INTRODUCTION
1. What is before this court for determination is the consolidated Petitions herein, instituted by the 1 st Petitioner, Francis Awino, and the 2 nd Petitioner, Patrick Njuguna, together with a pending Notice of Motion, challenging the constitutional and statutory validity of the appointment of Honourable Aisha Jumwa Katana as the Chairperson of the Kenya Roads Board through Gazette Notice No. 395 of 17th January 2025. The Petitioners, invoking Articles 22 and 258 of the Constitution, bring these proceedings in public interest, contending that the impugned appointment is unlawful, ultra vires the Kenya Roads Board Act, No. 7 of 1999, and in breach of the Constitution of Kenya, 2010.
2. The dispute arises within the statutory framework governing the composition and appointment of the Kenya Roads Board, established under section 7 of the Act, read together with the First Schedule. The Petitioners, supported in material respects by the 1 st Interested Party, the Institution of Engineers of Kenya, contend that the Act establishes a mandatory and sequential appointment process requiring nomination by designated professional and stakeholder bodies, appointment of members from such nominations under section 7(1)(h), and thereafter appointment of the Chairperson by the President strictly from among those duly appointed members pursuant to section 7(1)(a). It is the Petitioners’ case that the Respondent was neither nominated by nor drawn from the statutorily recognised bodies, thereby rendering both her appointment as a Board member and subsequent elevation to Chairperson procedurally and substantively defective.
3. It is further alleged that the impugned appointment was undertaken in disregard of constitutional imperatives under Articles 10, 47, 73, and 232 of the Constitution, particularly the principles of transparency, public participation, meritocracy, fair administrative action, and adherence to the rule of law. The Petitioners maintain that the exclusion of the designated nominating bodies from the process, coupled with the absence of verifiable compliance with statutory procedure, vitiates the legality of the appointment ab initio .
4. The 1 st Interested Party, the Institution of Engineers of Kenya, reinforces the Petitioners’ case, asserting that it is a statutory nominating body under the First Schedule to the Act whose participation in the appointment process was unlawfully excluded. It contends that no lawful nomination process was undertaken, that Gazette Notice No. 384 of 16 th January 2025 unlawfully appointed the Respondent as a Board member absent nomination, and that the subsequent appointment as Chairperson was consequently void. The 1 st Interested Party further invokes Articles 10, 47, and 232 of the Constitution, contending that the process was opaque, non-competitive, and in breach of mandatory statutory safeguards, and urges the Court to invalidate the impugned appointment and compel a fresh, lawful process.
5. The Respondents, on the other hand, defend the appointment as lawful and procedurally compliant, contending that the Respondent was duly nominated by the Kenya Transporters Association, appointed as a Board member under section 7(1)(h), and thereafter lawfully appointed Chairperson by the President under section 7(1)(a). They further dispute the alleged constitutional and statutory breaches, asserting that the Petitioners have failed to meet the threshold for constitutional litigation or discharge the burden of proof.
6. Accordingly, the central questions for determination before this Honourable Court concern the constitutionality and legality of the appointment process, compliance with the statutory nomination framework under the Kenya Roads Board Act, adherence to constitutional principles governing public appointments, and the appropriate remedies, if any, arising from the impugned Gazette Notices and related administrative actions.
THE PETITIONERS’ CASE
7. The Petitioners’ case, as advanced in the consolidated Petitions is anchored on a challenge to the constitutional and statutory validity of the appointment of the 1 st Respondent, Honourable Aisha Jumwa Katana, as Chairperson of the Kenya Roads Board through Gazette Notice No. 395 dated 17 th January 2025. The Petitioners, acting in their asserted capacities as citizens and public interest litigants pursuant to Articles 22 and 258 of the Constitution, contend that the impugned appointment is constitutionally infirm, statutorily ultra vires, and void ab initio .
8. It is the Petitioners’ central position that the appointment was undertaken in flagrant disregard of the mandatory framework prescribed under section 7 of the Kenya Roads Board Act, No. 7 of 1999, read together with the First Schedule thereto. They submit that the statutory scheme establishes a structured and sequential process governing appointments to the Board, beginning with nomination by designated professional and stakeholder bodies, followed by appointment of members under section 7(1)(h) by the Cabinet Secretary, and culminating in the appointment of the Chairperson by the President strictly from among persons duly appointed as members under that provision. According to the Petitioners, this statutory architecture is not merely directory but mandatory, and any deviation therefrom renders the resultant appointment unlawful.
9. The Petitioners further contend that the First Schedule to the Act circumscribes the lawful nominating entities to specific professional and stakeholder bodies, namely the Institution of Engineers of Kenya, the Automobile Association of Kenya, the Kenya Association of Manufacturers, the Institute of Certified Public Accountants of Kenya, and the Kenya Transport Association. It is their case that the 1st Respondent neither belongs to nor was nominated by any of the said bodies, and therefore fell outside the statutory pool from which a Board member and, by extension, the Chairperson could lawfully be drawn. On this basis, they impugn both Gazette Notice No. 384 of 16 th January 2025, appointing her as a Board member, and Gazette Notice No. 395 of 17 th January 2025, appointing her as Chairperson.
10. In addition, the Petitioners allege that the statutory nomination process was wholly bypassed, with no evidence that the designated bodies were invited to submit nominees or that any competitive or consultative process was undertaken as contemplated under the Act. They argue that this omission constitutes a fundamental procedural defect that vitiates the entire appointment process. They further invoke the exclusion of the Institution of Engineers of Kenya as particularly significant, contending that it deprived the process of essential technical input required for an institution whose mandate is inherently technical in nature.
11. Substantively, the Petitioners submit that the Kenya Roads Board, by its statutory mandate, is entrusted with the oversight of road development, maintenance, and infrastructure management, functions which demand high-level technical competence and professional oversight. They therefore contend that the office of Chairperson ought, by necessity, to be occupied by a person with demonstrable expertise in engineering or related technical disciplines to ensure fidelity to professional standards and effective governance of public infrastructure systems. In support of this assertion, they rely on the position of the 1 st Interested Party, which questions the suitability and technical competence of the 1 st Respondent for the role.
