The Employment and Labour Relations Court in Nairobi has officially cancelled the promotions of over 200 officers in the Office of the Attorney General, ruling that the appointments were unconstitutional and violated public service regulations.
Justice Byram Ongaya, who delivered the verdict on Thursday, May 29, declared that the promotions carried out last year were not done fairly, competitively, or based on merit.
As a result, the court invalidated the appointments, which included top positions such as Senior Deputy Solicitor General and Deputy Solicitor General. The ruling also affects 225 other officers who had been elevated through the same irregular procedure.
The specific positions affected include two Senior Deputy Solicitor Generals, 13 Deputy Solicitor Generals, four Chief State Counsels, 63 Deputy Chief State Counsels, and 145 Principal State Counsels. These promotions had been announced through an internal memo dated November 26, 2024.
The court found that the appointments went against the Constitution and violated regulations set by the Public Service Commission (PSC). According to the ruling, out of the 15 top positions that were filled, nine were awarded to individuals from the same ethnic group, and 12 of those promoted were women.
Justice Ongaya stated that such appointments must uphold principles of fairness, merit, gender equality, ethnic representation, and regional inclusivity.
“The Court has found that the disputed amendments were unconstitutional, and the controversial promotions were unlawful and in breach of the Constitution, as highlighted by the petitioners,” the ruling noted.
In addition, the court declared the Statute Law (Miscellaneous Amendments) Act 2024 unconstitutional. This law had shifted some of the responsibilities of the Public Service Commission to the Office of the Attorney General.
Justice Ongaya ruled that such a move was illegal because it was passed through miscellaneous amendments and undermined the authority of the PSC, which is an independent constitutional body.
“The court has concluded that the amendments to the Office of the Attorney General Act were unconstitutional, as they were made through miscellaneous amendments and attempted to strip the PSC of its constitutional functions. This contravened Article 234(5) of the Constitution,” the ruling continued.
The petition challenging the promotions had been filed by Dr. Magare Gikenyi, Dishon Keroti Mogire, and Philemon Abuga Nyakundi.
They argued that the appointments lacked transparency and fairness, and failed to reflect Kenya’s ethnic and gender diversity as required by law.
Attorney General Dorcus Oduor, in defending the promotions, said that all procedures had followed legal guidelines.
She also claimed that the Attorney General’s office had been separated from the regular public service system and that positions such as Deputy Solicitor General and State Counsel were no longer under the control of the PSC.
However, the court noted that her office failed to provide clear and convincing evidence to support these claims.
Justice Ongaya concluded that the Attorney General’s office remains subject to constitutional standards and public service laws, and that no office can override the authority of the PSC through unlawful legal amendments.
This ruling serves as a landmark judgment reinforcing the need for fairness, transparency, and inclusivity in government appointments.
It also reasserts the constitutional role of the Public Service Commission in managing and overseeing public sector employment.
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