The Labour court has barred Nairobi City County Assembly deputy clerk in charge of legislative services, Adah Onyango, from occupying the clerk’s office in an acting capacity.
In the temporary order issued by Justice Mathews Nderi, the Employment and Labour Relations Court has directed Ms Onyango to also stop acting as the secretary of the County Assembly Service Board.
The interim orders will remain in force pending the hearing and determination of a case filed by rights activist Okiya Omtatah, who is alleging that she is holding the office illegally.
Mr Omtatah says the six months term of Ms Onyango as the acting clerk and secretary to the board expired on December 6, 2021 by an act of the law.
She was appointed on June 7, 2021 after the Court of Appeal barred the officeholder, Edward Gichana, from office, pending the determination of an appeal lodged by former clerk Jacob Ngwele.
Speaker restrained
The appellate court had also restrained the office of the Speaker or the County Assembly Service Board from advertising, short-listing or appointing a substantive holder of the office pending the determination of the appeal.
“The law limiting acting appointments in the public service to a maximum of six months has been contemptuously violated by the Board. Ms Onyango has acted beyond the six months limit set in law,” says Mr Omtatah in the court papers.
He continues: In the circumstances, she should have vacated office and handed over to her alternate, Pauline Akuku, the Deputy Clerk Administration.
The basis of Mr Omtatah’s petition is Section 34(3) of the Public Service Commission Act (No. 10 2017) which provides that “an officer may be appointed in an acting capacity for a period of at least thirty days but not exceeding a period of six months”.
He also says that the Public Service Commission Human Resource Policies and Procedures Manual for the Public Service provides that “acting allowance will not be payable to an officer for more than six months”.
Mr Omtatah says there is no reason why Ms Akuku has not been appointed to take over.
“The decision to allow Ms Onyango to serve beyond the six months’ limit is both unlawful and unconstitutional and, therefore, invalid, null and void ab initio,” argues Mr Omatath.
Justice Nderi certified the case urgent and directed Mr Omtatah to furnish the Board and Ms Onyango with the court papers within 14 days so that they can file their responses.
The hearing is scheduled to take place on January 18, 2022.
At determination of the case, the activist wants the court to find that Ms Onyango is unqualified to continue holding the office in acting capacity.
He is also seeking for a declaration that “it is illegal and unconstitutional and, therefore, invalid, null and void ab initio (from the beginning), for acting appointments in the public service to last beyond the six months limit set in law”. BY DAILY NATION