12. The Petitioners further aver that the appointment process was undertaken in a manner that was opaque, exclusionary, and inconsistent with constitutional values, and was in any event politically motivated rather than merit-based. They contend that the process undermines the constitutional principles of transparency, accountability, integrity, and meritocracy in public appointments, and sets a dangerous precedent for disregard of statutory safeguards governing appointments to public office.
13. On the evidentiary plane, the 2 nd Petitioner depones that the appointment was effected in two stages, first through Gazette Notice No. 384 appointing the 1 st Respondent as a member of the Board, and subsequently through Gazette Notice No. 395 elevating her to Chairperson. He further avers that inquiries made of the relevant professional bodies revealed that the 1 st Respondent was not a member of most of them, thereby casting doubt on her eligibility within the statutory framework. He also asserts that the exclusion of the statutory nominating bodies gave rise to a legitimate expectation of participation which was frustrated by the appointing authority.
14. On this foundation, the Petitioners submit that the impugned appointment violates multiple constitutional provisions, including Articles 1, 2, 3, 10, 21, 27, 47, 73, 159(2)(e), and 232 of the Constitution. They argue that the appointment offends the principles of constitutional supremacy, the rule of law, good governance, public participation, equality, fair administrative action, and merit-based public service.
15. In support of their case, the Petitioners place reliance on a body of jurisprudence emphasising strict adherence to statutory procedure and constitutional values in public appointments, including Speaker of the National Assembly v Karume, Communications Commission of Kenya v Royal Media Services, Republic v County Government of Mombasa ex parte Outdoor Advertising Association of Kenya, Judicial Service Commission v Mbalu Mutava, Trusted Society of Human Rights Alliance v Attorney General , and Mumo Matemu v Trusted Society of Human Rights Alliance . They also invoke the principle in Macfoy v United Africa Co Ltd that a void act is incurably defective and incapable of legal validation.
16. Taken holistically, the Petitioners’ case is that the appointment process was fundamentally defective for want of compliance with a mandatory statutory framework, was undertaken in violation of constitutional norms governing public appointments, and is therefore incapable of legal sustenance. They accordingly urge the Court to intervene to nullify the impugned appointment and restore fidelity to the Constitution and the Kenya Roads Board Act through a fresh, lawful, and procedurally compliant appointment process.
17. On the basis of the foregoing, the Petitioners seek, inter alia:
i. A declaration that the appointment of the 1 st Respondent as Chairperson of the Kenya Roads Board is unconstitutional, illegal, null and void.
ii. An order of certiorari quashing Gazette Notice No. 384 dated 16 January 2025 and Gazette Notice No. 395 dated 17 January 2025.
iii. A declaration that any decisions made by the 1 st Respondent in her capacity as Chairperson of the Kenya Roads Board are null and void.
iv. An order prohibiting the 1st Respondent from assuming or exercising the powers and functions of the office of Chairperson of the Kenya Roads Board.
v. An order directing the appointing authority to undertake a fresh appointment process in strict conformity with the Constitution and the Kenya Roads Board Act.
vi. A declaration that the failure to adhere to the prescribed appointment process violates the Constitution and the statutory provisions governing public appointments.
vii. Such further or other relief as the Court may deem just and appropriate, including costs of the Petitions.
THE 1 ST RESPONDENT’S CASE
18. The 1 st Respondent, Honourable Aisha Jumwa Katana, opposes the consolidated Petitions and maintains that they are misconceived, vexatious, politically motivated, and amount to an abuse of the Court process. She further submits that the Petitions fail the constitutional threshold of precision in pleading as set out in Anarita Karimi Njeru v Republic , for want of reasonable particularity of the alleged constitutional violations and the manner in which they are said to have occurred.
19. It is the 1 st Respondent’s position that her appointment as the non-executive Chairperson of the Kenya Roads Board was lawfully made by the President pursuant to Section 7(1)(a) of the Kenya Roads Board Act, following due appointment as a member of the Board under Section 7(1)(h) of the Act.
20. The 1 st Respondent submits that the appointment process strictly complied with the statutory framework under Section 7 of the Kenya Roads Board Act and the First Schedule thereto. In particular, she was nominated by the Kenya Transport Association, a body listed in the First Schedule, and subsequently appointed as a member of the Board by the Cabinet Secretary before elevation to Chairperson by the President.
21. On statutory qualifications, the 1 st Respondent submits that Section 7(3) of the Act prescribes only minimum qualifications for persons appointed under Section 7(1)(h), namely a Kenya Certificate of Secondary Education or equivalent qualification and at least ten years’ relevant practical experience. It is contended that the Act does not impose any requirement for engineering or profession-specific qualifications for appointment as Chairperson.
22. The 1 st Respondent further submits that she meets the statutory threshold through her academic background and extensive public service experience in various leadership positions. It is contended that such experience constitutes “practical experience” within the meaning of the Act and adequately qualifies her for the office.
23. She further submits that the Kenya Roads Board Act establishes a multi-sectoral governance structure drawn from diverse stakeholder organisations under the First Schedule, and does not restrict eligibility for appointment as Chairperson to any particular professional discipline or body.
24. The 1 st Respondent contends that the Petitioners have failed to establish any specific violation of the Constitution. The allegations are said to be generalised, unparticularised, and unsupported by evidence, and no breach of Articles 2, 3, 10, 21, 27, 47, 73, 159, 161, or 232 has been demonstrated.
25. It is further submitted that the Petitioners have not discharged the evidentiary burden in constitutional litigation and have failed to demonstrate illegality, irrationality, procedural impropriety, or unreasonableness in the impugned appointment.
26. On reliefs, the 1 st Respondent submits that the Court should exercise restraint in reviewing constitutionally and statutorily mandated executive appointments and avoid substituting its discretion for that of the appointing authority.
27. It is further submitted that the Petitioners have not established a prima facie case to warrant conservatory relief, and that the application is in any event overtaken by events.
28. The 1 st Respondent therefore urges the Court to dismiss the consolidated Petitions and the interlocutory applications with costs.
