instant petition were different. Moreover, those issues ought to be res judicata on the basis that the issues in the instant matter were more akin to issues in rem rather than issues in personam because they affected a state of affairs, and the society at large within Kenya, rather than only private interests.

5. A court ought not to relitigate the same issues over and over, each time a new party filed a petition relating to the same subject matter. To do so would lead to an absurd outcome and embarrass the court with contradicting decisions.

6. From a reading of Okiya Omtatah Okoiti & another v Public Service Commission & 73 others; Law Society of Kenya & another (Interested parties) [2021] eKLR (Okiya case)and Petition No E174 of 2022 Law Society of Kenya v Public Service Commission & others in the Employment and Labour Relations Court (ELRC) (unreported) (LSK case), the High Court and the ELRC had already reached different conclusions in respect of a number of issues that were common to the two petitions. In order to avoid creating a third view in relation to the same issues, the court treated some of those issues determined in those cases as res judicata for the reason that they had been conclusively dealt with by a court of equal jurisdiction. 

7. The judgment in the Okiya case was pending appeal in the Court of Appeal. The original office of CAS established on January 24, 2018 and which was the subject in the Okiya case  was abolished by the PSC on September 21, 2022. That was the office that was the subject of the stay order in the Court of Appeal. The instant court ought not pronounce itself on issues that were pending appeal before a higher court.

8. The following issues relating to reliefs sought as listed below were res judicata:

1. The offices of CAS that the 1^st respondent created were State offices which could only be lawfully established and designated as State offices by national legislation.
2. The National Assembly had no constitutional powers to approve for appointment persons nominated to the CAS positions created by the 1^st respondent, including otherwise than in accordance with the recommendations of the 5^th respondent, and not established and designated as State offices by national legislation.
3. A declaration that the President was bound by the recommendations of the PSC on creation of an office in the public service under article 132(4)(a) of the Constitution.

The aforementioned issues ought to be excluded from the courts determination on the basis that the same were res judicata.

9. The guidelines for public participation were as follows: 

1. As a constitutional principle under article 10(2) of the Constitution, public participation applied to all aspects of governance.
2. The public officer and or entity charged with the performance of a particular duty bore the onus of ensuring and facilitating public participation.
3. The lack of a prescribed legal framework for public participation was no excuse for not conducting public participation; the onus was on the public entity to give effect to that constitutional principle using reasonable means.
4. Public participation must be real and not illusory. It was not a cosmetic or a public relations act. It was not a mere formality to be undertaken as a matter of course just to fulfill a constitutional requirement. There was need for both quantitative and qualitative components in public participation.
5. Public participation was not an abstract notion; it must be purposive and meaningful.
6. Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness would be determined on a case-to-case basis.
7. Public participation was not necessarily a process consisting of oral hearings, written submissions could also be made. The fact that someone was not heard was not enough to annul the process.
8. Allegation of lack of public participation did not automatically vitiate the process. The allegations must be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation was to be determined on a case-to-case basis. Components of meaningful public participation included the following;

i. clarity of the subject matter for the public to understand;

ii. structures and processes (medium of engagement) of participation that were clear and simple;

iii. opportunity for balanced influence from the public in general;

iv. commitment to the process;

v. inclusive and effective representation;

vi. integrity and transparency of the process;

vii. capacity to engage on the part of the public, including that the public must first be sensitized on the subject matter.

10. The initial proposed number for the office of CAS was 23 posts. The process of public participation that was undertaken by the PSC was with reference to the letter from the President to the PSC dated September 19, 2022, which only requested for 23 posts. On the flipside, the sequence and procedure that led to the establishment of the 27 additional posts did not adhere to the constitutional principle under articles 10 and 232 of the Constitution and conditions set out under section 27 of the PSC Act.

11. As a guiding principle, public participation must be real and cover all forms of governance. The public submitted comments in the public participation exercise based on creation of the CAS office in each Ministry not each State Department as indicated in the Presidents letter dated February 23, 2023. It was incumbent upon the PSC to prove that the public participation exercise covered all the additional 27 nominees. That was not done. Based on the record before the court, PSC failed in its mandate. The process of establishing the extra 27 posts was unconstitutional. 

