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HIS CLIENTS WEREN’T COMPLAINING. BUT THE JUDGE THIS LAWYER WORKED TOO HARD.

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BY THE NEW YORK TIMES

Can a lawyer work too hard to defend a client? That all depends on who is paying the bill, a new lawsuit argues.

A criminal defense lawyer in Galveston, Tex., says he was pulled off cases defending poor clients because he spent too much time on them and requested funds to have their charges investigated.

Needless to say, his clients were not the ones complaining. Instead, it was the judge, Jack Ewing, who appoints lawyers for those in his courtroom who cannot afford them.

“You overwork cases,” Judge Ewing told the lawyer, Drew Willey, according to excerpts from a recorded conversation cited in the lawsuit.

Though an estimated four of every five criminal defendants in the United States use court-appointed lawyers or public defenders, many of the nation’s indigent defense systems have been criticized as desperately inadequate, leading to false guilty pleas and overincarceration.

Lawyers who represent the poor can be required to juggle hundreds of cases at a time, accept pay far lower than the market rate, or take cases for which they have little experience.

This new case, though, exposes another potential problem: Indigent defense lawyers often get their assignments from the judges in whose courtroom they appear. This discourages a robust defense, experts say, and leads to an emphasis on resolving cases quickly.

The tensions may be familiar to lawyers, but they are rarely so candidly aired as in this lawsuit, filed in federal court last week and bolstered by parts of a recorded conversation with the judge.

Mr. Willey’s lawyer, Charlie Gerstein of Civil Rights Corps, a nonprofit organization in Washington, D.C., said the lawsuit would be the first in a series of cases and was filed partly to illustrate a “phenomenon that pervades the entire legal system.”

The lawsuit contends that Judge Ewing took away some of Mr. Willey’s poor clients and refused to appoint him new ones because “he sought to provide a vigorous legal and factual defense for his clients.”

Mr. Willey said he has been appointed to only one case before Judge Ewing since May 2016, and that appointment was effectively made by another judge. The lawsuit asks for him to be reinstated and for Judge Ewing to be barred from retaliating against him.

In an interview, Judge Ewing denied the allegations, saying he assigned some cases to another lawyer because many of Mr. Willey’s cases were unresolved and Mr. Willey seemed overwhelmed. He also said that, as far as he knows, Mr. Willey’s eligibility to represent indigent defendants has never changed.

But according to the lawsuit, Judge Ewing told Mr. Willey that he spent too much time defending individual clients.

“You are the only attorney” to routinely ask for a paid investigator, the judge said. He also complained that cases resulting in guilty pleas generally should not take more than three hours of work, but Mr. Willey sometimes took longer.

Relatively few criminal cases ever go to trial; most end instead in guilty pleas. But that does not mean that time and money is spent on them in vain. The length of the sentence offered in a plea bargain can hinge on the strength of the prosecution’s case, and a thorough evaluation of the evidence can put defense lawyers in a stronger negotiating position.

Mr. Willey’s lawsuit offered the example of a client charged with breaking into a car. The client faced up to a year in jail, but Mr. Willey found “blatant inconsistencies” in police statements. When prosecutors declined to reduce the charge, he hired an investigator, the lawsuit says.

Ultimately the client was allowed to plead guilty to criminal mischief, the lowest class of misdemeanor, which carried no possible jail time and was eligible for expungement from his record, Mr. Willey said.

Yet Judge Ewing cut Mr. Willey’s request for $1,320 in pay on the case to $511, citing “excessive out-of-court hours,” according to the lawsuit. After Mr. Willey appealed, another judge approved the full amount.

A 2011 RAND Corporation study of more than 3,000 Philadelphia murder cases found that clients fared better when they were represented by a lawyer from an independent public defender organization than if they had one appointed by a judge: Their conviction rate was 19 percent lower; the chances that they would serve a life sentence were reduced by 62 percent; and their expected sentence length was 24 percent shorter.

“Judges have incentives to appoint counsel who file fewer pretrial motions, ask fewer questions during voir dire, raise fewer objections, and present fewer witnesses,” the study said.

And, experts say, that gives lawyers reason to push for a fast resolution, skipping thorough investigations or motions that might slow the docket or displease the judge. Some defense lawyers also fear that if they object too strenuously, their clients will be penalized.