THE 2 ND RESPONDENT’S CASE
29. The 2 nd Respondent, the Kenya Roads Board, opposes the consolidated Petitions through affidavits filed on its behalf, and maintains that the appointment of the 1st Respondent was lawful, procedural, and in strict compliance with the Constitution and the Kenya Roads Board Act.
30. The 2 nd Respondent submits that the Board is established under Section 4 of the Act as a body corporate mandated to oversee, coordinate, and advise on the development and maintenance of the national road network. It further submits that Section 7(1)(a) vests the President with authority to appoint the non-executive Chairperson from among members appointed under Section 7(1)(h), while Section 7(1)(h) provides for appointment of members nominated by organisations listed in the First Schedule. The said organisations include the Institution of Engineers of Kenya, the Automobile Association of Kenya, the Kenya Association of Manufacturers, the Institute of Certified Public Accountants of Kenya, and the Kenya Transport Association.
31. The 2 nd Respondent submits that the 1 st Respondent was duly nominated by the Kenya Transport Association, appointed as a member of the Board by the Cabinet Secretary under Section 7(1)(h), and thereafter appointed as Chairperson by the President under Section 7(1)(a) through Gazette Notice No. 395 of 17 January 2025.
32. It is the 2 nd Respondent’s case that the statutory process was fully complied with, and that the law does not require simultaneous consultation of all First Schedule organisations, but only that nominations be received from the designated bodies before appointment is made.
33. The 2 nd Respondent further submits that the Kenya Roads Board Act does not impose any requirement that the Chairperson possess engineering or technical qualifications, nor that such office be drawn from any specific professional body. The statutory scheme is said to contemplate multi-sectoral representation rather than professional exclusivity.
34. It is further submitted that the 1 st Respondent meets the statutory requirements under Section 7(3) of the Act, having the requisite academic qualifications and extensive public service experience spanning more than ten years in leadership positions at national level.
35. The 2 nd Respondent challenges the evidentiary basis of the Petitioners’ allegations, particularly claims relating to membership status in professional bodies, which it submits are based on unverified and unauthenticated material.
36. It further submits that the consolidated Petitions fail to meet the constitutional threshold of precision as articulated in Anarita Karimi Njeru v Republic and Mumo Matemu v Trusted Society of Human Rights Alliance , as they contain generalized allegations without specific proof of constitutional violations or injury.
37. The 2 nd Respondent submits that the application for conservatory relief has been overtaken by events, the 1 st Respondent having already assumed office pursuant to the impugned Gazette Notice, and in any event no prima facie case has been established.
38. The 2 nd Respondent further urges the Court to exercise restraint in interfering with statutory appointments undertaken by constitutionally mandated organs and cautions against granting orders that would amount to rewriting the statutory framework governing the Kenya Roads Board.
39. The 2 nd Respondent thus prays that the consolidated Petitions be dismissed with costs.
THE 3 RD RESPONDENT’S CASE
40. The 3 rd Respondent opposes the consolidated Petitions and urges the Court to dismiss the same in their entirety for want of merit. It is its position that the impugned appointment of Honourable Aisha Jumwa Katana as Chairperson of the Kenya Roads Board was lawfully and validly undertaken by the President pursuant to Section 7(1)(a) of the Kenya Roads Board Act, and that the process was at all material times anchored in a proper statutory and constitutional framework.
41. The 3 rd Respondent submits that the appointee was duly nominated and appointed within the meaning of Section 7(1)(h) and Section 7(3) of the Act. It contends that the statutory scheme only requires nomination by one of the organisations listed in the First Schedule, followed by appointment by the Cabinet Secretary as a member, and thereafter appointment by the President as Chairperson from among such members. It is further submitted that the Act does not impose any additional professional or technical qualifications beyond the express statutory threshold of possession of a Kenya Certificate of Secondary Education or its equivalent, together with at least ten years’ practical experience. On this basis, it is contended that the 1 st Respondent satisfies the statutory criteria by virtue of her academic background and extensive public service experience, which properly constitutes “practical experience” within the meaning of the Act.
42. The 3 rd Respondent further submits that the Petitioners have failed to demonstrate any violation of constitutional rights attributable to it, and that the pleadings do not meet the constitutional threshold of reasonable precision as articulated in Anarita Karimi Njeru v Republic and reaffirmed in Mumo Matemu v Trusted Society of Human Rights Alliance . It is argued that the Petition is founded on generalized and sweeping allegations devoid of specific factual particulars capable of sustaining constitutional scrutiny. It is further contended that the Petition offends Sections 107 and 109 of the Evidence Act, as the Petitioners have failed to discharge the evidentiary burden of proof, consistent with the principle in Lt. Col. Peter Ngari Kagume v Attorney General .
43. On constitutional interpretation, the 3 rd Respondent relies on Attorney General v Law Society of Kenya & 4 Others to submit that presidential appointment powers under Article 132 of the Constitution are constitutionally sanctioned executive functions. It is further contended that the rights alleged to have been infringed are, in any event, not absolute and may be lawfully limited under Article 24 of the Constitution, and that no non-derogable rights under Article 25 have been implicated in the circumstances of this case.
44. The 3 rd Respondent further rejects the contention that engineering or technical qualifications constitute a legal prerequisite for appointment as Chairperson of the Kenya Roads Board. It submits that neither the Constitution nor the Kenya Roads Board Act imposes such a requirement, and that to import such conditions would amount to rewriting clear statutory provisions. It reiterates that the governing legal framework only requires nomination by designated bodies and satisfaction of the basic statutory academic and experiential thresholds.
45. On the question of reliefs, the 3 rd Respondent submits that the Petitioners have failed to establish any constitutional or statutory breach capable of warranting judicial intervention. It contends that the allegations raised amount to unsubstantiated challenges to the merits of an executive appointment, rather than demonstrable violations of law or rights. Accordingly, it urges the Court to find that the Petitions lack both evidential and legal foundation, constitute an abuse of the court process, and ought to be dismissed with costs. It further submits that, being framed as public interest litigation, no basis has been laid for an adverse costs order against the 3 rd Respondent.
