Introduction
1. The Petition dated 15 th June 2023 is supported by the Petitioner’s affidavit in support of similar date and further supplementary affidavits dated 23 rd June 2023, 14 th July 2023 and 24 th July 2023.
2. The Petition challenges the 5 th Respondent’s appointment to the office of the Director General of the National Intelligence Service (NIS) vide Gazette Notice No.7688 dated 13 th June 2023.
3. The Petitioner avers that the 5 th Respondent’s appointment is a gross violation of the Constitution owing to the fact at the time of the appointment, there were several unresolved petitions pending at the 4 th Respondent against the Petitioner questioning his integrity, competence and suitability to hold the office of the Director of Public Prosecutions, which is a public office.
4. Consequently, the Petitioner seeks the following remedies against the Respondents:
Declarations
i. The 5 th Respondent was ineligible for nomination, approval and appointment to be Director-General, NIS, as, at the dates of the nomination, vetting, approval for appointment, appointment and assumption to office, he was the subject of unresolved petitions seeking his removal from the office of DPP [his immediate former State office] on grounds of non-compliance with Chapter Six of the Constitution, incompetence, gross misconduct and misbehaviour. His personal integrity, competence and suitability as the DPP was also the subject of ongoing legal proceedings in the High Court Petition HCCHRPET E492 OF 2022.
ii. The 5 th Respondent was ineligible for nomination, approval and appointment to be Director-General, NIS, as, at the dates of the nomination, vetting, approval for appointment and appointment to office, he was the holder of an office declared by the Constitution to be an independent office and the nomination for approval was otherwise than after a public, competitive recruitment process.
iii. Persons who hold a State/public office declared to be an independent office by the Constitution or statute, are ineligible for nomination and/or appointment to another State/public office otherwise than after a public, competitive recruitment process.
iv. H.E. The President Of The Republic violated the Constitution and the law by nominating the 5th Respondent, for approval by the National Assembly and, upon approval, appointing and presiding over his assumption to office of Director-General, NIS, notwithstanding knowing that the 5th Respondent was, as, at the dates of the nomination, vetting, approval for appointment, appointment and assumption to office, the subject of petitions seeking his removal from the office of DPP [his immediate former State office] on grounds of non-compliance with Chapter Six of the Constitution, incompetence, gross misconduct and misbehaviour.
v. The 2 nd Respondent failed to discharge its constitutional mandated and, thereby, violated the Constitution and the law, by carrying out a sham approval process which ended with it recommending to the 3rd Respondent to approve the 5 th Respondent for appointment to the office of Director-General, NIS, notwithstanding that the 5th Respondent was, as, at the dates of the nomination, vetting and approval for appointment, the subject of petitions seeking his removal from the office of DPP on grounds of non-compliance with Chapter Six of the Constitution, incompetence, gross misconduct and misbehaviour.
vi. The 2 nd Respondent failed to carry out its constitutional mandated and, thereby violated the Constitution and the law, by failing to use its powers and require a report from the 4th Respondent on the status of any petitions received under Article 158 of the Constitution, as read together with Section 9, ODPP Act, 2013, Section 76, Public Service Commission Act, 2017 and applicable regulations, seeking the removal of the 5 th Respondent from the office of DPP for non-compliance with Chapter Six of the Constitution, incompetence, gross misconduct or misbehaviour.
vii. The 2 nd Respondent failed to carry out its constitutional mandated and, thereby violated the Constitution and the law, by failing to ensure adequate public participation as part of the approval/vetting process to determine the suitability of the 5th Respondent to be approved for appointment to the office of Director-General, NIS.
viii. Based on the record of the report prepared by the 2 nd Respondent after vetting the 5 th Respondent, the 2 nd Respondent’s decision to recommend approval of the 5th Respondent, was not constitutionally and statutorily founded.
ix. The 2 nd Respondent failed to carry out its constitutional mandate and, thereby violated the Constitution and the law by failing to take into account the submitted written statements contesting the suitability of the 5th Respondent to be recommended for approval and appointment to the office of Director-General, NIS, including by misdirecting itself as to the role of EACC in the process of removal from office of the DPP, even as it acknowledged that this duty reposed in the 4 th Respondent.
x. The 3 rd Respondent violated the Constitution and the law by approving the appointment of the 5 th Respondent, based on the recommendations of the 2 nd Respondent, despite knowing that, at the date of the nomination, recommendation for approval and approval for appointment to the office of Director-General, NIS, he was the subject of unresolved petitions and legal proceedings challenging his personal integrity, competence and suitability thereby making him ineligible to be approved for such appointment.
xi. The 4 th Respondent violated the Constitution and the law by refusing to submit a report to the 2 nd Respondent, setting out the details and status of the petitions it had received for the removal of the 5 th Respondent from office of DPP on the basis of his non-compliance with Chapter Six of the Constitution, gross incompetence, gross misconduct or misbehaviour, subsisting at the dates of the nomination and the subsequent approval/vetting hearing conducted by the 2nd Respondent.
xii. The appointment of the 5 th Respondent to the office of Director-General, NIS, as notified by the Kenya Gazette No. 7688 dated 13 th June 2023, was unconstitutional, null and void.
Orders
xiii. Quashing the nomination, by H.E. the President, of the 5 th Respondent to the office of Director-General, NIS.
xiv. Quashing the recommendation by the 2 nd Respondent for the 5 th Respondent to be approved for appointment to the office of Director-General, NIS.
xv. Quashing the report tabled in the National Assembly on 6 th June 2023 by the 2 nd Respondent following its vetting/approval hearing of the 5 th Respondent to be approved for appointment to the office of Director-General, NIS.
xvi. Quashing the approval by the 3 rd Respondent for the 5 th Respondent to be appointed to the office of Director-General, NIS.
xvii. Quashing the Kenya Gazette Notice No. 7688 dated 13 th June 2023, notifying the appointment of the 5 th Respondent as Director-General, NIS.
xviii. Quashing the appointment, by H.E. the President vide Kenya Gazette Notice No. 7688 dated 13 th June 2023, of the 5 th Respondent as Director-General, NIS.
xix. Nullifying the 5 th Respondent’s assumption to the office of Director-General, NIS, on 14 th June 2023.
xx. Requiring parties in these proceedings to meet their own costs.
xxi. Any others orders or directions that this Court deems just and fit to grant to meet the exigencies of justice and the requirements of the Constitution.
