The Employment and Labour Relations Court in Nairobi has nullified the controversial promotions within the Office of the Attorney General from last year, declaring them unconstitutional and a violation of public service laws.
In a judgment issued on Thursday, May 29, Justice Byram Ongaya quashed the promotions for not being competitively and meritoriously made.
The judgment, which dismantles appointments to senior positions including Senior Deputy Solicitor General and Deputy Solicitor General, also affects 225 other officers who were elevated under the same irregular process.
The positions are: two Senior Deputy Solicitor Generals, 13 Deputy Solicitor Generals, four Chief State Counsels, 63 Deputy Chief State Counsels, and 145 Principal State Counsels.
The court found that the promotions, communicated via a memo dated November 26, 2024, violated provisions of the Constitution and Public Service Commission (PSC) regulations.
Out of the 15 senior positions filled on November 26, nine were filled by individuals from the same ethnic community, while 12 of the appointees were female.
Justice Ongaya ruled that appointments within the AG’s Office must adhere to principles of fair competition, merit, gender balance, ethnic representation, and regional diversity.
“The Court has found that the impugned amendments were unconstitutional and the impugned promotions contrary to the law and constitution as urged for the petitioners,” the ruling read in part.
Justice Ongaya also annulled the Statute Law (Miscellaneous Amendments) Act 2024, which transferred some of the Public Service Commission's (PSC) powers to the Attorney-General, deeming it unconstitutional and therefore null and void.
“The court has found that the amendments to the Office of the Attorney General Act to be unconstitutional as the said substantial amendments were made through miscellaneous amendments and that the said amendments were purporting to take away the functions of the Public Service Commission (PSC), an independent commission contrary to the law and the constitution (Article 234(5),” the ruling continued.
Dr Magare Gikenyi, Dishon Keroti Mogire, and Philemon Abuga Nyakundi filed a petition contesting the promotions, claiming that the appointments were not based on a fair and competitive selection process and failed to ensure ethnic and gender diversity.
Defending the promotions, AG Dorcus Oduor argued that they had followed the law and that the changes had been made after the office had been delinked from the mainstream public service, and that the Deputy Solicitor General and State Counsel had been removed from the jurisdiction of the PSC.
The judge, however, found that her office did not produce tangible evidence proving this argument.