46. The 3 rd Respondent maintains that the impugned appointment was lawful, procedurally proper, and constitutionally compliant, and that the Petitioners have failed to discharge the burden of proof or establish any basis for the Court’s interference with the decision of the appointing authority.
THE 1 ST INTERESTED PARTY’S CASE
47. The Institution of Engineers of Kenya (IEK), the 1 st Interested Party, opposes the appointment of Hon. Aisha Jumwa Katana as the Non-Executive Chairperson of the Kenya Roads Board through Gazette Notice No. 395 of 17 January 2025, contending that the same is unconstitutional, unlawful, ultra vires the Kenya Roads Board Act, and therefore void ab initio .
48. IEK’s case is anchored on its status as one of the professional bodies expressly designated under the First Schedule to the Kenya Roads Board Act, 1999, which collectively constitute the statutory pool from which members of the Board are to be nominated under Section 7(1)(h) of the Act. It is its position that the statutory scheme establishes a mandatory and sequential appointment process comprising nomination by the designated bodies, appointment of members by the Cabinet Secretary, and thereafter appointment of the Chairperson by the President strictly from among such duly appointed members under Section 7(1)(a).
49. IEK contends that this statutory framework was fundamentally breached. It asserts that no lawful nomination process was undertaken or initiated by the designated bodies listed under the First Schedule, including itself, the Kenya Association of Manufacturers, the Institute of Certified Public Accountants of Kenya, and other stakeholder organisations. According to IEK, the exclusion of these bodies from the process amounts to a material procedural defect that vitiates the entire appointment process at its inception.
50. It is further IEK’s case that Gazette Notice No. 384 of 16 January 2025, which appointed the 1 st Respondent as a member of the Board, was issued absent any valid nomination from a First Schedule body, and consequently, the subsequent appointment as Chairperson through Gazette Notice No. 395 of 17 January 2025 was anchored on an unlawful foundation. IEK maintains that the statutory precondition of lawful nomination was not satisfied, and the 1 st Respondent therefore did not fall within the lawful pool of eligible persons contemplated under Section 7(1)(a) and (h) of the Act.
51. On the constitutional plane, IEK submits that the impugned appointment offends the national values and principles of governance under Article 10 of the Constitution, particularly public participation, inclusivity, transparency, accountability, and the rule of law. It further contends that the exclusion of statutory stakeholder bodies from the appointment process amounts to procedural unfairness in violation of Article 47 on fair administrative action, as the affected bodies were neither consulted nor afforded an opportunity to participate in a process in which they are expressly entrenched by statute.
52. IEK also invokes Article 232 of the Constitution, arguing that the appointment contravenes the principles of merit, fair competition, transparency, and representativeness in public appointments. It maintains that the process was opaque, non-competitive, and inconsistent with a constitutionally compliant selection mechanism for leadership of a public statutory body entrusted with significant infrastructural and financial responsibilities.
53. Substantively, IEK argues that the Kenya Roads Board, by its mandate under the Act, requires leadership with demonstrable technical competence in engineering and allied disciplines, given its oversight over national road infrastructure and the Road Maintenance Levy Fund. It contends that the statutory design of the Board, as reflected in the First Schedule, underscores the centrality of technical expertise, and that historical practice has consistently reflected such professional orientation in leadership appointments.
54. In support of its position, IEK relies on a line of judicial authority emphasizing strict compliance with statutory procedures and the consequences of deviation therefrom, including Judicial Service Commission v Gladys Boss Shollei [2014] eKLR, Communications Commission of Kenya v Royal Media Services [2014] eKLR, Meru County Government v Ethics and Anti-Corruption Commission [2020] eKLR , and Trusted Society of Human Rights Alliance v Attorney General [2012] eKLR. It also relies on Republic v Public Service Commission ex parte Geoffrey Mwangi [2015] eKLR for the proposition that exclusion of mandatory stakeholders and breach of prescribed procedure renders administrative action null and void.
55. On relief, IEK urges the Court to find that the appointment is a nullity for non-compliance with mandatory statutory and constitutional requirements. It seeks declaratory relief invalidating Gazette Notice No. 384 of 16 January 2025 and Gazette Notice No. 395 of 17 January 2025, orders of certiorari quashing the impugned appointments, and an order of prohibition restraining the 1 st Respondent from assuming or continuing to hold office. IEK further prays for a mandatory order directing a fresh appointment process strictly compliant with the Constitution and the Kenya Roads Board Act, undertaken with full participation of all First Schedule bodies.
56. In addition, IEK invokes the remedy of quo warranto under Article 23(3)(d) of the Constitution, contending that the 1 st Respondent is unlawfully occupying a public office without lawful authority, and that IEK, as a statutory stakeholder and nominating body, has standing to challenge such occupation in the public interest.
57. The 1 st Interested Party, IEK characterises the impugned appointment as a fundamental departure from the statutory architecture governing the Kenya Roads Board and a violation of constitutional governance standards. It therefore urges the Court to intervene to restore legality, uphold the rule of law, and safeguard the integrity of public appointments within the statutory framework.
ANALYSIS AND DETERMINATION
58. Having carefully considered the pleadings, affidavits, rival submissions of counsel, and the applicable constitutional and statutory framework, together with the authorities cited by the parties, the Court is of the considered view that the dispute before it turns on four narrow but fundamental questions of law and fact which go to the legality and constitutional propriety of the impugned appointment. The issues, that commend themselves for determination as follows:
i. Whether the consolidated Petition meets threshold question of constitutional pleadings
ii. Whether the appointment of Honourable Aisha Jumwa Katana as Chairperson of the Kenya Roads Board complied with the mandatory requirements of Section 7 of the Kenya Roads Board Act, No. 7 of 1999.
iii. Whether the said appointment, irrespective of its statutory compliance or otherwise, offended the Constitution of Kenya, 2010.
iv. Whether the Petitioners are entitled to the reliefs sought in the consolidated Petitions, and if so, the nature and extent of such reliefs as may properly issue from this Court.
