REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E124 OF 2023
IN THE MATTER OF CONTRAVENTION AND INTENDED CONTRAVENTION OF FUNDAMETAL RIGHTS AND FREEDOMS UNDER ARTICLES 2, 27, 41, 47 AND 231 AND 258 OF THE CONSTITUTION OF KENYA, 2010.
AND
IN THE MATTER OF THE CENTRAL BANK OF KENYA, ACT
AND
IN THE MATTER OF ADVERTISEMENT FOR POSITION OF GOVERNOR AND DEPUTY GOVERNOR OF CENTRAL BANK OF KENYA
AND
IN THE MATTER OF PUBLIC SERVICE COMMISSION ACT
AND
IN THE MATTER OF FAIR ADMINISTRATION ACT
AND
IN THE MATTER OF CONTRAVENTION OF THE EMPLOYMENT ACT
AND
IN THE MATER OF CONTRAVENTION OF THE APPLICATION, ENFORCEMENT AND INTERPRETATION OF SECTIONS 12A, 13, 13B, 13C AND 14(1) OF THE CENTRAL BANK OF KENYA ACT
-BETWEEN
ISHMAEL NYARIBO t/a
I.N. NYARIBO & COMPANY ADVOCATES ........................ PETITIONER
-VERSUS-
PUBLIC SERVICE COMMISSION ............................... 1 ST RESPONDENT
THE ATTORNEY GENERAL OF KENYA .................. 2 ND RESPONDENT
CENTRAL BANK OF KENYA ...................................... 3 RD RESPONDENT
THE NATIONAL ASSEMBLY .................................... 4TH RESPONDENT
JUDGMENT
Introduction
1. The amended Petition dated 17th April 2023 challenges an advertisement dated 30 th March 2023, issued by the 1 st Respondent the Public Service Commission, inviting applications for the positions of Governor and Deputy Governor of the Central Bank of Kenya. The Petitioner Claims that the requirements set out in the advertisement, alongside the underlying statutory provisions of the Central Bank of Kenya Act, CAP 491 violate constitutional principles regarding equality, fair administrative action, non-discrimination, and fair labor practices. The Petitioner alleged that Sections 13, 13B, 13C, and 14(1) of the Central Bank of Kenya Act Cap 491 are unconstitutional because they violate Articles 27, 41, and 47 of the Constitution by unfairly discriminating against financial specialists.
2. The Petitioner Ishamel Nyaribo T/A I.N. Nyaribo & Company Advocates seeks the following reliefs:
(a) A DECLARATION that Sections 13, 13B, 13C, and 14 of the Central Bank of Kenya Act, CAP 491 is inconsistent with the Constitution, and therefore void and invalid in terms of Article 2(4) of the Constitution.
(b) A DECLARATION that Section 13, 13B, 13C and 14 of the Central Bank of Kenya Act Cap 491 is in part, and in whole unconstitutional and it accordingly stands to be struck off from the statute.
(c) An ORDER that the Advertisement dated 30 th March 2023 issued by the 1 st Respondent be reviewed forthwith to abide by the constitutional provisions of the Constitution of Kenya 2010.
(d) Any other equitable relief that the Honourable Court may wish to grant the Petitioner.
3. The Petition is supported by the sworn affidavit of the Petitioner on 14 th April 2023 in which he asserts that the Public Service Commission’s advertisement for the positions of Governor and Deputy Governor of the Central Bank of Kenya is discriminatory against a large number of otherwise qualified professionals noting that the Governor and Deputy Governor positions are critical to Kenya’s economic well-being.
4. He avers that the advertisement was set to close on 19 th April 2023, at 5:00 PM and that without the court’s intervention, the recruitment process will result in continued violations of the Constitution.
5. Concurrently with the Petition, the Petitioner had also filed a Notice of Motion Application dated 14 th April 2023 seeking conservatory orders to stay the recruitment process pending the hearing and determination of this Petition by the Court. A Notice of Preliminary Objection was filed by the 3 rd Respondent.
6. On 8 th May 2023, this Court, differently constituted Ongudi J (as she then was) declined to issue conservatory orders and urged the parties to proceed with the hearing of the main suit on a priority basis. The subsequent responses therefore, addressed both the conservatory orders Application and the main Petition. The parties also took directions to canvass the Preliminary Objection in the main Petition.
