It has been discovered that the CS acted ultra vires and exceeded her statutory powers as delegated and so usurped the powers of the Public Service Commission when she purported to, vide her impugned internal memo dated April 19, 2023, titled Reorganization of the Ministry, undertake the impugned appointments of the 45 officers to each of the 45 newly created offices
By The Weekly Vision Team
Health Cabinet Secretary Susan Nakhumicha’s creation of various positions and her alleged skewed appointments within the ministry have been reversed by the Employment and Labor Relations Court after Dr Magare Gikenyi and officials of the Kenya Union of Clinical Officers moved to court to challenge some of the appointments.
The move by union officials allows Dr. Patrick Amoth, the acting Director of Medical Services to continue acting in the same capacity. Dr. Amoth was appointed by retired President Uhuru Kenyatta. The court, however, directed the CS, through the order of mandamus, to draw to the Public Service Commission the indent for the advertisement of the position of Director General of Health and other vacant posts.
In their petition, union officials prayed for a declaration that acting appointments are restricted to the existing employees or staff of the organization, which is a temporary conferment upon a public officer by the appointing authority. The bone of contention is the appointment of officers in acting capacity while the public officer continues to hold the substantive appointment, thus the purported appointment of Dr Peter Shikuku and Dr. Tom Omenge to be declared null and void.
The petitioners also prayed for a declaration that it was unconstitutional to revoke the appointment of existing officers like Dr Sore Otieno and replace them with Dr Peter Shikuku without a change of designation. The appointments were made through an internal memo dated April 19, 2023, titled Reorganization of the Ministry. It has been revealed through various affidavits that the Public Service Commission has, through relevant constitutional and statutory provisions, delegated part of its appointment powers to public servants and persons known as authorized officers, such as the CS for health; however, such delegated power is statutorily limited to the appointment of officers to Job Group L and below, but the Commission reserved to itself the appointment power of officers to Job Group M and above.
Further, it has been discovered that the CS acted ultra vires and exceeded her statutory powers as delegated and so usurped the powers of the Public Service Commission when she purported to, vide her impugned internal memo dated April 19, 2023, titled Reorganization of the Ministry, undertake the impugned appointments of the 45 officers to each of the 45 newly created offices.
The 45 offices targeted include those of the Director General of Health and the Deputy Director General of Health. The petitioners also prayed that the appointment of Dr Patrick Amoth as the Acting Director General of Health, who has continuously acted as such for over the past three years, from January 2020 on, was ultra-vire.
It is claimed that the impugned appointments were made unilaterally by the CS, who did not subject the same to the scrutiny, advice, and recommendation of the Ministerial Human Resource Management Advisory Committee.
Further, it was prayed that the impugned internal memo by the CS contained appointments of four Chief Executive Officers in acting capacity for each of the four state corporations, including the National Quality Control Laboratory, which was yet again in excess of her powers, amounting to further usurpation of the powers and mandate bestowed upon the boards of management of such state corporations.
It was alleged that the unilateral appointments by the CS were based on tribalism, nepotism, and favouritism rather than qualification, and that failure to observe seniority in acting appointments and/or deployments would create quagmire situations and chaos in the public service as a substantive junior officer may be elevated to the supervisory role over his superior, thus creating difficulties in disciplinary control as a junior officer cannot commence or participate in disciplinary proceedings against his superior in terms of the statutory general principles of disciplinary process.
Interestingly, the petitioners revealed that the official full name of Dr Peter Shikuku is Dr Peter Shikuku Kibet and that he was only appointed by the CS, who thought they were from the same ethnicity. Further, it has been discovered that Dr. Peter Shikuku Kibet is an employee in the Ministry of Education at the University of Nairobi, and his appointment as acting medical superintendent of the National Spinal Hospital was ultra vires.
Interestingly, it has also been discovered that at the National Spinal Hospital, apart from Dr Soren Otieno, who was relegated to reporting to his junior, Dr Peter Shikuku, there are other senior officers to Dr Peter Shikuku, including Dr. Stephen Kauka. It was also discovered that save for the acting appointment for the position of Director General for Health, the rest of the appointments done by the Cabinet Secretary for Health were never approved by the Public Service Commission. In cases where such appointments have been approved, appointments can only be made either by the Commission or the authorized officers, as may be appropriate.
Further, the court found out that a Cabinet Secretary does not have the legal authority to re-designate staff of state corporations and that requests for the secondment of officers from the service to the state corporation must be made by the boards or CEOs of the concerned state corporation.
In a quick rejoinder, the CS reported that the deployment of Dr Peter Shikuku Kibet was in order, as a public officer may be seconded to any other public office as provided for by service regulations. The deployment of Dr. Tom Menge was done procedurally by service regulations, and he had previously served as a director in the ministry before his deployment to Kenyatta National Hospital. Ag Director General Dr Patrick Amoth has been duly appointed as the Ag Director General by the Public Service Commission.
The judge noted that “to answer the third issue, 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, regulatory, or policy provisions.”.
The ruling by Judge Byram Ongaya on December 7, 2023, reads, “In conclusion, the petitions as consolidated are hereby determined with orders as follows: The declaration that acting appointment is restricted to the existing employees or staff of the organization, which is a temporary conferment upon a public officer by the appointing authority, the power to perform duties of a public officer other than the office the officer is substantively appointed to hold, while the public officer continues to hold the substantive appointment, and thus the purported appointment of Dr Peter Shikuku and Dr Tom Omenge as such is null and void.
The declaration that it was unconstitutional to revoke the appointment of existing officers like Dr Sore Otieno and replace them with Dr Peter Shikuku without a change of designation. The order of certiorari to remove into the court, for purposes of hereby quashing, the purported appointments of the senior management of the Ministry of Health vide an internal memo dated April 19, 2023, titled reorganization of the Ministry.The order of prohibition issued prohibits the 1st respondent from usurping the powers of the 3rd respondent of appointment in the acting capacity of persons to act in those offices or positions.