The Court of Appeal (COA) has delivered a blow to the office of the Attorney General headed by Dorcus Oduor after it refused to lift the temporary orders issued by the Employment and Labour Relations Court (ELRC) compelling 212 state Counsels to wait longer for promotions.
The ELRC issued an order on December 11, 2024, effectively halting most promotions within the AG's office that had been outlined in an internal memo dated November 26, 2024.
The AG wanted the respondents to prove that they could pay the 212 if they lost the case before the ELRC, however, the COA declined that prayer, arguing that it is in the purview of the government to pay them if the case fails.
In an appeal, the AG tried to overturn this ruling, but in a judgement on Friday, COA judges George Odunga and Francis Tuiyott blocked the attempts to grant the stay of execution, meaning the initial suspension remains in effect, preventing the majority of promotions from being implemented.
"If aggrieved by that decision, then the affected state counsels can move the trial court for setting aside orders. Simply, they are not without remedy and they do not need a stay order to assist them seek redress," Judge Odunga ruled.
While the court suspended the majority of the promotions, it allowed two specific roles — Senior State Counsel and Information Communication Technology Officer — to proceed.
Following the ruling, the future of these promotions will remain on hold until the ELRC makes a determination after a full hearing of the constitutional and legal questions raised.
Judge Odunga and Tuiyott have returned the case to the ELRC and ordered that it be heard on a first-priority basis to resolve the matter that is affecting most state counsels.
While this aims to resolve the matter quickly, it still means the AG has to face the legal challenge to the promotions in the ELRC.
''It seems to us that public interest is better served by putting a hold on those promotions until they are pronounced to pass constitutional and legal muster by a court of law, because any loss suffered by the interested parties and affected state counsels can be compensated by payment of salary in arrears,'' the ruling continued.
The petition against the promotions was filed by Dr Benjamin Magare-Gikenyi, who claimed that they were not competitive and disproportionately favored one ethnic group and one gender.
The petitioner argued that qualified state counsels were not given a fair chance to compete for the positions.
