The Public Service Commission (PSC) has faulted Health Cabinet Secretary Susan Nakhumicha over new appointments.
In response to a case filed by a Nakuru doctor, Benjamin Gikenyi, the state employment agency termed as illegal the action by the CS in her internal memo dated April 19.
The commission maintained that all the offices and positions outlined under the State Department for Public Health and Professional Standards do not exist as they have not been established and approved.
In his case at the Employment and Labour Relations Court in Nairobi, Dr Gikenyi is challenging the decision to establish new positions.
The doctor argues that Nakhumicha usurped the constitutional and statutory powers and functions of the agency by appointing the senior officers.
The Attorney General and the commission have also been named as respondents, while 59 others are interested parties.
Gikenyi claims Nakhumicha infringed the power and mandate of PSC in appointing the 59 health officers to newly created offices at the level of Director General of Health, Deputy Director General of Health, Directors, and Divisional Heads in Acting capacity.
The appointment of Dr Patrick Amoth as the Acting Director of General Health continuously for three years, he says, is a contravention of the PSC Act.
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PSC Deputy Commission Secretary (Corporate Services) Remmy Mulati, in the response, says most of the office positions outlined under the State Department for Medical Services do not exist as they have not been established and approved by the commission.
“It is the commission's position that the actions by the Cabinet Secretary for Health through the impugned internal memo of 19th April 2023 are unconstitutional, illegal as they constitute a usurpation of the constitutional and statutory powers of the commission,” states PSC.
“The appointments made by the Cabinet Secretary are contrary to the law as well as the approved staff establishment and organization structure for the Ministry.”
Mulati says the CS violated the Constitution, the PSC Act, 2017, the PSC regulations, 2020, as well as the commission's delegation instrument on December 14, 2022, issued to the authorised officers.
“Offices and positions for which persons may be appointed to hold or act in must first be established by the commission before such appointments are made in accordance with the law,” he argues.
He further says that the ministry has not submitted its report for a review of organisation structure and staff establishment to the commission for consideration and approval.
The CS and the AG, in a joint response, deny claims of new appointments.
Stephen Khaemba, the deputy director of the human resource at the ministry, says the CS was merely communicating on the temporary deployment of officers arising out of the government through Executive Order No 1 of 2022 and revised by Executive Order No 1 of 2023.
The order, he says, created two state departments dealing with medical services and public health and professional standards.
“There is no officer who has been appointed to any position in the ministry either substantively or in an acting capacity as alleged by the petitioner (Gikenyi). This is because the ministry did not have an approved organisational structure to inform on appointments,” reads the reply.
Khaemba says the CS made a temporary deployment of officers pending the approval of the organisational structure by the PSC.
The CS wants the case by the doctor dismissed for lack of merit.
The case is set for an interparty hearing on July 27 before Justice Byram Ongaya.