The Employment and Labour Relations Court has dismissed a case challenging the appointment of Joseph Kinyua as the Head of Public Service.
The court also declined to quash the circular that scrapped age and term limits for Chief Executive Officers of state corporations.
“The court is not persuaded that the designation of the Office that Joseph Kinyua holds as Head of Public Service usurps the power of the Chairperson of Public Service Commission,” the court ruled.
Oi the matter of terms of service for Chief Executive Officers of state corporations, the court ruled that it cannot hamstring the government as an employer from reviewing or qualifying its policy to resolve an emerging issue.
Justice Nelson Obuodha noted that the government, just like any employer, ought to be let free to exercise its managerial discretion in order to realise its set objectives.
“In this regard, the court would frown upon and would not hesitate to declare unconstitutional the use of the circular OP/CAB.9/1A on terms of service for state corporations Chief Executive Officers to extend indefinitely terms and conditions of Service for this cadre of public servants,” ruled Obuodha.
In the case, activist Okiya Omtatah had moved to the court seeking to have it declare both the impugned circular and the designation of Joseph Kinyua as Head of the Public Service to be inconsistent with the Constitution and other laws of Kenya and therefore, invalid, null and void.
Omtatah had argued that Kenya has many young energetic, educated and vibrant citizens who are unemployed or underemployed.
“The so called office of the Head of Public Service does not and cannot exist in law under the Constitution of Kenya 2010. The office of the Head of Public Service (or Head of the Civil Service) existed under the repealed constitution of Kenya but was abolished under the Constitution of Kenya 2010,” argued Omtatah.
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