Whether the consolidated Petition meets the threshold of constitutional pleadings
59. The Respondents contend that the consolidated Petition is fatally defective for want of precision. It i
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1. What is before this court for determination is the consolidated Petitions herein, instituted by the 1 st Petitioner, Francis Awino, and the 2 nd Petitioner, Patrick Njuguna, together with a pending Notice of Motion, challenging the constitutional and statutory validity of the appointment of Honourable Aisha Jumwa Katana as the Chairperson of the Kenya Roads Board through Gazette Notice No. 395 of 17th January 2025. The Petitioners, invoking Articles 22 and 258 of the Constitution, bring these proceedings in public interest, contending that the impugned appointment is unlawful, ultra vires the Kenya Roads Board Act, No. 7 of 1999, and in breach of the Constitution of Kenya, 2010.
2. The dispute arises within the statutory framework governing the composition and appointment of the Kenya Roads Board, established under section 7 of the Act, read together with the First Schedule. The Petitioners, supported in material respects by the 1 st Interested Party, the Institution of Engineers of Kenya, contend that the Act establishes a mandatory and sequential appointment process requiring nomination by designated professional and stakeholder bodies, appointment of members from such nominations under section 7(1)(h), and thereafter appointment of the Chairperson by the President strictly from among those duly appointed members pursuant to section 7(1)(a). It is the Petitioners’ case that the Respondent was neither nominated by nor drawn from the statutorily recognised bodies, thereby rendering both her appointment as a Board member and subsequent elevation to Chairperson procedurally and substantively defective.
3. It is further alleged that the impugned appointment was undertaken in disregard of constitutional imperatives under Articles 10, 47, 73, and 232 of the Constitution, particularly the principles of transparency, public participation, meritocracy, fair administrative action, and adherence to the rule of law. The Petitioners maintain that the exclusion of the designated nominating bodies from the process, coupled with the absence of verifiable compliance with statutory procedure, vitiates the legality of the appointment ab initio .
4. The 1 st Interested Party, the Institution of Engineers of Kenya, reinforces the Petitioners’ case, asserting that it is a statutory nominating body under the First Schedule to the Act whose participation in the appointment process was unlawfully excluded. It contends that no lawful nomination process was undertaken, that Gazette Notice No. 384 of 16 th January 2025 unlawfully appointed the Respondent as a Board member absent nomination, and that the subsequent appointment as Chairperson was consequently void. The 1 st Interested Party further invokes Articles 10, 47, and 232 of the Constitution, contending that the process was opaque, non-competitive, and in breach of mandatory statutory safeguards, and urges the Court to invalidate the impugned appointment and compel a fresh, lawful process.
5. The Respondents, on the other hand, defend the appointment as lawful and procedurally compliant, contending that the Respondent was duly nominated by the Kenya Transporters Association, appointed as a Board member under section 7(1)(h), and thereafter lawfully appointed Chairperson by the President under section 7(1)(a). They further dispute the alleged constitutional and statutory breaches, asserting that the Petitioners have failed to meet the threshold for constitutional litigation or discharge the burden of proof.
6. Accordingly, the central questions for determination before this Honourable Court concern the constitutionality and legality of the appointment process, compliance with the statutory nomination framework under the Kenya Roads Board Act, adherence to constitutional principles governing public appointments, and the appropriate remedies, if any, arising from the impugned Gazette Notices and related administrative actions.
THE PETITIONERS’ CASE
7. The Petitioners’ case, as advanced in the consolidated Petitions is anchored on a challenge to the constitutional and statutory validity of the appointment of the 1 st Respondent, Honourable Aisha Jumwa Katana, as Chairperson of the Kenya Roads Board through Gazette Notice No. 395 dated 17 th January 2025. The Petitioners, acting in their asserted capacities as citizens and public interest litigants pursuant to Articles 22 and 258 of the Constitution, contend that the impugned appointment is constitutionally infirm, statutorily ultra vires, and void ab initio .
8. It is the Petitioners’ central position that the appointment was undertaken in flagrant disregard of the mandatory framework prescribed under section 7 of the Kenya Roads Board Act, No. 7 of 1999, read together with the First Schedule thereto. They submit that the statutory scheme establishes a structured and sequential process governing appointments to the Board, beginning with nomination by designated professional and stakeholder bodies, followed by appointment of members under section 7(1)(h) by the Cabinet Secretary, and culminating in the appointment of the Chairperson by the President strictly from among persons duly appointed as members under that provision. According to the Petitioners, this statutory architecture is not merely directory but mandatory, and any deviation therefrom renders the resultant appointment unlawful.
9. The Petitioners further contend that the First Schedule to the Act circumscribes the lawful nominating entities to specific professional and stakeholder bodies, namely the Institution of Engineers of Kenya, the Automobile Association of Kenya, the Kenya Association of Manufacturers, the Institute of Certified Public Accountants of Kenya, and the Kenya Transport Association. It is their case that the 1st Respondent neither belongs to nor was nominated by any of the said bodies, and therefore fell outside the statutory pool from which a Board member and, by extension, the Chairperson could lawfully be drawn. On this basis, they impugn both Gazette Notice No. 384 of 16 th January 2025, appointing her as a Board member, and Gazette Notice No. 395 of 17 th January 2025, appointing her as Chairperson.
10. In addition, the Petitioners allege that the statutory nomination process was wholly bypassed, with no evidence that the designated bodies were invited to submit nominees or that any competitive or consultative process was undertaken as contemplated under the Act. They argue that this omission constitutes a fundamental procedural defect that vitiates the entire appointment process. They further invoke the exclusion of the Institution of Engineers of Kenya as particularly significant, contending that it deprived the process of essential technical input required for an institution whose mandate is inherently technical in nature.
11. Substantively, the Petitioners submit that the Kenya Roads Board, by its statutory mandate, is entrusted with the oversight of road development, maintenance, and infrastructure management, functions which demand high-level technical competence and professional oversight. They therefore contend that the office of Chairperson ought, by necessity, to be occupied by a person with demonstrable expertise in engineering or related technical disciplines to ensure fidelity to professional standards and effective governance of public infrastructure systems. In support of this assertion, they rely on the position of the 1 st Interested Party, which questions the suitability and technical competence of the 1 st Respondent for the role.