Petitioner’s Case
5. On 16 th May 2023, H.E. Dr. William Samoei Ruto nominated the 5 th Respondent for appointment as the Director-General, NIS which appointment was subject to the approval of the 3 rd Respondent.
6. The Petitioner depones that the 3 rd Respondent through the Clerk on 20 th May 2023 notified of the 5 th Respondent vetting hearing before the 2 nd Respondent on 29 th May 2023 and invited the public to submit their views concerning his suitability for the office of Director General – NIS, by 29 th May 2023. He depones that he submitted his written statement on 29 th May 2023 which contested the suitability of the 5 th Respondent.
7. The 5 th Respondent appeared before the 2 nd Respondent as scheduled and requested to answer the vetting committee’s questions to the exclusion of members of the public and the media, which request was approved in part. He avers that this was the first time such a request had been made.
8. The Petitioner takes issue with the continuation of the vetting process as at the time there were 6 petitions before the 4 th Respondent seeking the 5 th Respondent’s removal from office and further his suit HCCHR PET MISC No. E037 of 2021 was still pending in Court. He alleges that the 5 th Respondent erroneously informed the vetting committee that all the petitions before the 4 th respondent had been withdrawn.
9. Upon conclusion of the interview, the 2 nd Respondent tabled its Report to the 3 rd Respondent, recommending the 5 th Respondent’s appointment. The Petitioner asserts that in giving this recommendation, the 2 nd Respondent misdirected itself as to the nature of the statements contesting the 5 th Respondent’s suitability thereby making a recommendation outside the provisions of the Constitution and the applicable laws.
10. Further to this, the Petitioner argues that the 2 nd Respondent overlooked and misdirected itself on the question of the 5 th Respondent being enjoined in HCCHRPET 492/2022 in his personal capacity and which is yet to be determined and further the role of the Ethics and Anti-Corruption Commission (EACC).
11. The Petitioner contends that despite the 4 th Respondent being mandated to receive petitions for removal of the 5 th Respondent as a Director of Public Prosecutions (DPP), pursuant to Article 158 of the Constitution as read with Section 9 of the Office of Director of Public Prosecutions (ODPP) Act, similarly pursuant to Section 76 of the Public Service Commission Act, the 3 rd Respondent failed to write to the 4 th Respondent seeking information about any pending petitions for removal of the 5 th Respondent.
12. He faults the 3 rd Respondent for seeking information from the EACC which does not have any mandate to hear and determine petitions for removal from office of the DPP. The Petitioner stresses that the 2 nd and 3 rd Respondents were required by the Constitution and the law to seek reference and background checks from the 4 th Respondent on matters touching on the 5 th Respondent’s personal integrity, competence and suitability, however failed to do so.
13. The Petitioner further contends that the 2 nd Respondent is empowered to seek information from any person to enable it to fulfil its mandate yet failed to seek information from the 4 th Respondent and relied on the 5 th Respondent’s word, without making further interrogation, defeating the whole purpose of a vetting process. On this basis, the Petitioner argues that the 2 nd Respondent’s Report and its recommendation is legally untenable as it goes against the Constitution and applicable law.
14. The 4 th Respondent is similarly faulted for failing its constitutional mandate in that it did not write to the 3 rd Respondent to inform it on the pending petitions before it.
15. In the Petitioner’s opinion, had the 2 nd and 3 rd Respondents applied the Constitution and applicable laws under Article 73(2)(a), as read together with Article 158 of the Constitution, Section 4(4), NIS, Act, 2012, Section 9, ODPP Act, 2013 and Section 76, Public Service Commission Act, 2015, they would have found that the 5 th Respondent did not meet the constitutional and statutory requirements to be approved for appointment to the office of Director-General, NIS.
16. The Petitioner alleges that the 5 th Respondent’s appointment was a foregone conclusion even before his nomination, owing to the speed with which he was appointed and resigned from the office of the Director of Public Prosecutions.
17. Essentially, the Petitioner in this Petition stresses that the 5 th Respondent was ineligible for nomination, vetting, approval for appointment, appointment and assumption to the office of Director-General, NIS due to the outstanding and unresolved petitions for his removal from office before the 4 th Respondent, which impugn his personal integrity, competence and suitability for the to the office of Director-General, NIS.
18. Further to this that the 5 th Respondent was ineligible as at the dates of the nomination, vetting, approval for appointment and appointment to office, as he was still the DPP, which is an independent state and public office. The Petitioner argued that the only way the 5 th Respondent could have attained this office in the circumstances is through a competitive recruitment process not a nomination as in this case.
1 st Respondent’s Case
19. Opposing the Petition and application, the 1 st Respondent filed its grounds of opposition dated 8 th January 2024 on the premise that:
i. The Petitioner has not adduced any evidence in support of the allegation made against the 1 st Respondent.
ii. No tribunal constituted in accordance with the provisions of Article 158(4) of the Constitution made any finding that warranted the removal of the 5 th Respondent from the Office of Director of Public Prosecutions.
iii. The Public Service Commission did not send any petition to the President disclosing the existence of any ground under Article 158 (1) of the Constitution.
iv. The allegations on what either the Public Service Commission or the Tribunal constituted under Article 158(4) of the Constitution would have found and recommended is at best speculative and cannot legally form the basis of impeaching the 5 th Respondent’s nomination, approval and appointment into the office of Director-General, National Intelligence Service.
v. Neither this Court nor the National Assembly can substitute the role of the Public Service Commission and the Tribunal under Article 158 of the Constitution.
vi. The Petition is antithetic to the doctrine of separation of powers as it seeks to replace the National Assembly’s role with this Court in the approval process on the appointment of the Director-General National Intelligence Service.
vii. This Court should not reconstitute itself as the vetting/approving body as propagated by the Petitioner in the case.
viii. It would be grossly unjust for alleged acts of commission or omission attributed upon an independent constitutional commission like the Public Service Commission to be visited upon the 5 th Respondent as sought in the Petition.
ix. Pendency of legal proceedings neither vitiates the presumption of innocence nor dispenses with the legal and evidential burden of proof required to arrive at an adverse finding that would have disqualified the 5 th Respondent under obtaining law.
x. The Petition is speculative on what National Assembly may or may not have found.