Responses
7. In response to the Petition, the 1 st Respondent Public Service Commission through its Principal Legal Counsel Wangeci Gichangi, filed Grounds of Opposition dated 26 th April 2023 seeking a dismissal of the Petitioner’s Notice of Motion Application and Petition with costs.
8. The key grounds of opposition pleaded are lack of precision where the 1 st Respondent contends that the Application and Petition constitute an abuse of court process because the Petitioner merely cited statutory and constitutional provisions without setting out alleged violations or omissions with reasonable precision as set out in Anarita Karimi Njeru v Republic case.
9. That the petition is based on conjecture, apprehension and misapprehension, lacking solid factual pleadings. It is further asserted that the recruitment process and candidate qualifications for the CBK Governor and Deputy Governor positions are strictly governed by the Constitution, the Central Bank Act (CAP 491) and the Public Service Commission Act.
10. It is pleaded that Sections 13, 13B, 13C, and 14 of the Central Bank Act carry a presumption of constitutionality until proven otherwise as was held in Ndyanabo v Attorney General .
11. Additionally, it is contended that the Petitioner failed to meet established legal standards for granting conservatory orders as set out in Gatirau Peter Munya v Dickson Mwenda Kithinji and Nubian Rights Forum v Attorney General .
12. The 1 st Respondent contends that no evidence of actual, imminent danger, irreparable harm, or rights violation under Article 23 (3) (c) was demonstrated to justify court intervention and that the court retains full power to quash the recruitment process later if it is found to be unconstitutional, meaning conservatory orders are unnecessary.
13. The 2 nd Respondent, the Attorney General also filed Grounds of Opposition dated 24 th April 2023, opposing the Petition on grounds that the Petitioner failed to demonstrate with precision how the Public Service Commission, the Attorney General or the Central Bank of Kenya violated any constitutional or statutory mandate during the recruitment process for the positions of Governor and Deputy Governor of the Central Bank of Kenya.
14. The Attorney General maintains that the statutory qualifications and recruitment procedures are clearly anchored under the Constitution, the Central Bank Act (CAP 491) and the Public Service Commission Act. Further that, Sections 13, 13B, 13C, and 14 of the Central Bank Act carry a presumption of legality that the Petitioner has failed to overcome.
15. The 2 nd Respondent adds that any limitations on constitutional rights under Articles 27, 41, and 47 meet the requirements of Article 24, and that the Petitioner’s personal difficulty in meeting statutory requirements does not make the law unconstitutional.
16. Characterising the petition as bad-faith, an afterthought and based on personal inclinations rather than a real controversy, the Attorney General highlights that the challenged statutory framework was enacted in 2012 and has guided successive appointments without prior challenge. Additionally, they argue that the Petitioner failed to satisfy the legal standard for conservatory orders established in Gatirau Peter Munya v. Dickson Mwenda Kithinji and Nubian Rights Forum v. Attorney General .
17. Another ground is that the Petitioner demonstrated no real, imminent danger, irreparable harm, or actual infringement of rights under Article 23(3)(c).
18. Finally, the 2 nd Respondent warns that granting conservatory relief would delay filling vital monetary policy leadership roles, threaten financial stability and undermine Article 231(2) of the Constitution . It is further contended that because the recruitment process is reversible and could be quashed later if ultimately found invalid, both the Application and Petition be dismissed with costs.
19. The 3 rd Respondent, The Central Bank of Kenya filed a Replying Affidavit and Preliminary Objection in opposing the Petition and Application.
20. In the Notice of Preliminary Objection dated 24 th April 2023, the 3 rd Respondent asserts that the petition is bad in law, does not lie and should be struck out or dismissed with costs on the following grounds: -
(1 The Petition seeks to challenge the autonomy of the Central Bank of Kenya as granted by Article 231 of the Constitution of Kenya ("the Constitution").