12. The Petitioners further aver that the appointment process was undertaken in a manner that was opaque, exclusionary, and inconsistent with constitutional values, and was in any event politically motivated rather than merit-based. They contend that the process undermines the constitutional principles of transparency, accountability, integrity, and meritocracy in public appointments, and sets a dangerous precedent for disregard of statutory safeguards governing appointments to public office.
13. On the evidentiary plane, the 2 nd Petitioner depones that the appointment was effected in two stages, first through Gazette Notice No. 384 appointing the 1 st Respondent as a member of the Board, and subsequently through Gazette Notice No. 395 elevating her to Chairperson. He further avers that inquiries made of the relevant professional bodies revealed that the 1 st Respondent was not a member of most of them, thereby casting doubt on her eligibility within the statutory framework. He also asserts that the exclusion of the statutory nominating bodies gave rise to a legitimate expectation of participation which was frustrated by the appointing authority.
14. On this foundation, the Petitioners submit that the impugned appointment violates multiple constitutional provisions, including Articles 1, 2, 3, 10, 21, 27, 47, 73, 159(2)(e), and 232 of the Constitution. They argue that the appointment offends the principles of constitutional supremacy, the rule of law, good governance, public participation, equality, fair administrative action, and merit-based public service.
15. In support of their case, the Petitioners place reliance on a body of jurisprudence emphasising strict adherence to statutory procedure and constitutional values in public appointments, including Speaker of the National Assembly v Karume, Communications Commission of Kenya v Royal Media Services, Republic v County Government of Mombasa ex parte Outdoor Advertising Association of Kenya, Judicial Service Commission v Mbalu Mutava, Trusted Society of Human Rights Alliance v Attorney General , and Mumo Matemu v Trusted Society of Human Rights Alliance . They also invoke the principle in Macfoy v United Africa Co Ltd that a void act is incurably defective and incapable of legal validation.
16. Taken holistically, the Petitioners’ case is that the appointment process was fundamentally defective for want of compliance with a mandatory statutory framework, was undertaken in violation of constitutional norms governing public appointments, and is therefore incapable of legal sustenance. They accordingly urge the Court to intervene to nullify the impugned appointment and restore fidelity to the Constitution and the Kenya Roads Board Act through a fresh, lawful, and procedurally compliant appointment process.
17. On the basis of the foregoing, the Petitioners seek, inter alia:
i. A declaration that the appointment of the 1 st Respondent as Chairperson of the Kenya Roads Board is unconstitutional, illegal, null and void.
ii. An order of certiorari quashing Gazette Notice No. 384 dated 16 January 2025 and Gazette Notice No. 395 dated 17 January 2025.
iii. A declaration that any decisions made by the 1 st Respondent in her capacity as Chairperson of the Kenya Roads Board are null and void.
iv. An order prohibiting the 1st Respondent from assuming or exercising the powers and functions of the office of Chairperson of the Kenya Roads Board.
v. An order directing the appointing authority to undertake a fresh appointment process in strict conformity with the Constitution and the Kenya Roads Board Act.
vi. A declaration that the failure to adhere to the prescribed appointment process violates the Constitution and the statutory provisions governing public appointments.
vii. Such further or other relief as the Court may deem just and appropriate, including costs of the Petitions.
THE 1 ST RESPONDENT’S CASE
18. The 1 st Respondent, Honourable Aisha Jumwa Katana, opposes the consolidated Petitions and maintains that they are misconceived, vexatious, politically motivated, and amount to an abuse of the Court process. She further submits that the Petitions fail the constitutional threshold of precision in pleading as set out in Anarita Karimi Njeru v Republic , for want of reasonable particularity of the alleged constitutional violations and the manner in which they are said to have occurred.
19. It is the 1 st Respondent’s position that her appointment as the non-executive Chairperson of the Kenya Roads Board was lawfully made by the President pursuant to Section 7(1)(a) of the Kenya Roads Board Act, following due appointment as a member of the Board under Section 7(1)(h) of the Act.
20. The 1 st Respondent submits that the appointment process strictly complied with the statutory framework under Section 7 of the Kenya Roads Board Act and the First Schedule thereto. In particular, she was nominated by the Kenya Transport Association, a body listed in the First Schedule, and subsequently appointed as a member of the Board by the Cabinet Secretary before elevation to Chairperson by the President.
21. On statutory qualifications, the 1 st Respondent submits that Section 7(3) of the Act prescribes only minimum qualifications for persons appointed under Section 7(1)(h), namely a Kenya Certificate of Secondary Education or equivalent qualification and at least ten years’ relevant practical experience. It is contended that the Act does not impose any requirement for engineering or profession-specific qualifications for appointment as Chairperson.
22. The 1 st Respondent further submits that she meets the statutory threshold through her academic background and extensive public service experience in various leadership positions. It is contended that such experience constitutes “practical experience” within the meaning of the Act and adequately qualifies her for the office.
23. She further submits that the Kenya Roads Board Act establishes a multi-sectoral governance structure drawn from diverse stakeholder organisations under the First Schedule, and does not restrict eligibility for appointment as Chairperson to any particular professional discipline or body.
24. The 1 st Respondent contends that the Petitioners have failed to establish any specific violation of the Constitution. The allegations are said to be generalised, unparticularised, and unsupported by evidence, and no breach of Articles 2, 3, 10, 21, 27, 47, 73, 159, 161, or 232 has been demonstrated.
25. It is further submitted that the Petitioners have not discharged the evidentiary burden in constitutional litigation and have failed to demonstrate illegality, irrationality, procedural impropriety, or unreasonableness in the impugned appointment.
26. On reliefs, the 1 st Respondent submits that the Court should exercise restraint in reviewing constitutionally and statutorily mandated executive appointments and avoid substituting its discretion for that of the appointing authority.
27. It is further submitted that the Petitioners have not established a prima facie case to warrant conservatory relief, and that the application is in any event overtaken by events.
28. The 1 st Respondent therefore urges the Court to dismiss the consolidated Petitions and the interlocutory applications with costs.