12. The principles governing interpretation of the Constitution were well settled. The Constitution should be interpreted in a holistic manner, within its context, and in its spirit. The Constitution should be given a purposive interpretation where all provisions were read as a whole with each provision sustaining the other.

13. The history of the office of CAS was fairly recent having been first established on January 24, 2018. However, on April 20, 2021, the High Court in the Okiya case declared the office to be unconstitutional. That decision was stayed by the Court of Appeal in Public Service Commission & 72 others v Okiya Omtatah & 4 others Court of Appeal, Nairobi, Civil Appeal (Application) No E131 of 2021 [2021] eKLR [2021]. The main appeal was pending. The stay did not reverse the findings or declarations or orders of the High Court, that the office of CAS as then constituted was unconstitutional. The Court of Appeal only granted a stay of execution in the terms of prayers 2 and 3.

14. The court could not review or stand on appeal over a decision of a court of concurrent jurisdiction. However, the court was alive to the fact that it was not bound by the decisions of the High Court in the Okiya case and the ELRC in the LSK case. The suit before the ELRC was challenging the validity of the advertisement by the PSC dated September 21, 2022 inviting public views on the establishment of a new office for CAS. The petition was dismissed. 

15. The ELRC in the LSK case interpreted the stay by the Court of Appeal in Public Service Commission & 72 others v Okiya Omtatah & 4 others to mean that the PSC took into account the fact that after the Court of Appeal stayed the High Court judgment in the Okiya case, parties then reverted to the position subsisting prior to the judgment. The ELRC then went on to find that all the legal parameters for establishment of the office were met. The Law Society of Kenya did not appeal the dismissal of its petition by the ELRC. 

16. The courts established under article 162 of the Constitution had the same status as the High Court. Whereas the court had no power to review the decision of a judge of concurrent jurisdiction, the court was equally not bound by it. The instant court was of a different view from the position taken by the ELRC in the LSK case, especially because the findings by the High Court in the Okiya case that the office of CAS was unconstitutional had not been set aside and was pending appeal. 

17. Article 132(4)(a) of the Constitution expressly granted the President power to create an office in the public service. But in doing so, he and the PSC were bound to follow the requirements of the Constitution. Given the nature of the instant dispute, it was imperative for the PSC to file a replying affidavit clarifying the role it played in evaluating the request by the President, and seeking any advice from necessary bodies such as the SRC, and in rendering its final advice to the President.

18. Being a constitutional commission, the PSC was to be guided in its decisions by the principles outlined in article 10 of the Constitution for its actions. The failure by PSC to file a replying affidavit answering the specific allegations levelled against it, and to choose instead to rely on the defence by other parties or their depositions was a serious omission. It partly meant that some allegations by the petitioners against the PSC were not sufficiently rebutted.

19. The newly created office of CAS fell somewhere between two constitutional or State offices: that of the cabinet secretary (CS) and that of the principal secretary (PS). Those two officers underwent vetting and approval by Parliament but the CASs had been appointed and sworn into office without parliamentary approval.

20. Not every holder of high or State office underwent parliamentary approval. The CASs were for all purposes assistant cabinet secretaries reporting directly to the CS. The PS was relegated to the position where he reported to the CAS and the CS. Doubt was completely removed by their job description in Gazette Notice No 12432 of October 12, 2022, and duties specified therein, and the fact the CAS would be in a higher job group CSG 3 than the PS.

21. Whereas the President could establish a State office within the ranks of the public service, it required approval by the National Assembly. Such approval could be achieved by enactment of a statute, which provided for the same and further provided an appropriate framework for a cap on the numbers of CASs if necessary. The newly created office of CAS did not meet the constitutional threshold. 

22. The initial approved complement rose from 23 CASs to 50. By virtue of their salary and hierarchy, the creation of the offices would come at a substantial cost to the public. The Judicial Service Commission (JSC) had advertised for 6 posts of Court of Appeal judges but hired 7. That was distinguishable from the instant scenario on the basis that at the material time, there was a vacancy; and, JSC did not overshoot the ceiling of 30 judges set for the Court of Appeal.

23. The petitioner in Petition No E167 of 2021, Sheria Mtaani na Shadrack Wambui v Public Service Commission and 2 others [2021] eKLR challenged the employment of 350 persons by the PSC for the position of accountant II in the National Treasury but when the advertised vacancies were only 250. The petition was dismissed. But that decision could be distinguished for two reasons: firstly, in the instant consolidated petition, the office created was a high public office with substantial salaries and perks; and, secondly, the Sheria Mtaani case was dealing with hiring of lower cadre of public officers, being accountants II.