“Public defense providers internalize, and try to figure out what it takes to get the next contract,” said David Carroll, executive director of the Sixth Amendment Center, a nonpartisan group that provides technical assistance on criminal justice matters to state and local policymakers. “A judge doesn’t actually have to say, ‘Don’t file any motions in my courtroom.’”

In a survey commissioned by the Texas bar in 2000, nearly half of the criminal court judges in Texas said that a lawyer’s “reputation for moving cases, regardless of the quality of defense” was sometimes or usually a factor in appointment decisions made by their peers.
Mr. Willey, four years out of law school, represents clients in misdemeanor and felony cases. Judge Ewing said Mr. Willey’s “inexperience leads him to tend to charge more hours than what normally would be approved.”

He recalled his conversations with Mr. Willey differently from how they are described in the lawsuit.

“I think I said, ‘I can’t be paying you five times or six times an attorney with 20 years’ more experience,’” Judge Ewing said. He added that he had reduced pay requests he deemed excessive from other lawyers as well.

Galveston County, Judge Ewing added, has safeguards to ensure defendants have lawyers with experience commensurate with the severity of charges they face.

“We are giving people the best representation they can get if they are indigent,” he said. “If that is truly Mr. Willey’s goal, then I’d say we have something in common.”

CBK ,KDIC BOSSES SUED FOR MISMANAGING IBL RECEIVERSHIP.

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Central Bank of Kenya (CBK) Governor Patrick Njoroge who has been sued by Imperial Bank Shareholders.

BY SAM ALFAN.

Shareholders of collapsed Imperial Bank Limited wants Central Bank of Kenya (CBK) managers and Kenya Deposit Insurance Corporation (KDIC) boss held liable over imperial bank collapse.

Central Bank of Kenya (CBK) Governor Patrick Njoroge his deputy Sheila Mbijiwe and KDIC boss Mohammud Mohammed have been sued in their personal capacity over alleged mismanaging Imperial Bank Limited (IBL) receivership.

Through Wandabwa Advocates, IBL shareholder together with their respective companies Imaran Limited, Reynolds & Company limited, East African Motor Industries (Sales & Services) limited Momentum Holdings Limited, Abdulmal Investment Limited and Kenblest Limited filed a fresh application at the Labor and Relations Court claiming that the two officials mismanaged IBL receivership.

On 13 of October 2015, the governor appointed Kenya Deposit Insurance Corporation (KDIC) as a receiver of the Imperial Bank Limited for a period of twelve months and Peter Gatere was appointed as the Bank’s receiver-manager. The appointment also included a declaration of a moratorium on the bank.

“We are seeking orders from the court declaring the two liable and should be compelled to lead recovery efforts,” said Lawyer Wandabwa.

The new suit does not in any way affect the ongoing transaction, rather seeks to ensure that the end game is not liquidation.

The Shareholders have fought the bank’s liquidation since it went into receivership in October 2015.

In the application, they said CBK applied for a 12-month extension to receivership period to work on a recovery deal and the period comes to an end in 14 weeks.

According to the court documents, Kenya Deposit Insurance Corporation (KDIC) confirms that they have continued to collect loans and have so far cumulatively collected over Ksh.10billion.

Patel and the others in the court documents said they are aggrieved by the conduct of the Central Bank during the period of the Bank’s receivership and omitting their statutory powers.

They claim that Njoroge, Sheila and Mohammud ought to have known that Peter Gatere, the receiver was not only an employee of CBK, a staff member of CBK’s supervision unit and a close confidant of the named culprits in the FTI Report and shown as having exchanged emails with the senior management of the Bank.

They added that they could have known that he was involved in the fraudulent activity of W.E. Tilley as far back as 2012, but culpable and otherwise complicit in the irregular disbursements from the Bank.

In the court documents,  the two are said to have aided and abetted the appointment of Peter Gatere as receiver-manager or otherwise failed to prevent his appointment in the circumstances with such appointment having been made with a view to covering up the truth behind the fraud at the Bank.

“In allowing DTB access to the Bank and/or the Bank’s records and data, Njoroge, Mbijiwe and Mohamud Mohammed have aided to cover up DTB’s role if any in handling the funds carried out on the Bank” the shareholders argued.