xi. It would be a travesty of justice for this Court to draw a negative inference on the 5 th Respondent’s exercise of his constitutional and lawful right to seek and obtain legal relief from the judiciary as propagated by the Petitioner.
xii. Article 79 of the Constitution provides for the establishment of an independent ethics and anti-corruption commission with the status and powers of a commission under chapter fifteen for purposes of ensuring compliance with and enforcement of the provisions of chapter six of the constitution, this Court cannot therefore assume primary responsibility in lieu of the constitutional repository of the function as proposed by the Petitioner.
xiii. The Petitioner has failed to plead and prove any specific infraction of the constitution by the 5 th Respondent that would serve to bar the 5 th Respondent from being appointed as Director General of the National Intelligence Service, the Petitioner is improperly seeking to take over and canvass unresolved complaints by parties who despite full knowledge of the appointment process of the 5 th Respondent into office deliberately elected not to urge the same.
xiv. The petition is premised on inadmissible evidence as the same is sought to be adduced contrary to the provisions of sections 106A and 106B of the Evidence Act.
xv. The Petition is based on evidence that is not original to the Petitioner, therefore hearsay and inadmissible.
2 nd and 3 rd Respondents’ Case
20. These Respondents filed their Replying Affidavit through the Clerk of the 3 rd Respondent, Samuel Njoroge sworn on 18 th July 2023. He stated that following the nomination of the 5 th Respondent through the Notification of Presidential Action dated 18 th May 2023, the matter was transmitted to the House pursuant to Section 7(2) of the NIS Act and Section 5 (1) of the Public Appointments (Parliamentary Approval) Act.
21. Thereafter, on 20 th May 2023, the National Assembly pursuant to Article 118 of the Constitution and Section 6(4) of the Public Appointments (Parliamentary Approval) Act invited the public to give its views, comments and memoranda on the 5 th Respondent’s nomination by 29 th May 2023. In this regard, the 2 nd Respondent received 26 memoranda including one by the Petitioner. 22 of these were in favour of the 5 th Respondent’s nomination while the rest against it.
22. He further depones that, the 3 rd Respondent wrote to the Kenya Revenue Authority (KRA), the Ethics and Anti -Corruption Commission (EACC), the Directorate of Criminal Investigations (DCI), the Higher Education Loans Board (HELB) and the Office of the Registrar of political Parties (ORPP), seeking reference and background checks for the 5 th Respondent. It is noted that these organs in their responses cleared the 5 th Respondent for appointment. Related to this, he avers that the 3 rd Respondent’s is not legally required to seek clearance from the 4 th Respondent.
23. He depones that the 5 th Respondent was invited on 23 rd May 2023 to appear before the 2 nd Respondent for a hearing. The hearing was conducted on 30 th May 2023 and by the 5 th Respondent request, the hearing was not done in public. He stated that the 5 th Respondent’s suitability was based on the criteria set out under Section 7 of the Public Appointments (Parliamentary Approval) Act and the constitutional requirements.
24. In the end, the 2 nd Respondent determined that the 5 th Respondent had met the requisite requirements for appointment as the Director General and made the recommendation to the 3 rd Respondent. This Report was tabled before the House on 6 th June 2023. The National Assembly approved his nomination on 13 th June 2023 and gazetted the same vide Notice No.7688.He was sworn in as the Director General of the NIS the following day.
25. In light of this, it is asserted that these Respondents adhered to the constitutional and statutory requirements in the appointment of the 5 th Respondent.
4 th Respondent’s Case
26. In reply, the 4 th Respondent through its Chief Executive Officer, Simon K. Rotich filed a Replying Affidavit sworn on 22 nd June 2023.
27. He confirms that the 4 th Respondent’s authority with regard to removal from office of a person holding the office of the Director of Public Prosecutions is provided under Article 158(2) and (3) of the Constitution. Tied to this, he deponed that the 4 th Respondent in 2021 received two petitions seeking the removal of the 5 th Respondent as the Director of Public Prosecutions (DPP).
28. However, the 5 th Respondent filed Nairobi HCCHR Misc. Petition No. E037 of 2021 and obtained orders halting the 4 th Respondent going on with the further consideration of the petitions. The suit had not been determined at the time of swearing this affidavit.
29. He depones that almost the same time, the 4 th Respondent received further 8 petitions seeking the removal of the 5 th Respondent from office. He notes however that 6 of these petitions had been withdrawn prior to the nomination of the 5 th Respondent for appointment as the Director General of the NIS.
30. He further makes known that soon after the 5 th Respondent’s nomination, the 4 th Respondent received 2 additional petitions seeking his removal as the DPP. The 4 th Respondent was however not able to consider these petitions owing to the existing Court order.
31. He stated that since the 4 th Respondent never finalized consideration of the petitions, it was not able to provide a Report to the 3 rd Respondent through the 2 nd Respondent during the 5 th Respondent’s vetting. He avers nonetheless giving such a Report would have been prejudicial to the 5 th Respondent as it would have amounted to condemning him without a hearing in violation of Article 47 of the Constitution.
32. He adds that the same would have also been in violation of Article 158 (3) of the Constitution which only permits issuance of a Report to the President once the 4 th Respondent is satisfied that a ground under clause (1) is existent. For this reason, he asserts that the 4 th Respondent was not under any obligation to inform the 3 rd Respondent of the pending petitions against the 5 th Respondent. He as such argues that the Petition lacks merit and hence should be dismissed with costs.
5 th Respondent’s Case
33. In response, the 5 th Respondent filed his Replying affidavit sworn on 8 th July 2023. On preliminary note, the 5 th Respondent asserts that the Petition fails to meet the constitutional threshold of Petitions as set out in Anarita Karimi Njeru v Republic (1979) eKLR and reaffirmed in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR . This is because it does not provide the particulars of the alleged complaints against him and the manner in which he violated the specified provisions.
34. The 5 th Respondent further asserts that the Petitioner has failed to discharge the burden of proof as required under Section 107(1), 109 and 112 of the Evidence Act for grant of the interlocutory orders. He also cited inter alia the case of Commission for Human Rights and Justice v Torrut & 5 others (Petition E024 of 2021) [2022] KEHC 11931 (KLR) that addressed the question of standard of proof.