THE 2 ND RESPONDENT’S CASE
29. The 2 nd Respondent, the Kenya Roads Board, opposes the consolidated Petitions through affidavits filed on its behalf, and maintains that the appointment of the 1st Respondent was lawful, procedural, and in strict compliance with the Constitution and the Kenya Roads Board Act.
30. The 2 nd Respondent submits that the Board is established under Section 4 of the Act as a body corporate mandated to oversee, coordinate, and advise on the development and maintenance of the national road network. It further submits that Section 7(1)(a) vests the President with authority to appoint the non-executive Chairperson from among members appointed under Section 7(1)(h), while Section 7(1)(h) provides for appointment of members nominated by organisations listed in the First Schedule. The said organisations include the Institution of Engineers of Kenya, the Automobile Association of Kenya, the Kenya Association of Manufacturers, the Institute of Certified Public Accountants of Kenya, and the Kenya Transport Association.
31. The 2 nd Respondent submits that the 1 st Respondent was duly nominated by the Kenya Transport Association, appointed as a member of the Board by the Cabinet Secretary under Section 7(1)(h), and thereafter appointed as Chairperson by the President under Section 7(1)(a) through Gazette Notice No. 395 of 17 January 2025.
32. It is the 2 nd Respondent’s case that the statutory process was fully complied with, and that the law does not require simultaneous consultation of all First Schedule organisations, but only that nominations be received from the designated bodies before appointment is made.
33. The 2 nd Respondent further submits that the Kenya Roads Board Act does not impose any requirement that the Chairperson possess engineering or technical qualifications, nor that such office be drawn from any specific professional body. The statutory scheme is said to contemplate multi-sectoral representation rather than professional exclusivity.
34. It is further submitted that the 1 st Respondent meets the statutory requirements under Section 7(3) of the Act, having the requisite academic qualifications and extensive public service experience spanning more than ten years in leadership positions at national level.
35. The 2 nd Respondent challenges the evidentiary basis of the Petitioners’ allegations, particularly claims relating to membership status in professional bodies, which it submits are based on unverified and unauthenticated material.
36. It further submits that the consolidated Petitions fail to meet the constitutional threshold of precision as articulated in Anarita Karimi Njeru v Republic and Mumo Matemu v Trusted Society of Human Rights Alliance , as they contain generalized allegations without specific proof of constitutional violations or injury.
37. The 2 nd Respondent submits that the application for conservatory relief has been overtaken by events, the 1 st Respondent having already assumed office pursuant to the impugned Gazette Notice, and in any event no prima facie case has been established.
38. The 2 nd Respondent further urges the Court to exercise restraint in interfering with statutory appointments undertaken by constitutionally mandated organs and cautions against granting orders that would amount to rewriting the statutory framework governing the Kenya Roads Board.
39. The 2 nd Respondent thus prays that the consolidated Petitions be dismissed with costs.
THE 3 RD RESPONDENT’S CASE
40. The 3 rd Respondent opposes the consolidated Petitions and urges the Court to dismiss the same in their entirety for want of merit. It is its position that the impugned appointment of Honourable Aisha Jumwa Katana as Chairperson of the Kenya Roads Board was lawfully and validly undertaken by the President pursuant to Section 7(1)(a) of the Kenya Roads Board Act, and that the process was at all material times anchored in a proper statutory and constitutional framework.
41. The 3 rd Respondent submits that the appointee was duly nominated and appointed within the meaning of Section 7(1)(h) and Section 7(3) of the Act. It contends that the statutory scheme only requires nomination by one of the organisations listed in the First Schedule, followed by appointment by the Cabinet Secretary as a member, and thereafter appointment by the President as Chairperson from among such members. It is further submitted that the Act does not impose any additional professional or technical qualifications beyond the express statutory threshold of possession of a Kenya Certificate of Secondary Education or its equivalent, together with at least ten years’ practical experience. On this basis, it is contended that the 1 st Respondent satisfies the statutory criteria by virtue of her academic background and extensive public service experience, which properly constitutes “practical experience” within the meaning of the Act.
42. The 3 rd Respondent further submits that the Petitioners have failed to demonstrate any violation of constitutional rights attributable to it, and that the pleadings do not meet the constitutional threshold of reasonable precision as articulated in Anarita Karimi Njeru v Republic and reaffirmed in Mumo Matemu v Trusted Society of Human Rights Alliance . It is argued that the Petition is founded on generalized and sweeping allegations devoid of specific factual particulars capable of sustaining constitutional scrutiny. It is further contended that the Petition offends Sections 107 and 109 of the Evidence Act, as the Petitioners have failed to discharge the evidentiary burden of proof, consistent with the principle in Lt. Col. Peter Ngari Kagume v Attorney General .
43. On constitutional interpretation, the 3 rd Respondent relies on Attorney General v Law Society of Kenya & 4 Others to submit that presidential appointment powers under Article 132 of the Constitution are constitutionally sanctioned executive functions. It is further contended that the rights alleged to have been infringed are, in any event, not absolute and may be lawfully limited under Article 24 of the Constitution, and that no non-derogable rights under Article 25 have been implicated in the circumstances of this case.
44. The 3 rd Respondent further rejects the contention that engineering or technical qualifications constitute a legal prerequisite for appointment as Chairperson of the Kenya Roads Board. It submits that neither the Constitution nor the Kenya Roads Board Act imposes such a requirement, and that to import such conditions would amount to rewriting clear statutory provisions. It reiterates that the governing legal framework only requires nomination by designated bodies and satisfaction of the basic statutory academic and experiential thresholds.
45. On the question of reliefs, the 3 rd Respondent submits that the Petitioners have failed to establish any constitutional or statutory breach capable of warranting judicial intervention. It contends that the allegations raised amount to unsubstantiated challenges to the merits of an executive appointment, rather than demonstrable violations of law or rights. Accordingly, it urges the Court to find that the Petitions lack both evidential and legal foundation, constitute an abuse of the court process, and ought to be dismissed with costs. It further submits that, being framed as public interest litigation, no basis has been laid for an adverse costs order against the 3 rd Respondent.