They contested that the governor, his deputy and the Chief Executive Officer of KDIC have not only failed to investigate, and or trace the money trail of the funds defrauded from the Bank through  Fidelity and DTB, but have actively protected and or propped them up with a view to burying the truth.

They further argued that the CBK and its officials have also failed to trace or otherwise take steps to trace, the funds known to have been disbursed from the Bank to various companies whose accounts were held at Fidelity and DTB.

The shareholders in the complaint said that Mr Njoroge has also allowed another financial institution, NIC Bank Limited (“NIC”) to benefit from the receivership process and the unrestricted access to data with the result that NIC has been able to open branches in the same vicinity as several of the Bank’s branches which could only have happened if NIC had access to the Bank’s customer base and data.

“Failure to protect the Bank’s value will result in further losses to depositors,” they said.

They said that In failing to trace the sums irregularly and illegally disbursed from the Bank, the three have refused to confirm that they were indeed not the beneficiaries of the amounts irregularly disbursed from the Bank, yet they still persist, acting at the behest of the Fourth and Fifth Defendants in maintaining unsubstantiated allegations against the Plaintiffs as relates to their alleged fraud as evidenced in various documents filed in Court.

They said that malicious conduct of Njoroge and his deputy is further compounded by the fact that there have been unjustified overheads maintained at the Bank since the commencement of its receivership, which has a net effect of eroding the Bank’s commercial.

They are further seeking to declare the governor, his deputy and KDIC boss have acted in misfeasance of public office.

They also want a declaration that the shareholders were unlawfully discriminated against in relations to the EOI process and they acted in excess of their powers as relates to the receivership of the bank.

The matter to be mentioned for further directions.

CS MATIANGI,IG BOINNET AND KIHAHALANGWA TO BE JAILED FOR DISOBEYING COURT ORDERS.

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President Uhuru Kenyatta (center) Interior Cabinet Secretary Dr Fred Matiangi (left) and Inspector General of Police Joseph Boinnet during General Service Unit (GSU) pass out on Wednesday March 28,2018.

“State officers cannot continue to act in contempt and going about their business without respecting courts orders,” said the judge.

BY SAM ALFAN.

High Court has convicted Interior Cabinet Secretary Dr Fred Matiang’i, Inspector General Joseph Boinnet and Principal Secretary by then ( Immigration Director) Gordon Kihalangwa for contempt of court.

“Interior CS Fred Matiangi, Immigration PS (then director of Immigration) Gordon Khalangwa, Inspector General of Police Joseph Boinnet have by their conduct been contemptuous of the orders of this court and are convicted accordingly”. ruled Justice Odunga.

Justice George Odunga also summoned them to appear in court 10 am tomorrow for sentencing.

“The said respondent to personally appear before this Court tomorrow at 10.00 am for sentencing and further orders. In default of their appearance, the court will proceed to mete out appropriate sentences their absence notwithstanding” Judge Odunga further ordered.

Should they fail to appear in court in person, Justice Odunga said, the court will proceed to sentence them for contempt.

The judge further ordered the self-proclaimed general should not be moved outside jurisdiction of the court.

“It is hereby directed that the petitioner is not under any circumstances to be removed from the jurisdiction of this court. Instead, the petitioner is to be unconditionally released forthwith to appear this court tomorrow at 10.00 a.m”. Said Odunga.

The Judge further directed the order is applicable not to only the top government officials but to the officer’s working under them.

” This order binds not to only the respondents but also the officers under then in whose custody the petitioner has been placed”. Ordered Odunga.

He further directed Miguna Miguna lawyers are to be granted access to the petitioner.

The court also ruled unless MigunaMiguna is released, the said government officials will not be granted the right of audience by the court tomorrow.

Justice Odunga pointed out that this was not the first time the Interior CS was being penalised by the court for disobeying its orders. He said those who violated the constitution should take responsibility for their own actions.

“The case now is not about lawyer Miguna Miguna but about the dignity of the court which is being put to question as key executives have persistently acted with impunity,” he added on Tuesday.

“Court orders are not subject to the interpretation of the Executive. The laws are not silent. They may be changed but they speak the same language.” Court observed.