35. Further, he contended that the Petitioner did not provide proof to support the claim of non - compliance with Chapter six of the Constitution other than making general allegations based on hearsay and false information. He argued that the Petitioner filed this matter with an ulterior motive to tarnish his reputation and termed the Petitioner’s case as frivolous and vexatious.
36. In answer to the Petitioner that there were pending Petitions for his removal at the 4 th Respondent that question the exercise of his mandate when held the office of the DPP, the 5 th Respondent asserted that the decision to withdraw cases in the year 2021/2022 was in line with the Constitution and discretion given under Article 157(8) of the Constitution, hence his actions and conduct as the DPP were in line with the law and the Constitution. He thus argued that withdrawal of cases as cannot constitute a ground for removal of the DPP from office nor does it support the claim for incompetence or lack of integrity.
37. He pointed out that the Petitioner’s complaint against him ought to have been lodged in the right forum yet this was not done. He in the same way prior to filing of this Petition did not lodge any complaint with the 5 th Respondent during his tenure as the DPP. He for this reason, he urged the Court to dismiss this Petition with costs.
Petitioner’s Submissions
38. The Petitioner filed submissions dated 31 st January 2025.
39. He maintained that the 5 th Respondent was not eligible for nomination, approval and appointment to the office of Director General - NIS. He reiterated that it is clear that at the dates of the nomination, approval, appointment and assumption to the office, the 5 th Respondent was subject of at least 6 unresolved petitions seeking his removal as DPP before the 4 th Respondent, filed in line with Article 158 of the Constitution.
40. The Petitioner further argued that Section 4(4), National Intelligence Service (NIS) Act, imposes an explicit, mandatory duty on the President and the 3 rd Respondent to observe the provisions of Article 73(2)(a) of the Constitution, in appointing a person to the office of Director General - NIS. He argued that despite the constitutional and statutory requirements, the President and the 3 rd Respondent, nominated, approved for appointment and appointed, the 5 th Respondent to the office of the Director General – NIS.
41. The Petitioner contended that in exercising the powers donated by Articles 124(4), 132(2)(f) and 242 of the Constitution, Section 7, NIS Act and the Public Appointments (Parliamentary Approval) Act, the Respondents were under a duty to uphold and protect the Constitution, which they failed to do. In failing to do so, the Petitioner argued that the Respondents unlawfully exercised the powers donated to them under the Constitution thereby subverting and destroying the effect and operation of other the constitutional provisions.
42. The Petitioner relying in Law Society of Kenya v Attorney General & another [2021] eKLR submitted that the Constitution must be read and interpreted holistically, with each provision sustaining the others and none destroying the others. Further reliance was placed on Robert Alai v Attorney General & another [2017] eKLR .
43. The Petitioner further faulted the Petitioner’s nomination as a State Officer yet was required to be subjected to a fair competition and be selected on merit. He argued that, instead, his selection was at the behest of the President. The Petitioner submitted that this was contrary to the explicit requirements of Article 73(2)(a) of the Constitution as read with Section 4(4), NIS Act.
44. The Petitioner also submitted that the 4 th Respondent in HCCHRPET MISC. No. E037 of 2021 informed the Court that it was desirous to consider the petitions received under Article 158 of the Constitution. He argued that the Respondents’ deliberate actions of nonetheless nominating, approving and appointing the 5 th Respondent as Director General - NIS, rendered this process moot thus their actions unconstitutional, null and void. On this premise, the Petitioner emphasized that the 5 th Respondent was not eligible for the office.
45. The 3 rd Respondent is faulted for taking into account irrelevant information and factors concerning the 5 th Respondent’s suitability for appointment to the office while failing to consider relevant information such as the pending petitions. He stresses that this was not in line with the compliance requirements under Section 4(4) NIS Act. The Petitioner asserted that it is trite law that where a decision-maker takes into account irrelevant considerations in making a decision or fails to take into account relevant considerations in that process, the resulting decision is irrational and, hence, unconstitutional, null and void as held in Democratic Alliance – v – The President of the Republic of South Africa & 3 Others (Case CCT 122/11 [2012] ZACC 24) .
46. Additional reliance was placed on Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others; Bhatia (Amicus Curiae) (Petition E031, E032 & E033 of 2024 (Consolidated)) [2024] KESC 63 (KLR) and Okoiti v Attorney General & 3 others; Sugut & 6 others (Interested Parties) (Petition E104 of 2023) [2024] KEHC 15701 (KLR) .
47. According to the Petitioner, the 3 rd Respondent failed to adhere to the constitutional requirements that govern public participation as mandated by Articles 10(2)(a) and 118(1)(b) of the Constitution in relation to public participation. In his view, the 3 rd Respondent through the 2 nd Respondent did not undertake adequate public participation when it approved the 5 th Respondent for appointment. The Petitioner alleged that the 3 rd Respondent adopted the recommendation without any further interrogations thus misdirecting itself. To this end, the Petitioner argued that he had substantiated his case against the Respondents in relation to the 5 th Respondent’s nomination and eventual appointment as the Director General – NIS.
1 st Respondent’s Submissions
48. On 18/2/2025, the 1 st Respondent was represented by Mr. Marwa who was holding brief for Mr. E. Bita. He informed this Court the 1 st Respondent filed submissions dated 3/4/2025. The Court directed Counsel to re-upload the submissions on the CTS as at that point, it could not access them on the CTS. The Court stated thus:
“The 1 st Respondent to re-upload its submissions and serve the Petitioner”
49. On 7/7/2025, Mr. E. Bita for the 1 st Respondent informed the Court he had re-uploaded the 1 st Respondent submissions and reserved all the parties. However, despite this, the Court could not locate the 1 st Respondent’s submissions on the Court online portal (CTS) or physically in the Court file at the point of writing this judgment.
2 nd and 3 rd Respondents’ Submissions
50. The 2 nd and 3 rd Respondents through Counsel Emacar Andrew filed submissions dated 11 th October 2023. He attacked the Petition stating that it does not meet the threshold set out in Anarita Karimi Njeru Case (supra).
51. He submitted that this Court’s jurisdiction is limited to an interrogation of whether the Constitution and the law was complied with. Reliance was placed in Pevans East Africa Limited & another v. Chairman, Betting Control and Licensing Board and 7 Others (2013) eKLR where the Court of Appeal held that:
“Courts must decline to intervene at will in the Constitutionals spheres of other organs, particularly when they are invited to substitute their
[...truncated]
1. The Petition dated 15 th June 2023 is supported by the Petitioner’s affidavit in support of similar date and further supplementary affidavits dated 23 rd June 2023, 14 th July 2023 and 24 th July 2023.
