Muturi was among those dismissed by the Head of State who announced the dissolution of the entire Cabinet, a move that saw 21 Cabinet Secretaries sent home on the spot on Thursday, July 11.
Nakuru Doctor and law student, Dr Magare Gikenyi, has moved to court to challenge the dismissal of Attorney-General Justin Muturi by President William Ruto.
Muturi was among those dismissed by the Head of State who announced the dissolution of the entire Cabinet, a move that saw 21 Cabinet Secretaries sent home on the spot on Thursday, July 11.
Viral Tea is in receipt of the petition filed by Dr Gikenyi and six other Kenyans who argued that the removal of the AG was illegal, irregular, and unconstitutional.
The doctor had argued that the AG can not be removed from office at the pleasure of the president.
Dr Benjamin Magare Gikenyi during a past press briefing. /MTAA WANGU
“I have read the Notice of motion Application dated 11/07/2024, the certificate of urgency of even date together with the affidavit in support sworn by Dr. Magare Gikenyi J. Benjamin and direct as follows:
“Service of the Application be effected within the next 14 days. Responses be filed and served within 14 days from the date of receipt of responses. If need be, the Applicant/Petitioner may file a rejoinder within 14 days from the date of receipt of responses,” read court orders in part, with the date set for September 30, 2024, for further directions.
In the petition seen by Viral Tea, the doctor argued that the President terminated Muturi from his post through a pleasure doctrine despite Section 12 of the Attorney General’s Office Act No 49 Of 2012 in which it established statutory grounds upon which he can be removed which inter alia enshrined the principle of fair hearing and protection of public servants pursuant to Articles 47 and 236 of the Constitution.
Making reference to Section 12 of the aforementioned Act, he noted that the President could only remove the AG or the Solicitor-General from office only for serious violation of the Constitution or any other law, gross misconduct, whether in the performance of their functions or otherwise, physical or mental incapacity to perform the functions of office, incompetence or bankruptcy.
Notwithstanding the provisions of subsection (1), the President may, upon election under the Constitution, appoint a person who is qualified as Attorney General in accordance with the provisions of the Constitution and the Act referenced by the doctor.
“That from the above, the president has no powers to dismiss the honourable attorney general without adhering to the said statutory conditions within the principle of fair hearing as established in article 47 as read with article 236 of the constitution and/or upon the election of the new government,” the petition reads in part.
It is worth noting that Article 236 prevents a public officer from being victimised or discriminated against for having performed the functions of office in accordance with the Constitution or any other law; or being dismissed, removed from office, demoted in rank or otherwise subjected to disciplinary action without due process of law.
While arguing that the office of the AG is an independent office protected by the Constitution, Dr Gikenyi noted that the holder cannot be removed whimsically without following statutory and constitutional processes.
“THAT the absence of the substantive holder of the office exposes the government to inadequate defence of numerous cases filed against the government since the said office holder is important in giving direction to the office,” the petition added.
He worried that if the court does not stop the illegal actions and/omissions done by the president and/or respondents then constitutional violations will continue against principles of good governance.
