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{
    "id": 1397763,
    "url": "https://info.mzalendo.com/api/v0.1/hansard/entries/1397763/?format=api",
    "text_counter": 126,
    "type": "speech",
    "speaker_name": "Hon. Speaker",
    "speaker_title": "",
    "speaker": null,
    "content": "office are payable directly from the Consolidated Fund or directly out of money provided by Parliament.” The same Article also defines the term “state office” to include the various offices therein enumerated at Paragraphs (a) to (q). Most relevant to this matter is Paragraph (q), which provides that a state office could also be an office established and designated as such by national legislation. It is, in fact, instructive to note that Article 260 of the Constitution is not couched in an exhaustive manner. Paragraph (q) of the said Article donates power to Parliament to further legislate on the subject by providing that ‘a state office also includes an office established and designated as such by national legislation.’ Hon. Members, the courts have also interpreted the question of whether state offices may be created by national legislation. In the case of Matindi & 3 others versus the National Assembly of Kenya & others [2023] KEHC 19534 (KLR), the High Court was satisfied that a state office can be created by national legislation. The court held as follows— ‘Whereas His Excellency the President can establish a state office within the ranks of the public service, it requires approval by the National Assembly. Such approval may be achieved by enactment of a statute, which provides for the same and further provide an appropriate framework for a cap on the number of CASs, if necessary.’ The High Court was satisfied that a state office may be created by statute. This settles the first issue on establishment of a public or state office by national legislation. The second issue for determination is whether the offices of the Chief Administrative Secretary and the Head of Public Service as proposed in the Bill are public or state offices. You will recall that the Office of the Chief Administrative Secretary has been subject of myriad litigation before the High Court. In the case of Okoiti & another versus Public Service Commission and others [2021] the Kenya High Court (KEHC) 464 Kenya Law Reforms (KLR), the court held that there were no processes laid down in legislation for establishing the office of Chief Administrative Secretary hence the finding of unconstitutionality. The findings in this case were reaffirmed in the latter case of Matindi and three others versus the National Assembly of Kenya & others [2023] KEHC 19534 (KLR), in which the Court affirmed that the offices of Chief Administrative Secretaries were State offices which could only be lawfully established and designated as state offices by national legislation. In summary, the Court in both instances emphasised on the need for legislation in order to constitutionalise the establishment of those offices. Differently put, the Court in both instances would probably have arrived at a different finding had the establishment of those offices been done by national legislation. In this context, it appears, therefore, that the Bill being contested by the Leader of the Minority Party in actual fact intends to fill the lacunae in law as identified by the courts in the aforesaid cases."
}