In a petition (PETITION NO. E207 OF 2022) filed by Dr Magare Gikenyi J. Benjamin, Justice Byram Ongaya on Tuesday 25th July 2023 made the ruling trashing the appointment of Bernice Silaal Lemedeket. The ruling is a big blow to President William Ruto’s administration, which has been losing landmark cases against the public in the recent past
By The Weekly Vision
The Employment and Labour Relations Court has trashed the appointment of Bernice Silaal Lemedeket as Principal Administrative Secretary (PAS) declaring the appointment unconstitutional, null and void. President William Ruto appointed Silaal Lemedeket to the position also doubling up as the Accounting Officer of the National Police Service (NPS).
The appointment came months after the President signed an Executive Order granting the Service autonomy by transferring its budget from the Office of the President. Before the appointment, Lemedeket served as a Manager of the Kenya Pipeline Company Foundation. In a petition (PETITION NO. E207 OF 2022) filed by Dr Magare Gikenyi J. Benjamin, Justice Byram Ongaya on Tuesday 25th July 2023 made the ruling trashing the appointment of Bernice Silaal Lemedeket. The ruling is a big blow to President William Ruto’s administration, which has been losing landmark cases against the public in the recent past.
Dr Magare had prayed for a declaration that the purported press release and/or gazette notice or/and any document of the purported appointment of Lemedeket into the position of Principal Administrative Secretary, be declared invalid, null and void. He also sought orders prohibiting Lemedeket from acting in any way or manner as principal administrative and a declaration that the skewed appointments/action of Lemedeket is contrary to articles 1,2,3,10,27,54,55,56,73,75,201 and 232 of the Constitution, 2010.
He claimed that President Ruto did not initiate public participation in the function and creation of the office of principal administrative secretary (hereinafter PAS) and that the position of PAS does not exist both in the Constitution of Kenya and the law and is contrary to Article 155(2) of the Constitution.
He further claimed that the creation of the office of PAS is a waste of public resources, Lemedeket would be the accounting officer, work which is supposed to be performed by the Principal Secretary in the relevant state department. He went on to claim that the role of Lemedeket will be similar to the principal secretary hence duplication of roles, bloating the already blotted civil service and depleting the country’s scarce financial resources.
However, the government in a quick rejoinder through an affidavit dated 25.01.2023 and 14.06.2023 of Felix K. Koskei the Chief of Staff and Head of the Public Service, and Peter Kiptanui Leley, the Chief Executive Officer of the National Police Service Commission, respectively claimed that the office was lawfully established and competitively filled by the National Police Service Commission.
The letter of appointment issued to Lemedeket stated that she was on a contract term of service for 5 years renewable subject to satisfactory performance upon performance evaluation. It was an appointment for a gross salary of Ksh. 621, 250.00 and other benefits including provision of official transport car of engine capacity not exceeding 3000cc, medical cover, retirement gratuity of 31% of annual pensionable emoluments for the term served, group life insurance 3 times of annual pensionable emoluments; group personal accident 3 times of annual pensionable emoluments, car loan of up to Kshs. 6,000,000 and mortgage benefit loan of up to Kshs. 30,000,000, Daily Subsistence Allowance for local and foreign travels as reviewed and advised by the SRC from time to time, airtime of Ksh. 20, 000.00 per month, security provided as advised by the Inspector General of Police and shall not be commuted to cash, Annual Leave Allowance Ksh. 50,000.00 and, work injury benefit per the Work Injury Benefits Act.
Thus to answer the question of whether the National Police Service Commission had the power and function to establish the impugned office, the court ruled “The Court has considered the additional powers and functions of the National Police Service Commission and they do not include establishment and abolition of offices in the National Police Service”.
The ruling further reads, “It, therefore, appears to the Court and it is the holding that the National Police Service Commission was not vested with the constitutional or statutory authority to create the impugned office of the Principal Administrative Secretary or Accounting Officer, National Police Service (PAS-NPS)”. In dismissing the appointment, the judge noted that the National Police Service Commission did not have the relevant authority to make an appointment of an Accounting Officer as it purported to do.
The ruling goes on to note that the Court has considered the petitioner’s case on the wastage of public resources in the manner the impugned office was established and an appointment made thereto by the National Police Service Commission. The ruling further reads “The Court therefore returns that the manner of establishment of the office and making of the appointment thereto was not in the best interest of the national economy and prudent use of the scarce resources per the constitutional values and principles”.
The court made a declaration that the unprocedural establishment and/or assignments of the office/position of the principal administrative secretary as accounting officer have no legal, statutory or constitutional underpinning and hence unconstitutional null and void.