(2 The power to enact legislation with regard to the composition, powers, functions and operations are, having been granted to Parliament by Article 231 of the Constitution to provide for the composition, powers, functions and operations of the Central Bank of Kenya ("the Bank"), and Parliament having pursuant thereto enacted the Central Bank of Kenya Cap. 491 ("the Act"), the same cannot be challenged by way of a Petition.
(3 The Petition contradicts the provisions of Articles 10 and 73(2)(a) & (b) of the Constitution which provide for the guiding principles of leadership and integrity to include selection on the basis of personal integrity, competence and suitability, as well as objectivity and impartiality in decisions making and ensuring that decisions are not influenced by inter alia favouritism and improper motives.
(4 The matters pleaded by the Petitioner are contrary to the principles of Leadership and Integrity as provided for under Chapter Six of the Constitution and more specifically the selection on the basis of personal integrity, competence and suitability and the necessity to avoid any conflict between personal interest and public official duties.
(5 The Petitioner seeks the declaration of nullity with regard to Sections 13, 13B and 13C of the Act without providing any pleading or ground therefor. In the foregoing, the Petition does not meet the threshold under Article 258 of the Constitution as there is no contravention or a threat to contravene the Constitution.
(6 The Petition, on the face of it, is an abuse of process as it does not set out with reasonable precision the constitutional violations or omissions by the 3 rd Respondent as well as the provisions of the Constitution allegedly infringed contrary to the binding precedents set out in Anarita Karimi Njeru vs. Republic [1979] eKLR and Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5 others [2013] eKLR.
21. In the Replying Affidavit dated 25 th April 2023 by Kennedy Kaunda Abuga, the General Counsel of the Central Bank of Kenya (CBK), the 3 rd Respondent opposes the Petition and highlights that the advertisement set an application deadline of 19 th April 2023, to replace the outgoing Governor and a Deputy Governor whose terms expired in June 2023.
22. He asserts that the statutory qualifications and disqualification criteria in Sections 13, 13B, 13C, and 14 of the Central Bank Act (Cap 491 ) are reasonable, proportionate and rationally connected to ensuring good governance, avoiding conflicts of interest and maintaining monetary policy independence under Article 24 and Chapter Six of the Constitution .
23. The deponent further deposes that Section 14(1)(c) rightly excludes bank officers, directors, or shareholders to prevent severe conflict of interest and contends that the Petitioner failed to plead with precision how the statutory framework or recruitment process violates constitutional rights under Articles 27, 47, 231, or 258 .
24. The deponent states that CBK neither issued a publication, the advertisement, nor is it statutorily mandated to conduct the recruitment, making the claims against the 3 rd Respondent misplaced.
25. Finally, the CBK argues that declaring Sections 13 and 13B unconstitutional would ground the operations and financial sector regulation of the CBK, thereby violating Article 231 of the Constitution . It is their contention that the Petitioner is guilty of laches by waiting until the application window expired on 19 th April 2023, before filing the petition and they prayed for the Petition to be dismissed with costs.
26. The 4 th Respondent the National Assembly filed a Replying Affidavit sworn by Mr. Samuel Njoroge, the Clerk of the National Assembly dated 17 th February 2025. The deponent opposes the Petitioner’s challenge to the constitutionality of Sections 13, 13B, 13C, and 14 of the Central Bank of Kenya (CBK) Act (Cap 491) and the Public Service Commission's advertisement dated 30 th March, 2023 affirming that the impugned provisions of the CBK Act were procedurally and legally enacted in strict accordance with the Constitution of Kenya 2010 and the Standing Orders of the National Assembly.
27. The 4 th Respondent argues that the Petition lacks the required constitutional specificity under Rule 10(2), as it fails to precisely state the infringed rights or injury caused. Further, that the Petitioner failed to exhaust available statutory remedies, such as petitioning Parliament under Article 119 to amend the law.
28. It is averred that granting the requested relief would violate the principle of constitutional avoidance and breach the separation of powers by interfering with Parliament’s exclusive legislative mandate under Article 94.
29. The National Assembly maintains that Sections 13, 13B, 13C, and 14 of the CBK Act are fully constitutional and enacted pursuant to Article 231(5). That the eligibility limitations under Section 14 are reasonable, proportionate and rationally designed to prevent conflict of interest and to ensure independent leadership.