2. The Petition challenges the 5 th Respondent’s appointment to the office of the Director General of the National Intelligence Service (NIS) vide Gazette Notice No.7688 dated 13 th June 2023.
3. The Petitioner avers that the 5 th Respondent’s appointment is a gross violation of the Constitution owing to the fact at the time of the appointment, there were several unresolved petitions pending at the 4 th Respondent against the Petitioner questioning his integrity, competence and suitability to hold the office of the Director of Public Prosecutions, which is a public office.
4. Consequently, the Petitioner seeks the following remedies against the Respondents:
Declarations
i. The 5 th Respondent was ineligible for nomination, approval and appointment to be Director-General, NIS, as, at the dates of the nomination, vetting, approval for appointment, appointment and assumption to office, he was the subject of unresolved petitions seeking his removal from the office of DPP [his immediate former State office] on grounds of non-compliance with Chapter Six of the Constitution, incompetence, gross misconduct and misbehaviour. His personal integrity, competence and suitability as the DPP was also the subject of ongoing legal proceedings in the High Court Petition HCCHRPET E492 OF 2022.
ii. The 5 th Respondent was ineligible for nomination, approval and appointment to be Director-General, NIS, as, at the dates of the nomination, vetting, approval for appointment and appointment to office, he was the holder of an office declared by the Constitution to be an independent office and the nomination for approval was otherwise than after a public, competitive recruitment process.
iii. Persons who hold a State/public office declared to be an independent office by the Constitution or statute, are ineligible for nomination and/or appointment to another State/public office otherwise than after a public, competitive recruitment process.
iv. H.E. The President Of The Republic violated the Constitution and the law by nominating the 5th Respondent, for approval by the National Assembly and, upon approval, appointing and presiding over his assumption to office of Director-General, NIS, notwithstanding knowing that the 5th Respondent was, as, at the dates of the nomination, vetting, approval for appointment, appointment and assumption to office, the subject of petitions seeking his removal from the office of DPP [his immediate former State office] on grounds of non-compliance with Chapter Six of the Constitution, incompetence, gross misconduct and misbehaviour.
v. The 2 nd Respondent failed to discharge its constitutional mandated and, thereby, violated the Constitution and the law, by carrying out a sham approval process which ended with it recommending to the 3rd Respondent to approve the 5 th Respondent for appointment to the office of Director-General, NIS, notwithstanding that the 5th Respondent was, as, at the dates of the nomination, vetting and approval for appointment, the subject of petitions seeking his removal from the office of DPP on grounds of non-compliance with Chapter Six of the Constitution, incompetence, gross misconduct and misbehaviour.
vi. The 2 nd Respondent failed to carry out its constitutional mandated and, thereby violated the Constitution and the law, by failing to use its powers and require a report from the 4th Respondent on the status of any petitions received under Article 158 of the Constitution, as read together with Section 9, ODPP Act, 2013, Section 76, Public Service Commission Act, 2017 and applicable regulations, seeking the removal of the 5 th Respondent from the office of DPP for non-compliance with Chapter Six of the Constitution, incompetence, gross misconduct or misbehaviour.
vii. The 2 nd Respondent failed to carry out its constitutional mandated and, thereby violated the Constitution and the law, by failing to ensure adequate public participation as part of the approval/vetting process to determine the suitability of the 5th Respondent to be approved for appointment to the office of Director-General, NIS.
viii. Based on the record of the report prepared by the 2 nd Respondent after vetting the 5 th Respondent, the 2 nd Respondent’s decision to recommend approval of the 5th Respondent, was not constitutionally and statutorily founded.
ix. The 2 nd Respondent failed to carry out its constitutional mandate and, thereby violated the Constitution and the law by failing to take into account the submitted written statements contesting the suitability of the 5th Respondent to be recommended for approval and appointment to the office of Director-General, NIS, including by misdirecting itself as to the role of EACC in the process of removal from office of the DPP, even as it acknowledged that this duty reposed in the 4 th Respondent.
x. The 3 rd Respondent violated the Constitution and the law by approving the appointment of the 5 th Respondent, based on the recommendations of the 2 nd Respondent, despite knowing that, at the date of the nomination, recommendation for approval and approval for appointment to the office of Director-General, NIS, he was the subject of unresolved petitions and legal proceedings challenging his personal integrity, competence and suitability thereby making him ineligible to be approved for such appointment.
xi. The 4 th Respondent violated the Constitution and the law by refusing to submit a report to the 2 nd Respondent, setting out the details and status of the petitions it had received for the removal of the 5 th Respondent from office of DPP on the basis of his non-compliance with Chapter Six of the Constitution, gross incompetence, gross misconduct or misbehaviour, subsisting at the dates of the nomination and the subsequent approval/vetting hearing conducted by the 2nd Respondent.
xii. The appointment of the 5 th Respondent to the office of Director-General, NIS, as notified by the Kenya Gazette No. 7688 dated 13 th June 2023, was unconstitutional, null and void.
Orders
xiii. Quashing the nomination, by H.E. the President, of the 5 th Respondent to the office of Director-General, NIS.
xiv. Quashing the recommendation by the 2 nd Respondent for the 5 th Respondent to be approved for appointment to the office of Director-General, NIS.
xv. Quashing the report tabled in the National Assembly on 6 th June 2023 by the 2 nd Respondent following its vetting/approval hearing of the 5 th Respondent to be approved for appointment to the office of Director-General, NIS.
xvi. Quashing the approval by the 3 rd Respondent for the 5 th Respondent to be appointed to the office of Director-General, NIS.
xvii. Quashing the Kenya Gazette Notice No. 7688 dated 13 th June 2023, notifying the appointment of the 5 th Respondent as Director-General, NIS.
xviii. Quashing the appointment, by H.E. the President vide Kenya Gazette Notice No. 7688 dated 13 th June 2023, of the 5 th Respondent as Director-General, NIS.
xix. Nullifying the 5 th Respondent’s assumption to the office of Director-General, NIS, on 14 th June 2023.
xx. Requiring parties in these proceedings to meet their own costs.
xxi. Any others orders or directions that this Court deems just and fit to grant to meet the exigencies of justice and the requirements of the Constitution.
