More than 200 promotions made within the Attorney General’s office last year will remain frozen until a case pending before the Employment and Labour Relations court is determined.
A bench of Court of Appeal judges ruled that the public interest would be best served by freezing the promotions until the labour court determines whether they pass the constitutional and statutory test.
Justices Daniel Musinga, Francis Tuiyott and George Odunga further said that any loss suffered by the 212 state counsels can be compensated if the case challenging their promotions was dismissed.
“We dismiss the notice of motion dated December 11, 2024, with no order as to costs,” the court said.
The Attorney General’s office rushed to court last year after Justice Byram Ongaya suspended the promotions pending the determination of a petition filed by Dr Benjamin Magare-Gikenyi, Dishon Mogire, and Philemon Abuga.
The petitioners alleged that the posts had not been filled competitively and that there was a lack of ethnic and gender balance.
Dr Gikenyi pointed out that of the 15 senior positions filled on November 26 last year, nine were from the same ethnic community and 12 were female.
The Public Service Commission (PSC) supported the case, arguing that the promotions were made in gross violation and contravention of the Constitution, the Public Service Act, the Office of the Attorney General Act and the PSC human resource policies and procedures manual.
“The commission supports the petition fully and humbly urges this honourable court to grant all the reliefs therein as particularised,” the PSC said.
John Kimani, a director at the PSC said all public officers must be given an equal opportunity to compete for the available vacant promotion posts within their respective authorised establishments.
The positions that were frozen were two senior deputy solicitor generals, 13 deputy solicitor generals, four chief state counsels, 63 deputy chief state counsels and 145 principal state counsels.
While defending the promotions, Oscar Eredi for the Attorney General said the promotions were procedural and an earlier advertisement for the positions, “was caught up in the transition and de-linking the AGs office and PSC”.
Mr Eredi said that following the de-linking of the Attorney General’s office from the PSC, the office began the process of promoting officials who had been in the same positions for a long time.
“That following the de-linking, the Attorney General embarked on the process of the operationalisation of the Act in line with the amendments that had been made thereto,” Solicitor General Shardack Mose said in an affidavit.
Mr Mose added that one of the processes was a review of staffing levels to enable the office to carry out its constitutional mandate and provide optimal and efficient services to Kenyans.
He said the promotions took into account all requirements, including age, those serving in an acting capacity and regional balance.
Mr Eredi further pointed out that about 70 percent of the workforce at the Attorney General’s office are women.
At the appellate court, Mr Mose said the 212 state counsels were condemned unheard.
The court further heard that the order was issued based on reliance on illegally obtained and confidential documents contrary to the law and the Constitution.
The court said that although Mr Mose claimed that the promotions had been communicated to the beneficiaries, there was no evidence that they had been implemented by the time the order was issued.