“Courts are not guided by ministers or political popularity; courts are guided by law and law alone. Court orders must be obeyed,” he ruled.

Miguna moved to court yesterday seeking his immediate release and be granted unrestricted right to enter the country and remain inthe country onthe basis of his Kenyan passport and his Kenyan National Identity card .

He also wants the court to prohibit the state from deporting.

In a petition filed by his lawyers John Khaminwa and Nelson Havin,Miguna Miguna says that the government have despite the court orders refused to allow him re-entry into the country and have attempted to unlawfully and forcefully remove him from the jurisdiction.

“The petitioner is currently being detained incommunicado in a toilet

At Terminal 2 at Jomo Kenyatta International Airport on Nairobi,”claims Nelson Havi.

In the affidavit Havi says that Miguna Miguna is entitled to re-enter the country unconditionally ,unhindered and unrestricted.

He furthur states that claims that Miguna is apprehensive following the government conduct that he will be tortured ,abused and illegally removed from the jurisdiction in order to frustrate the orders of the court.

“The respondents have unlawfully seized the petitioners Canadian passport in a clear attempt to have him declared stateless and continue to violate his fundamental rights and freedoms,”claims Havi.

TOP HARAMBEE SACCO MANAGER CHARGED.

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Harambee Saving Society credit manager Christopher Seje Bolo before a Nairobi Court on Wednesday March 28,2018/PHOTO BY S.A.N.

BY NT REPORTER.

A top manager  of the giant Harambee sacco has been charged with stealing over  13.6 million shillings  from the Cooperative.

The Sacco credit manager Christopher Seje Bolo who was working at  the Credit control  Department of the sacco,  which is the second   largest credit and savings Co-operative society in the Country ,is  accused that on December 1 ,2017 and 7 February  2018 ,at the sacco’s office ,bieng an employee of the organisation  stole Kshs  13,645,220 shillings property of the sacco which came to his possession by virtue of his employment.

Bolo denied the charge before  Principal Magistrate Martha Mutuku and was released on a cash bail of Sh 300 000shillings or bond of 1million with a surety of the same amount  .

A prosecutor Pamellah  Avedi said that the case  will be  consolidated with another where the  former  head of Finance  Jacob  Barasa was charged with stealing  the same  amount.

Avedi said the Sacco which has a membership of 100,000 drawn from the civil service is the complainant through its acting chief executive officer Mr Renson  Mwandoe.

Hearing to proceed for further directions.

PRODUCE MIGUNAMIGUNA TOMORROW BEFORE ME, COURT ORDER’S.

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Lawyer MigunaMiguna.

BY NT CORRESPONDENT.

High court has ordered lawyer MigunaMiguna to be produced in court tomorrow at 9 a.m.

Judge Roselyn Aburili further ordered that the self proclaimed general to be released unconditionally.

“The petitioner Mr Miguna Miguna who is currently being held incommunicado at JKIA be forthwith released to appear before this court tomorrow 28, March ,2018 for inter parties mention of this petition and application at 9:00 a.m before duty judge”. Ordered Justice Abrurili.

This is after Miguna Miguna moved to court this afternoon and sued government seeking his immediate release and be granted unrestricted right to enter the country and remain inthe country onthe basis of his Kenyan passport and his Kenyan National Identity card .

He also wants the court to prohibit the state from deporting.

In a petition filed by his lawyers John Khaminwa and Nelson Havin,Miguna Miguna says that the government have despite the court orders refused to allow him re-entry into the country and have attempted to unlawfully and forcefully remove him from the jurisdiction.

“The petitioner is currently being detained incommunicado in a toilet

At Terminal 2 at Jomo Kenyatta International Airport on Nairobi,”claims Nelson Havi.

In the affidavit Havi says that Miguna Miguna is entitled to re-enter the country unconditionally ,unhindered and unrestricted.

He furthur states that claims that Miguna is apprehensive following the government conduct that he will be tortured ,abused and illegally removed from the jurisdiction in order to frustrate the orders of the court.

“The respondents have unlawfully seized the petitioners Canadian passport in a clear attempt to have him declared stateless and continue to violate his fundamental rights and freedoms,”claims Havi.
Hearing of the application proceeds tomorrow.

PARLIAMENT FACE OFF WITH JUDICIARY OVER JUDGE WARSAME VETTING.