Petitioner’s Case
5. On 16 th May 2023, H.E. Dr. William Samoei Ruto nominated the 5 th Respondent for appointment as the Director-General, NIS which appointment was subject to the approval of the 3 rd Respondent.
6. The Petitioner depones that the 3 rd Respondent through the Clerk on 20 th May 2023 notified of the 5 th Respondent vetting hearing before the 2 nd Respondent on 29 th May 2023 and invited the public to submit their views concerning his suitability for the office of Director General – NIS, by 29 th May 2023. He depones that he submitted his written statement on 29 th May 2023 which contested the suitability of the 5 th Respondent.
7. The 5 th Respondent appeared before the 2 nd Respondent as scheduled and requested to answer the vetting committee’s questions to the exclusion of members of the public and the media, which request was approved in part. He avers that this was the first time such a request had been made.
8. The Petitioner takes issue with the continuation of the vetting process as at the time there were 6 petitions before the 4 th Respondent seeking the 5 th Respondent’s removal from office and further his suit HCCHR PET MISC No. E037 of 2021 was still pending in Court. He alleges that the 5 th Respondent erroneously informed the vetting committee that all the petitions before the 4 th respondent had been withdrawn.
9. Upon conclusion of the interview, the 2 nd Respondent tabled its Report to the 3 rd Respondent, recommending the 5 th Respondent’s appointment. The Petitioner asserts that in giving this recommendation, the 2 nd Respondent misdirected itself as to the nature of the statements contesting the 5 th Respondent’s suitability thereby making a recommendation outside the provisions of the Constitution and the applicable laws.
10. Further to this, the Petitioner argues that the 2 nd Respondent overlooked and misdirected itself on the question of the 5 th Respondent being enjoined in HCCHRPET 492/2022 in his personal capacity and which is yet to be determined and further the role of the Ethics and Anti-Corruption Commission (EACC).
11. The Petitioner contends that despite the 4 th Respondent being mandated to receive petitions for removal of the 5 th Respondent as a Director of Public Prosecutions (DPP), pursuant to Article 158 of the Constitution as read with Section 9 of the Office of Director of Public Prosecutions (ODPP) Act, similarly pursuant to Section 76 of the Public Service Commission Act, the 3 rd Respondent failed to write to the 4 th Respondent seeking information about any pending petitions for removal of the 5 th Respondent.
12. He faults the 3 rd Respondent for seeking information from the EACC which does not have any mandate to hear and determine petitions for removal from office of the DPP. The Petitioner stresses that the 2 nd and 3 rd Respondents were required by the Constitution and the law to seek reference and background checks from the 4 th Respondent on matters touching on the 5 th Respondent’s personal integrity, competence and suitability, however failed to do so.
13. The Petitioner further contends that the 2 nd Respondent is empowered to seek information from any person to enable it to fulfil its mandate yet failed to seek information from the 4 th Respondent and relied on the 5 th Respondent’s word, without making further interrogation, defeating the whole purpose of a vetting process. On this basis, the Petitioner argues that the 2 nd Respondent’s Report and its recommendation is legally untenable as it goes against the Constitution and applicable law.
14. The 4 th Respondent is similarly faulted for failing its constitutional mandate in that it did not write to the 3 rd Respondent to inform it on the pending petitions before it.
15. In the Petitioner’s opinion, had the 2 nd and 3 rd Respondents applied the Constitution and applicable laws under Article 73(2)(a), as read together with Article 158 of the Constitution, Section 4(4), NIS, Act, 2012, Section 9, ODPP Act, 2013 and Section 76, Public Service Commission Act, 2015, they would have found that the 5 th Respondent did not meet the constitutional and statutory requirements to be approved for appointment to the office of Director-General, NIS.
16. The Petitioner alleges that the 5 th Respondent’s appointment was a foregone conclusion even before his nomination, owing to the speed with which he was appointed and resigned from the office of the Director of Public Prosecutions.
17. Essentially, the Petitioner in this Petition stresses that the 5 th Respondent was ineligible for nomination, vetting, approval for appointment, appointment and assumption to the office of Director-General, NIS due to the outstanding and unresolved petitions for his removal from office before the 4 th Respondent, which impugn his personal integrity, competence and suitability for the to the office of Director-General, NIS.
18. Further to this that the 5 th Respondent was ineligible as at the dates of the nomination, vetting, approval for appointment and appointment to office, as he was still the DPP, which is an independent state and public office. The Petitioner argued that the only way the 5 th Respondent could have attained this office in the circumstances is through a competitive recruitment process not a nomination as in this case.
1 st Respondent’s Case
19. Opposing the Petition and application, the 1 st Respondent filed its grounds of opposition dated 8 th January 2024 on the premise that:
i. The Petitioner has not adduced any evidence in support of the allegation made against the 1 st Respondent.
ii. No tribunal constituted in accordance with the provisions of Article 158(4) of the Constitution made any finding that warranted the removal of the 5 th Respondent from the Office of Director of Public Prosecutions.
iii. The Public Service Commission did not send any petition to the President disclosing the existence of any ground under Article 158 (1) of the Constitution.
iv. The allegations on what either the Public Service Commission or the Tribunal constituted under Article 158(4) of the Constitution would have found and recommended is at best speculative and cannot legally form the basis of impeaching the 5 th Respondent’s nomination, approval and appointment into the office of Director-General, National Intelligence Service.
v. Neither this Court nor the National Assembly can substitute the role of the Public Service Commission and the Tribunal under Article 158 of the Constitution.
vi. The Petition is antithetic to the doctrine of separation of powers as it seeks to replace the National Assembly’s role with this Court in the approval process on the appointment of the Director-General National Intelligence Service.
vii. This Court should not reconstitute itself as the vetting/approving body as propagated by the Petitioner in the case.
viii. It would be grossly unjust for alleged acts of commission or omission attributed upon an independent constitutional commission like the Public Service Commission to be visited upon the 5 th Respondent as sought in the Petition.
ix. Pendency of legal proceedings neither vitiates the presumption of innocence nor dispenses with the legal and evidential burden of proof required to arrive at an adverse finding that would have disqualified the 5 th Respondent under obtaining law.
x. The Petition is speculative on what National Assembly may or may not have found.
