The High Court has declared that October 10 is still a public holiday.
Unless Parliament changes the law to scrap it or the minister for Interior substitutes it with another fete, Kenyans will still observe the day meant to honour Kenya's second President Daniel arap Moi.
High Court judge George Odunga ruled that failure to observe the day is an illegality and breach of the Public Holidays Act.
He, however, declined to rule on how Kenyans should celebrate the day.
“I hereby grant a declaration that omission to have the 10th day of October observed as a public holiday is an illegality,” the judge ruled. “I further declare that unless Parliament amends the Act or the minister substitutes for another date, October 10 shall, in each year, continue being a public holiday.”
Kenya has 12 public holidays, five of them based on religion. One holiday, Labour Day, is set aside to celebrate workers in different sectors.
Four holidays are based on the country’s independence and two presidents. Kenyatta Day was however converted to Mashujaa Day.
Boxing Day is also set in the law as a public holiday. Theories have it that people are supposed to open gifts exchanged on Christmas Day.
In the Moi Day case, the court heard that the administrative decision to strike off the public holiday in turn denied workers their right to have a day off and allowances for that day.
Justice Odunga was told that although the Interior minister has the authority to have Moi Day as a public holiday, his hands are tied in that he can only substitute it with another day but not scrap it off.
“Moi Day is mandatory and thus the inaction on the part of the minister amounts to abuse of discretion,” the judge was told.
The minister was opposed to the case.
He argued that he has no powers to decide which public holiday should be celebrated or not.
According to the minister, who was represented by the Attorney General Githu Miugai, the august House gave him powers to declare other days which are not set in the law as public holidays.
He said that he can still substitute a public holiday with another.
Moi Day was removed from the list of national holidays following the promulgation of the 2010 Constitution.
Justice Odunga observed that although Moi Day is not a national day, the celebration of that day as a public holiday does not contravene the Constitution.
He said: “Whereas the day is not a national day it is clear that as far as the provisions of the Public Holidays Act is concerned, the day is still a holiday unless it is shown that its celebration runs counter to the provisions of section 7(1) of the Sixth Schedule to the Constitution. In other words, I am not satisfied that the celebration of Moi Day as a public holiday as opposed to a national day is not in tandem with the provisions of the Constitution of Kenya.”
The judge also found his orders would not apply for the seven years the country by-passed the day.