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Elected Court of Appeal representative to Judicial Service Commission Justice Mohammed Warsame.

BY SAM ALFAN.

A supremacy battle looms between Parliament and the Judiciary over Justice Mohammed Warsame vetting.

This is after the High Court temporarily barred the National Assembly from vetting or summoning Justice Warsame.

Law Society of Kenya says that it is not Parliament work to vet Judges but its a preserve of the Judicial Service Commission.

High court Judge Roselyne Aburili further suspended the notice issued by parliament inviting members of the public to submit representations concerning the vetting of Justice Warsame.

“Judge Mohammed Warsame became a commissioner of the JSC by operation of Article 171(2)(c) and no person or body can purport to effect the membership in the JSC through a process that is outside Article 171 (2)(c),” LSK says.

The National Assembly will be acting outside the constitution and without legal authority, they said.

Similarly LSK through lawyer Lempaa Suyianka claims that once the vetting is conducted it cannot be undone and would be a permanent blot on the constitution.

Mr Suyianka added that the procedure adopted by the National Assembly is unconstitutional of section 15(2) of the JSC act.

On March 9, Pusine Judge Mohammed Warsame was elected by the judges of the court of appeal as a member of the judicial Service Commission.

President Uhuru Kenyatta nominated Justice Warsame as a member of the Judicial Service Commission and as such Parliament summoned him for vetting.

LSK thereby seeks to invalidate that appointment and stop the National Assembly from vetting the Judge.

WOMAN CHARGED WITH AIDING “SABINA CHEGE” DEFRAUD MEMBERS OF PARLIAMENT.

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M-pesa agents Catherine Nyaboke Omwene who denied registering a sim card with Muranga women representative name before a Nairobi Court on Monday March 26,2017.

BY NT CRIME REPORTER.

A woman accused of registering a sim card with Muranga women rep Sabina Chege’s name has been arraigned in court.

Catherine Nyaboke Omwene is alleged that on March 3 2018 at Update Beauty Shop Donholm in Nairobi within Nairobi County with others not before court, being a Safaricom Agent, she knowingly conspired to register Safaricom mobile 0727008230 in Sabina Chege’s name to one Waziri Benson Masubo with intent to defraud the public.

The accused is charged with another count of permitting, falsification and obtaining registration by false pretense.

She denied all the five criminal counts and released on a cash bail of Sh100,000.

Nyaboke appeared before senior principle Magistrate Martha Mutuku.

Proceedings resume April 26.

GOVERNOR MIKE SONKO’S DECISION TO BAN BODABODA OPERATION IN CBD UPHELD.

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Nairobi County Governor Mike Muvi Sonko in his office City Hall in Nairobi.

BY SAM ALFAN.

Governor Mike Sonko’s decision to kick out Boda Boda operators out of the city centre has been upheld.

The High Court dismissed the case filed by Starehe MP Charles Kanyi alias Jaguar challenging the decision to ban boda bodas from accessing CBD.

Justice Roselyn Aburili ruled that MP Jaguar did not prove how the rights of boda boda riders have been violated.

“The county has a right to enforce laws and I cannot interfere with their decision,” said judge Aburili.

The court said the county government should follow their mandate to implement and enforce the law they already have.

She told the riders to learn to respect the rulings of the court.

Governor Sonko made the decision in January 24, 2018 but according to Jaguar it was made without consulting all the relevant stakeholders.

The MP further termed the move as ill informed, unilaterally made and based on irrelevant considerations.

The legislator was keen to observe that the boda boda ban may result in more harm than good as the operators will be left frustrated and without a source of income which may force them to engage in criminal activities.

He added that the ban is curtailing the economic rights of many riders who rely on ferrying passengers to and from the CBD.

He had asked the court to quash the decision.

Director of Operations at the City Inspectorate Department, Peter Mbaya, avowed that the only motorbikes allowed into the city are those with carrier boxes and those offering courier services and have branded boxes.

The ban, which took effect on January 23 was meant to curb the increased crime in the CBD.

“Pursuant to the provisions of the Traffic Act CAP 403 of 2014 of the Laws of the Republic of Kenya, the Nairobi City County Government wishes to inform all motorcycle (boda-boda) operators ferrying passengers to and from the Central Business District (CBD) that such activities have been banned with immediate effect,” read the notice.

