The County Public Service Board does not have a chairman and secretary.
Four activists have gone to court asking it to nullify important appointments made by Kisii Governor James Ongwae.
Mr Kennedy Mogire, Mr Peter Momanyi, Mr Mackanthon Maisiba and Mr Vincent Gekone say the appointments of the county secretary, executive members and directors were done without a properly constituted County Public Service Board.
The devolved government, the county assembly, Assembly Speaker David Kombo and the Public Service Board have been enjoined in the case.
“We bring the petition in our capacity and generally as members and officials of the Gusii Governance Watch, a group which stands for good leadership,” the four said in their affidavit.
They were represented by their lawyer Aboki Begi.
Last week, the High Court directed the case be moved to the Employment and Labour Relations Court in Kisumu.
The county government through its lawyer Kennedy Onsembe, the assembly speaker and county legal adviser Andrew Kombo asked the High Court to consider transferring the case to the Labour Court, “since the matter is employment-related”.
“The governor is enjoined in this case because he is answerable to the Kisii County electorate,” the petitioners said.
“He is directly elected to perform functions assigned to his office under the Constitution and the enabling legislation, roles he has abdicated.”
The four added that the Public Service Board, as currently constituted, does not have the mandate or capacity to perform its functions.
Legally, the board is made up of a chairperson, nominated and appointed by the governor with the approval of the county assembly.
It should also have not less than three but not more than five other members nominated and appointed by the county boss with the approval of ward representatives.
The Constitution says the board should have a certified public secretary of good professional standing nominated and appointed by the governor with the approval of the county assembly.
The Kisii County Public Service Board lacks a chairman and a secretary.
The chairman of the board resigned from office to become the speaker of the county assembly.
“The board secretary was suspended and no replacement has been made to date,” the petitioners said.
The activists added that failure by the devolved government to establish a constitutionally accepted entity known as the Kisii County Public Service Board as spelt out in the County Government Act has hampered the responsibilities of the board.
The board establishes offices in the county government, appointing people to hold or act in those offices, confirm appointments and exercise disciplinary control over removing persons holding or acting in those offices.
The Kisii devolved government announced vacancies for the positions of chairperson and member of the Public Service Board, county attorney among other offices, a move the four activists insist was in contravention of the law.
“There is no requisite quorum to transact the affairs and functions of the Kisii Public Service Board because its membership lacks a substantive chairman and secretary,” the four applicants said in their affidavit.
They said they were denied their right to public participation during the vetting of nominees for chief officers and the county secretary by the assembly, and that their rights to democratic governance, inclusiveness and participation in the decisions of governance have been unfairly curtailed.
The petitioners want the court to declare the recruitment and subsequent appointments illegal.
They also want a permanent injunction issued to restrain the named officers from performing any function in the Kisii County public service.