30. It is asserted that differentials based on job requirements do not constitute illegal discrimination under Article 27 or the Employment Act, and that because the Petitioner failed to rebut the legal presumption of constitutionality, the Petition should be dismissed with costs.
31. Parties took directions to canvass the Petition and Preliminary Objection by way of written submissions which they also highlighted in Court on 18 th June 2026.
The Petitioner’s Submissions
32. The Petitioner’s Submissions on the Preliminary Objection raised by the 3 rd Respondent are dated 3 rd May 2023 stating that the 3 rd Respondent’s objection raised factual arguments rather than pure points of law, rendering it improper as a preliminary bar to jurisdiction.
33. The Petitioner argues that under Article 159 of the Constitution, courts are mandated to administer justice without undue regard to technicalities. Counsel submits that the impugned provisions suppress principles of corporate governance and national values enshrined in Article 10 of the Constitution.
34. Reliance was placed on Petition 284 of 2019 as consolidated with Petition 355 of 2019, The Senate of the Republic of Kenya & 4 others v. The Speaker of the National Assembly and another , where a three-judge bench comprising Justices Anthony Ndung’u, Ngaah Jairus, and Mumbua T. Matheka is said to have declared 23 pieces of legislation to be unconstitutional for lack of proper public participation.
35. Counsel also cited Mugure & 2 others v. Higher Education Loans Board (Petition E002 of 2021) [2022] KEHC 11951 (KLR) (Civ ), where Justice A. Mabeya is said to have quashed Section 15(2) of the HELB Act for violating Article 43(1)(e) and (f) as well as Article 27 of the Constitution by imposing interest rates exceeding the principal amount in violation of the duplum rule.
36. Regarding the court’s jurisdiction over ongoing recruitment processes, the petitioner cited Katiba Institute v. Judicial Service Commission & 2 Others and Petition No. 101 of 2011, FIDA-K & others v. Attorney General & another , emphasizing that failure to grant conservatory orders would render the main petition nugatory. The petitioner relied on Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 others [2014] and Katiba Institute v. Judicial Service Commission & 2 Others to urge the court to grant interim relief and preserve the substratum of the matter.
37. The Petitioner also filed submissions on the main petition dated 27 th June 2023. The petitioner argued that Sections 12A, 13, 13B, 13C, and 14 of the Central Bank of Kenya Act Cap 491 unfairly exclude qualified private sector professionals from recruitment, thereby violating Articles 2, 27, 41, 47, 231, and 258 of the Constitution .
38. Counsel submits that the exclusion of private-sector candidates creates an arbitrary classification that fails the test of reasonable distinction under Article 27 of the Constitution, guaranteeing equality and freedom from discrimination and Article 232 of the Constitution on values and principles of public service.
39. On the standard for non-discrimination, Counsel cited High Court Constitutional Petition 476 of 2015; The Coalition for Reforms and Democracy v. The Attorney General and 2 others , where a three-judge bench consisting of Justices P. Nyamweya, W. Okwany, and J. M. Mativo emphasized that at the heart of the prohibition of unfair discrimination lies the recognition of equal dignity and respect. The petitioner further supports the role of private sector expertise in governance by referring to persuasive foreign jurisprudence: the U.S. Supreme Court decision in Humphrey’s Executor v. United States (1935) regarding specialized expertise in independent regulatory bodies, Federal Reserve Board v. Chase National Bank (1943) on central bank independence from political influence, and Bank of Augusta v. Earle (1839). Reliance was also placed on the United Kingdom’s Bank of England Act 1998 to argue for independent, diverse governance structures free from political interference.
40. Addressing the legal standards for constitutional interpretation, the petitioner relies on Constitutional Petition 84 of 2018, Katiba Institute v. Attorney General and 2 others , E. C. Mwita J ( as he then was) affirmed that under Article 259(1) of the Constitution of Kenya, constitutional interpretation must promote purpose, values, human rights, the rule of law, and good governance, relying on Re The Matter of Interim Independent Electoral and Boundaries Commission [2011] eKLR , Mahomed v. State v. Acheson 1991, and SA SOS .
