The Public Service Commission (PSC) wants the Employment and Labour Relations Court to reverse the decision of Education Cabinet Secretary Migo Ogamba to deploy a retired civil servant as the acting Managing Director of the Kenya Literature Bureau (KLB).
In its court filings, PSC says the deployment of Mr Paul Kibet by the CS and the KLB Board of directors was unlawful and breached the public service regulations, although they have since denied the alleged breaches.
The court papers show that Mr Kibet retired from the public service upon attainment of the mandatory 60 years of age in June 2024, but was re-engaged back into the service on a contract basis in the position of Director, Education in the Ministry of Education.
He was hired on a two-year contract to assist in steering reforms that were ongoing in the education sector at the time, like the implementation of the Junior School policies.
PSC maintains that his previous permanent and pensionable appointment was never extended and that, according to the Public Service Regulations, 2020, he was ineligible to be appointed acting managing director for KLB –a State Corporation.
This is because the PSC did not authorise his redeployment or secondment from the Ministry to KLB. According to the public service regulations, secondment is restricted to officers on permanent and pensionable terms of service.
The arguments are contained in the PSC’s submissions to a case filed by Mr Alex Vihasi Mwalah at the Employment and Labour Relations Court, Nairobi, seeking to void Mr Kibet’s appointment as acting MD for KLB.
“The Cabinet Secretary, Ministry of Education, Science and Technology had no power to deploy the sixth Respondent (Kibet) to the Kenya Literature Bureau as deployment can only be done within the same public body,” says the PSC assistant director, legal services, Wangenchi Gichangi in the court papers.
Mr Kibet’s hiring followed a letter by the Education CS to the PSC dated April 25, 2024, requesting the Commission to engage Mr Kibet on local agreement terms beyond the mandatory retirement age to the position of Director, Education.
In the said letter, the Cabinet Secretary requested the Commission to hire Mr Kibet for a period of two years with effect from June 6, 2024, upon attainment of the mandatory retirement age.
The CS highlighted key areas where Mr Kibet’s expertise and involvement had been crucial at the Ministry, such as the ongoing education reforms at the time. However, PSC now argues that this contract did not authorise the Ministry to redeploy him to KLB.
It says the contract was for Mr Kibet to undertake specific duties as the Director of Education, which could not be undertaken by any other officer.
PSC states that the Principal Secretary at the time indicated that the officer had a critical and sensitive role in the initiatives, such as the implementation of Junior School Policies, placement of Grade 9 to Grade 10 transition, and drafting of bills and guidelines for Senior School implementation.
“It is the Commission’s submission that, having been appointed on local agreement terms to undertake specific duties, the sixth Respondent (Kibet) was not eligible for appointment to undertake other roles and responsibilities outside those that were the basis for appointment on local agreement terms beyond the mandatory retirement age,” says the Commission.
“By deploying him/seconding him to the position of Acting Managing Director, the Cabinet Secretary and Authorised Officer were in breach of the Local Agreement Contract,” it adds.
The court papers further show that the KLB Board seconded and approved the appointment of Mr Kibet as Acting Managing Director for a period of six months, effective March 21, 2025, after he was identified by the CS Education.
But the Commission submits that the Board lacked power to second a staff member working at the Ministry and only the PSC had such power pursuant to Section 42(1) of the Public Service Commission Act.
The term of the previous Acting Managing Director, Mr Julius Aritho, ended on March 20, 2025.
“The sixth respondent at the time of his appointment to act as a Managing Director was not a public officer serving at the first respondent (KLB). There was no basis for the calculation of the 20 per cent acting allowance to be paid to them to act, as the allowance is based on the basic salary of the substantive position, they hold in the public body, in which case he was not holding any position at the Kenya Literature Bureau,” says Ms Gichangi.
The PSC wants the court to direct KLB to advertise for the position of Managing Director in accordance with Article 232(1)(g) of the Constitution and the Public Service Commission Act and appoint a substantive holder of the position to enable the entity to undertake its mandate.
The case is pending determination.If upheld, the court’s decision could set a precedent limiting how retired civil servants are rehired in state agencies.