JSC CONTESTS DECISION TO SUMMON JUSTICE WARSAME FOR VETTING.

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Elected Court of Appeal representative to Judicial Service Commission Justice Mohammed Warsame.

BY SAM ALFAN.

Attempt by National Assembly to vet elected court of appeal representative to Judicial Service Commission has been challenged in court.

The battle on whether Court of Appeal Justice Mohammed Warsame should appear before the National Assembly for vetting has taken a legal dimension.

Just a day after the Commission in a letter though its secretary Ann Amadi, said that Warsame will not appear for vetting, Law Society of Kenya has moved to the court seeking to suspend the Notice inviting members of the public to submit representations to the National Assembly concerning the vetting of Warsame.

Further the lawyer’s body are seeking conservatory orders prohibiting the law makers from summoning or vetting Justice Warsame as a member of the JSC saying that it is unconstitutional and invalid.

In a petition filed this afternoon at the Milimani Law courts, LSK argue that Mohammed Warsame automatically became a member of the Judicial Service Commission by operation of Article 171(2)(c) upon his election by the court of appeal judges.

“Mohammed Warsame became a commissioner of the JSC by operation of Article 171(2)(c) and no person or body can purport to effect the membership in the JSC through a process that is outside Article 171 (2)(c),
”reads the documents filed in court

LSK argue vetting Warsame the National Assembly will be acting outside the constitution and without legal authority.

LSK through lawyer Lempaa Suyianka want the matter be certified as urgent saying once the vetting is conducted it cannot be undone and would be a permanent blot on the constitution.

“There’s no prejudice to be borne by the National Assembly if the vetting is delayed through a conservatory order so as to preserve the status quo in the short period it takes to hear and determine the petition,” says Suyianka.

According to the petition, the procedure adopted by the National Assembly is unconstitutional of section 15(2) of the JSC act.

On 9th of this month, Pusine Judge Mohammed Warsame was elected by the judges of the court of appeal as a member of the judicial Service Commission.

“However the president has purported to nominate Warsame as a member of the Judicial Service Commission,’’reads the court documents

LSK says that they seek to invalidate as unconstitutional the purported appointment by the president, of Warsame as a member of JSC together with the National Assembly purported vetting as a member of the commission by election.

Hearing for further directions to resume next week.

OMTATAH WANTS DIRECTIVE ON AGE LIMIT ABOLISHED.

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Chief of staff Joseph Kinyua.

BY CORRESPONDENT.

Human rights crusader Okiya Omtatah has moved to court seeking directives by Public Service Commission and Chief of staff Joseph Kinyua over a circular that scrapped age and term limits for chief executive officers of State corporations abolished.

Omtatah wants the court to issue an interim order of injunction prohibiting Kinyua and PSC from implementing in any way whatsoever the said circular.

Omtatah argues that Kinyua does not have the capacity in law to direct the operations of the public service he has issued circular ref. no. op/cab.9/1a of 27th February 2018 seeking to exempt CEOs of public bodies from the application of the law on of the mandatory retirement age of 60 years and also to change the maximum tenure they can serve from a maximum of six years to ten years.

In court documents filed today, Omtatah claims that Kinyua who is the State House Chief of Staff , purporting to have powers to instruct or direct principal Secretaries, yet he has never been vetted by parliament and is not an authorized officer.

“Kinyua is a busybody with no capacity to oust the mandate of the Public Service Commission” claims Omtatah.

Omtatah wants the court to declare that the office of the Head of Public Service does not exist in law and such designation are invalid, null and void.

“Unless stopped by this honorable court, the impugned circular will be implemented across the public service, and the constitution and the law will be violated” reads the petition
According to Omtatah, Kinyua issued the circular which was subjectively created through an irregular, harried, arbitrary and opaque process that did not involve public participation.

“The right to fair administrative action is violated to the extent that impugned exemption of the CEOs from mandatory retirement age, and extension of tenures is not lawful reasonable or procedurally fair”
Omtatah argues.

He also wants the court to compel Kinyua to immediately refund to PSC any money that he had earned while allegedly masquerading as the Head of Public Service.

Proceedings to resume.