24. In interpreting the Constitution, the court was bound to adopt a purposive approach which sought to give effect to the true purpose of legislation and could examine material that bore upon the background against which the legislation was enacted. Kenya had for many years a cabinet consisting of ministers and assistant ministers whose composition or numbers was largely at the discretion of the President. The public clamour for control of the size of the Executive was reflected in the Draft Constitution of Kenya 2004 by the Constitution of Kenya Review Commission. Therefore, the creation of a similar office to the assistant minister, in name of CASs, could not be created in the manner the President and the PSC proceeded. It was not the intention of the framers of the Constitution to have 50 CASs deputizing 22 cabinet secretaries. Public participation on the office of CAS was founded on a complement of 23 CASs.

25. The stay in the Court of Appeal preserved the original office created on January 24, 2018. Once that office was abolished on September 21, 2022, the newly created office and complement of 23 office holders could no longer benefit from that stay. Accordingly, the newly created office and fresh complement of 50 had to comply with the Constitution and the criteria set out earlier in the Okiya case in order to be lawfully established. They did not comply. The entire complement of 50 CASs was therefore unconstitutional.

26. Article 230(4) of the Constitution provided for the powers and functions of the SRC as to set and regularly review the remuneration and benefits of all State officers and to advise the National and County Governments on the remuneration and benefits of all other public officers. The PSC should have consulted the SRC in order for it to ascertain the resultant financial implications.

27. Based on the separation of powers doctrine, budgetary concerns fell within the realm of policy, and rightly belonged to the other relevant arms of Government as may be appropriate. The court thus declined the invitation to delve any deeper into that arena.

28. Pursuant to article 143 of the Constitution, and based on the law, the 1^st respondent was improperly joined into the consolidated petition. The misjoinder was not fatal to the consolidated petition. The petitioners and future litigants should avoid that practice in light of the unequivocal pronouncement by the Supreme Court on that issue. 

29. In a constitutional suit a party that alleged violation of his or her rights must plead with reasonable precision the manner in which the rights had been violated. The mere citing of constitutional provisions was not enough. The petitioners must with some reasonable degree of precision identify the constitutional provisions that were alleged to have been violated, and the manner in which the provisions had been violated from the facts and evidence of the case. In the circumstances of the case and material placed before the court, the threshold had been met by the petitioners.

30. The 2^nd and 3^rd petitioners tried to introduce new issues that were not pleaded in the original petitions but were found in their further affidavit, supplementary affidavit, submissions, and found in the amended petition filed out of time, which the court declined to admit. Each party was at liberty to frame his case in his own way while having regard to the rules of pleadings and in the end, was ultimately bound by the manner in which the pleadings were drafted. As such, a party could not be allowed to raise a different or fresh case without an amendment to the pleadings. The court record reflected that the 3^rd petitioners request to extend the time within which to file and serve the amended petition was declined. The court confined its decision to only the matters properly pleaded before it. 

31. By joining the unrelated causes of action of the constitutionality of section 26 (2) of the Salaries and Remuneration Commission Act and the Salaries and Remuneration Commission (Remuneration and Benefits of State and Public officers) Regulations, 2013, the court may not be able to render a fair and efficient resolution of that particular issue given that it derogated from the core issues before it. In order to ensure efficient administration of justice, each cause of action ought to be litigated independently to ensure the proper application of law, presentation of evidence, and resolution of disputes. In the instant matter, the court had not had sufficient opportunity to carry out the exercise in relation to that specific issue. Accordingly, the court declined to entertain that issue.

32. The mandate of the 1^st interested party, Controller of Budget under article 228(4) and (5) of the Constitution was to grant approval of withdrawal of funds in accordance with the law and not to effect payments on specific transactions. It was the responsibility of the relevant accounting officers to pay remuneration and benefits to the respective members of staff. The 1^st interested party ought not to have been joined in to the instant proceedings. No cause of action had been disclosed against the 1^st interested party. Further, the petitioners had not sought any specific orders against the 1^st interested party, nor had they set out in detail any specific violations of the law demonstrated by the 1^st interested party.