xi. It would be a travesty of justice for this Court to draw a negative inference on the 5 th Respondent’s exercise of his constitutional and lawful right to seek and obtain legal relief from the judiciary as propagated by the Petitioner.
xii. Article 79 of the Constitution provides for the establishment of an independent ethics and anti-corruption commission with the status and powers of a commission under chapter fifteen for purposes of ensuring compliance with and enforcement of the provisions of chapter six of the constitution, this Court cannot therefore assume primary responsibility in lieu of the constitutional repository of the function as proposed by the Petitioner.
xiii. The Petitioner has failed to plead and prove any specific infraction of the constitution by the 5 th Respondent that would serve to bar the 5 th Respondent from being appointed as Director General of the National Intelligence Service, the Petitioner is improperly seeking to take over and canvass unresolved complaints by parties who despite full knowledge of the appointment process of the 5 th Respondent into office deliberately elected not to urge the same.
xiv. The petition is premised on inadmissible evidence as the same is sought to be adduced contrary to the provisions of sections 106A and 106B of the Evidence Act.
xv. The Petition is based on evidence that is not original to the Petitioner, therefore hearsay and inadmissible.
2 nd and 3 rd Respondents’ Case
20. These Respondents filed their Replying Affidavit through the Clerk of the 3 rd Respondent, Samuel Njoroge sworn on 18 th July 2023. He stated that following the nomination of the 5 th Respondent through the Notification of Presidential Action dated 18 th May 2023, the matter was transmitted to the House pursuant to Section 7(2) of the NIS Act and Section 5 (1) of the Public Appointments (Parliamentary Approval) Act.
21. Thereafter, on 20 th May 2023, the National Assembly pursuant to Article 118 of the Constitution and Section 6(4) of the Public Appointments (Parliamentary Approval) Act invited the public to give its views, comments and memoranda on the 5 th Respondent’s nomination by 29 th May 2023. In this regard, the 2 nd Respondent received 26 memoranda including one by the Petitioner. 22 of these were in favour of the 5 th Respondent’s nomination while the rest against it.
22. He further depones that, the 3 rd Respondent wrote to the Kenya Revenue Authority (KRA), the Ethics and Anti -Corruption Commission (EACC), the Directorate of Criminal Investigations (DCI), the Higher Education Loans Board (HELB) and the Office of the Registrar of political Parties (ORPP), seeking reference and background checks for the 5 th Respondent. It is noted that these organs in their responses cleared the 5 th Respondent for appointment. Related to this, he avers that the 3 rd Respondent’s is not legally required to seek clearance from the 4 th Respondent.
23. He depones that the 5 th Respondent was invited on 23 rd May 2023 to appear before the 2 nd Respondent for a hearing. The hearing was conducted on 30 th May 2023 and by the 5 th Respondent request, the hearing was not done in public. He stated that the 5 th Respondent’s suitability was based on the criteria set out under Section 7 of the Public Appointments (Parliamentary Approval) Act and the constitutional requirements.
24. In the end, the 2 nd Respondent determined that the 5 th Respondent had met the requisite requirements for appointment as the Director General and made the recommendation to the 3 rd Respondent. This Report was tabled before the House on 6 th June 2023. The National Assembly approved his nomination on 13 th June 2023 and gazetted the same vide Notice No.7688.He was sworn in as the Director General of the NIS the following day.
25. In light of this, it is asserted that these Respondents adhered to the constitutional and statutory requirements in the appointment of the 5 th Respondent.
4 th Respondent’s Case
26. In reply, the 4 th Respondent through its Chief Executive Officer, Simon K. Rotich filed a Replying Affidavit sworn on 22 nd June 2023.
27. He confirms that the 4 th Respondent’s authority with regard to removal from office of a person holding the office of the Director of Public Prosecutions is provided under Article 158(2) and (3) of the Constitution. Tied to this, he deponed that the 4 th Respondent in 2021 received two petitions seeking the removal of the 5 th Respondent as the Director of Public Prosecutions (DPP).
28. However, the 5 th Respondent filed Nairobi HCCHR Misc. Petition No. E037 of 2021 and obtained orders halting the 4 th Respondent going on with the further consideration of the petitions. The suit had not been determined at the time of swearing this affidavit.
29. He depones that almost the same time, the 4 th Respondent received further 8 petitions seeking the removal of the 5 th Respondent from office. He notes however that 6 of these petitions had been withdrawn prior to the nomination of the 5 th Respondent for appointment as the Director General of the NIS.
30. He further makes known that soon after the 5 th Respondent’s nomination, the 4 th Respondent received 2 additional petitions seeking his removal as the DPP. The 4 th Respondent was however not able to consider these petitions owing to the existing Court order.
31. He stated that since the 4 th Respondent never finalized consideration of the petitions, it was not able to provide a Report to the 3 rd Respondent through the 2 nd Respondent during the 5 th Respondent’s vetting. He avers nonetheless giving such a Report would have been prejudicial to the 5 th Respondent as it would have amounted to condemning him without a hearing in violation of Article 47 of the Constitution.
32. He adds that the same would have also been in violation of Article 158 (3) of the Constitution which only permits issuance of a Report to the President once the 4 th Respondent is satisfied that a ground under clause (1) is existent. For this reason, he asserts that the 4 th Respondent was not under any obligation to inform the 3 rd Respondent of the pending petitions against the 5 th Respondent. He as such argues that the Petition lacks merit and hence should be dismissed with costs.
5 th Respondent’s Case
33. In response, the 5 th Respondent filed his Replying affidavit sworn on 8 th July 2023. On preliminary note, the 5 th Respondent asserts that the Petition fails to meet the constitutional threshold of Petitions as set out in Anarita Karimi Njeru v Republic (1979) eKLR and reaffirmed in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR . This is because it does not provide the particulars of the alleged complaints against him and the manner in which he violated the specified provisions.
34. The 5 th Respondent further asserts that the Petitioner has failed to discharge the burden of proof as required under Section 107(1), 109 and 112 of the Evidence Act for grant of the interlocutory orders. He also cited inter alia the case of Commission for Human Rights and Justice v Torrut & 5 others (Petition E024 of 2021) [2022] KEHC 11931 (KLR) that addressed the question of standard of proof.