46. The 3 rd Respondent maintains that the impugned appointment was lawful, procedurally proper, and constitutionally compliant, and that the Petitioners have failed to discharge the burden of proof or establish any basis for the Court’s interference with the decision of the appointing authority.
THE 1 ST INTERESTED PARTY’S CASE
47. The Institution of Engineers of Kenya (IEK), the 1 st Interested Party, opposes the appointment of Hon. Aisha Jumwa Katana as the Non-Executive Chairperson of the Kenya Roads Board through Gazette Notice No. 395 of 17 January 2025, contending that the same is unconstitutional, unlawful, ultra vires the Kenya Roads Board Act, and therefore void ab initio .
48. IEK’s case is anchored on its status as one of the professional bodies expressly designated under the First Schedule to the Kenya Roads Board Act, 1999, which collectively constitute the statutory pool from which members of the Board are to be nominated under Section 7(1)(h) of the Act. It is its position that the statutory scheme establishes a mandatory and sequential appointment process comprising nomination by the designated bodies, appointment of members by the Cabinet Secretary, and thereafter appointment of the Chairperson by the President strictly from among such duly appointed members under Section 7(1)(a).
49. IEK contends that this statutory framework was fundamentally breached. It asserts that no lawful nomination process was undertaken or initiated by the designated bodies listed under the First Schedule, including itself, the Kenya Association of Manufacturers, the Institute of Certified Public Accountants of Kenya, and other stakeholder organisations. According to IEK, the exclusion of these bodies from the process amounts to a material procedural defect that vitiates the entire appointment process at its inception.
50. It is further IEK’s case that Gazette Notice No. 384 of 16 January 2025, which appointed the 1 st Respondent as a member of the Board, was issued absent any valid nomination from a First Schedule body, and consequently, the subsequent appointment as Chairperson through Gazette Notice No. 395 of 17 January 2025 was anchored on an unlawful foundation. IEK maintains that the statutory precondition of lawful nomination was not satisfied, and the 1 st Respondent therefore did not fall within the lawful pool of eligible persons contemplated under Section 7(1)(a) and (h) of the Act.
51. On the constitutional plane, IEK submits that the impugned appointment offends the national values and principles of governance under Article 10 of the Constitution, particularly public participation, inclusivity, transparency, accountability, and the rule of law. It further contends that the exclusion of statutory stakeholder bodies from the appointment process amounts to procedural unfairness in violation of Article 47 on fair administrative action, as the affected bodies were neither consulted nor afforded an opportunity to participate in a process in which they are expressly entrenched by statute.
52. IEK also invokes Article 232 of the Constitution, arguing that the appointment contravenes the principles of merit, fair competition, transparency, and representativeness in public appointments. It maintains that the process was opaque, non-competitive, and inconsistent with a constitutionally compliant selection mechanism for leadership of a public statutory body entrusted with significant infrastructural and financial responsibilities.
53. Substantively, IEK argues that the Kenya Roads Board, by its mandate under the Act, requires leadership with demonstrable technical competence in engineering and allied disciplines, given its oversight over national road infrastructure and the Road Maintenance Levy Fund. It contends that the statutory design of the Board, as reflected in the First Schedule, underscores the centrality of technical expertise, and that historical practice has consistently reflected such professional orientation in leadership appointments.
54. In support of its position, IEK relies on a line of judicial authority emphasizing strict compliance with statutory procedures and the consequences of deviation therefrom, including Judicial Service Commission v Gladys Boss Shollei [2014] eKLR, Communications Commission of Kenya v Royal Media Services [2014] eKLR, Meru County Government v Ethics and Anti-Corruption Commission [2020] eKLR , and Trusted Society of Human Rights Alliance v Attorney General [2012] eKLR. It also relies on Republic v Public Service Commission ex parte Geoffrey Mwangi [2015] eKLR for the proposition that exclusion of mandatory stakeholders and breach of prescribed procedure renders administrative action null and void.
55. On relief, IEK urges the Court to find that the appointment is a nullity for non-compliance with mandatory statutory and constitutional requirements. It seeks declaratory relief invalidating Gazette Notice No. 384 of 16 January 2025 and Gazette Notice No. 395 of 17 January 2025, orders of certiorari quashing the impugned appointments, and an order of prohibition restraining the 1 st Respondent from assuming or continuing to hold office. IEK further prays for a mandatory order directing a fresh appointment process strictly compliant with the Constitution and the Kenya Roads Board Act, undertaken with full participation of all First Schedule bodies.
56. In addition, IEK invokes the remedy of quo warranto under Article 23(3)(d) of the Constitution, contending that the 1 st Respondent is unlawfully occupying a public office without lawful authority, and that IEK, as a statutory stakeholder and nominating body, has standing to challenge such occupation in the public interest.
57. The 1 st Interested Party, IEK characterises the impugned appointment as a fundamental departure from the statutory architecture governing the Kenya Roads Board and a violation of constitutional governance standards. It therefore urges the Court to intervene to restore legality, uphold the rule of law, and safeguard the integrity of public appointments within the statutory framework.
ANALYSIS AND DETERMINATION
58. Having carefully considered the pleadings, affidavits, rival submissions of counsel, and the applicable constitutional and statutory framework, together with the authorities cited by the parties, the Court is of the considered view that the dispute before it turns on four narrow but fundamental questions of law and fact which go to the legality and constitutional propriety of the impugned appointment. The issues, that commend themselves for determination as follows:
i. Whether the consolidated Petition meets threshold question of constitutional pleadings
ii. Whether the appointment of Honourable Aisha Jumwa Katana as Chairperson of the Kenya Roads Board complied with the mandatory requirements of Section 7 of the Kenya Roads Board Act, No. 7 of 1999.
iii. Whether the said appointment, irrespective of its statutory compliance or otherwise, offended the Constitution of Kenya, 2010.
iv. Whether the Petitioners are entitled to the reliefs sought in the consolidated Petitions, and if so, the nature and extent of such reliefs as may properly issue from this Court.
Whether the consolidated Petition meets the threshold of constitutional pleadings
59. The Respondents contend that the consolidated Petition is fatally defective for want of precision. It i
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