35. Further, he contended that the Petitioner did not provide proof to support the claim of non - compliance with Chapter six of the Constitution other than making general allegations based on hearsay and false information. He argued that the Petitioner filed this matter with an ulterior motive to tarnish his reputation and termed the Petitioner’s case as frivolous and vexatious.
36. In answer to the Petitioner that there were pending Petitions for his removal at the 4 th Respondent that question the exercise of his mandate when held the office of the DPP, the 5 th Respondent asserted that the decision to withdraw cases in the year 2021/2022 was in line with the Constitution and discretion given under Article 157(8) of the Constitution, hence his actions and conduct as the DPP were in line with the law and the Constitution. He thus argued that withdrawal of cases as cannot constitute a ground for removal of the DPP from office nor does it support the claim for incompetence or lack of integrity.
37. He pointed out that the Petitioner’s complaint against him ought to have been lodged in the right forum yet this was not done. He in the same way prior to filing of this Petition did not lodge any complaint with the 5 th Respondent during his tenure as the DPP. He for this reason, he urged the Court to dismiss this Petition with costs.
Petitioner’s Submissions
38. The Petitioner filed submissions dated 31 st January 2025.
39. He maintained that the 5 th Respondent was not eligible for nomination, approval and appointment to the office of Director General - NIS. He reiterated that it is clear that at the dates of the nomination, approval, appointment and assumption to the office, the 5 th Respondent was subject of at least 6 unresolved petitions seeking his removal as DPP before the 4 th Respondent, filed in line with Article 158 of the Constitution.
40. The Petitioner further argued that Section 4(4), National Intelligence Service (NIS) Act, imposes an explicit, mandatory duty on the President and the 3 rd Respondent to observe the provisions of Article 73(2)(a) of the Constitution, in appointing a person to the office of Director General - NIS. He argued that despite the constitutional and statutory requirements, the President and the 3 rd Respondent, nominated, approved for appointment and appointed, the 5 th Respondent to the office of the Director General – NIS.
41. The Petitioner contended that in exercising the powers donated by Articles 124(4), 132(2)(f) and 242 of the Constitution, Section 7, NIS Act and the Public Appointments (Parliamentary Approval) Act, the Respondents were under a duty to uphold and protect the Constitution, which they failed to do. In failing to do so, the Petitioner argued that the Respondents unlawfully exercised the powers donated to them under the Constitution thereby subverting and destroying the effect and operation of other the constitutional provisions.
42. The Petitioner relying in Law Society of Kenya v Attorney General & another [2021] eKLR submitted that the Constitution must be read and interpreted holistically, with each provision sustaining the others and none destroying the others. Further reliance was placed on Robert Alai v Attorney General & another [2017] eKLR .
43. The Petitioner further faulted the Petitioner’s nomination as a State Officer yet was required to be subjected to a fair competition and be selected on merit. He argued that, instead, his selection was at the behest of the President. The Petitioner submitted that this was contrary to the explicit requirements of Article 73(2)(a) of the Constitution as read with Section 4(4), NIS Act.
44. The Petitioner also submitted that the 4 th Respondent in HCCHRPET MISC. No. E037 of 2021 informed the Court that it was desirous to consider the petitions received under Article 158 of the Constitution. He argued that the Respondents’ deliberate actions of nonetheless nominating, approving and appointing the 5 th Respondent as Director General - NIS, rendered this process moot thus their actions unconstitutional, null and void. On this premise, the Petitioner emphasized that the 5 th Respondent was not eligible for the office.
45. The 3 rd Respondent is faulted for taking into account irrelevant information and factors concerning the 5 th Respondent’s suitability for appointment to the office while failing to consider relevant information such as the pending petitions. He stresses that this was not in line with the compliance requirements under Section 4(4) NIS Act. The Petitioner asserted that it is trite law that where a decision-maker takes into account irrelevant considerations in making a decision or fails to take into account relevant considerations in that process, the resulting decision is irrational and, hence, unconstitutional, null and void as held in Democratic Alliance – v – The President of the Republic of South Africa & 3 Others (Case CCT 122/11 [2012] ZACC 24) .
46. Additional reliance was placed on Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others; Bhatia (Amicus Curiae) (Petition E031, E032 & E033 of 2024 (Consolidated)) [2024] KESC 63 (KLR) and Okoiti v Attorney General & 3 others; Sugut & 6 others (Interested Parties) (Petition E104 of 2023) [2024] KEHC 15701 (KLR) .
47. According to the Petitioner, the 3 rd Respondent failed to adhere to the constitutional requirements that govern public participation as mandated by Articles 10(2)(a) and 118(1)(b) of the Constitution in relation to public participation. In his view, the 3 rd Respondent through the 2 nd Respondent did not undertake adequate public participation when it approved the 5 th Respondent for appointment. The Petitioner alleged that the 3 rd Respondent adopted the recommendation without any further interrogations thus misdirecting itself. To this end, the Petitioner argued that he had substantiated his case against the Respondents in relation to the 5 th Respondent’s nomination and eventual appointment as the Director General – NIS.
1 st Respondent’s Submissions
48. On 18/2/2025, the 1 st Respondent was represented by Mr. Marwa who was holding brief for Mr. E. Bita. He informed this Court the 1 st Respondent filed submissions dated 3/4/2025. The Court directed Counsel to re-upload the submissions on the CTS as at that point, it could not access them on the CTS. The Court stated thus:
“The 1 st Respondent to re-upload its submissions and serve the Petitioner”
49. On 7/7/2025, Mr. E. Bita for the 1 st Respondent informed the Court he had re-uploaded the 1 st Respondent submissions and reserved all the parties. However, despite this, the Court could not locate the 1 st Respondent’s submissions on the Court online portal (CTS) or physically in the Court file at the point of writing this judgment.
2 nd and 3 rd Respondents’ Submissions
50. The 2 nd and 3 rd Respondents through Counsel Emacar Andrew filed submissions dated 11 th October 2023. He attacked the Petition stating that it does not meet the threshold set out in Anarita Karimi Njeru Case (supra).
51. He submitted that this Court’s jurisdiction is limited to an interrogation of whether the Constitution and the law was complied with. Reliance was placed in Pevans East Africa Limited & another v. Chairman, Betting Control and Licensing Board and 7 Others (2013) eKLR where the Court of Appeal held that:
“Courts must decline to intervene at will in the Constitutionals spheres of other organs, particularly when they are invited to substitute their
[...truncated]