41. Counsel highlights the principle of purposive interpretation laid down by the Supreme Court of Canada in R. v. Big M Drug Mart Limited [1985] 1 SCR 295. To demonstrate the necessity of harmonious interpretation, the petitioner cites High Court Constitutional Petition 566 of 2012, Marilyn Muthoni Kamuru & 2 others v. The Attorney General & another and the decision of the Court of Appeal in Tinyefuza vs. The Attorney General Constitutional Appeal No. 1 of 1997 .
42. Lastly, Counsel contends that Sections 13 and 14(1)(c) of the Central Bank of Kenya Act Cap 491 directly contradict Section 5(2), (3), and (6) of the Employment Act as well as Sections 36 and 37 of the Public Service Commission Act , which prohibit discrimination in public recruitment processes.
The 1 st Respondent’s Submissions
43. The 1 st Respondent filed its submissions dated 1 st March 2024, made in opposition to the Petitioner’s application and Petition dated 17 th April 2023. Counsel isolated the following issues for determination: Whether Sections 13, 13B, 13C and 14 of the CBK Act are unconstitutional; Whether the 1 st Respondent violated Articles 21(1) and 27 of the Constitution by advertising for vacancies in the office of CBK Governor and Deputy Governor; and Whether the Petitioner is entitled to the reliefs sought in the Petition dated 17 th April 2023.
44. On the first issue, Counsel for the 1 st Respondent submits that the Petitioner failed to meet the pleading precision standard set in Anarita Karimi Njeru v. Republic [1979] eKLR and reaffirmed in Communications Commission of Kenya & 5 Others v. Royal Media Services Limited & 5 Others [2014] eKLR , which requires clear demonstration of the manner of constitutional violation.
45. Relying on Olum and another v. Attorney General [2002] EA, The Queen v. Big M Drug Mart Ltd (1986) and Centre for Rights Education and Awareness & another v. John Harun Mwau & 6 others [2012] eKLR , Counsel for the 1 st Respondent asserts that evaluating statutory validity requires analysing both purpose and effect. The statutory disqualifications under Section 14(1)(c) of the Central Bank of Kenya Act Cap 491 serve the legitimate object under Section 4 of the Central Bank of Kenya Act Cap 491 to regulate financial systems and prevent conflicts of interest, constituting a permissible limitation under Article 24(1) of the Constitution of Kenya 2010. Quoting Nyarangi & 3 Others v. Attorney General HCCP No. 298 of 2008 [2008] KLR 688 , Counsel maintains that the law prohibits only unfair discrimination, not reasonable restrictions justified by democratic values and public interest.
46. Counsel further contends that the impugned statutory provisions enjoy a presumption of constitutionality, as established in Ndyanabo v. Attorney General [2001] EA 495 , which the Petitioner failed to rebut. Referencing Muema Mativo v. Director of Criminal Investigation & 2 others [2021] eKLR , Jeminah Wambui Ikere v. Standard Group Ltd and Anor (Petition No. 466 of 2012) and Rapinder Kaur Atwal v. Manjit Singh Amrit (Petition No. 236 of 2011), Counsel submits that the court process cannot be used as a substitute to remedy administrative grievances without proving actual rights violations under Article 23(1) of the Constitution . Furthermore, regarding the alleged violation of Articles 21(1) and 27 of the Constitution , Counsel cites John Harun Mwau v. Independent Electoral and Boundaries Commission & Another [2013] eKLR to emphasize that establishing a constitutional breach requires proving a denial of equal protection rather than mere differentiation. Consequently, Counsel submits that the recruitment advertisement was lawfully conducted pursuant to its mandate, praying for the petition to be dismissed with costs.
The 2 nd Respondent’s Submissions
47. The 2 nd Respondent’s written submissions on the petition are dated 31 st January 2024. The Petitioner sought a declaration that Sections 13, 13B, 13C, and 14 of the Central Bank of Kenya Act Cap 491 are unconstitutional for violating Articles 27, 41, and 47 of the Constitution . Counsel isolated one issue for determination being: the constitutionality of the impugned provisions as alleged in the petitioner’s pleadings.
48. Counsel for the 2 nd Respondent submits that under Article 259 of the Constitution , constitutional interpretation must promote values, principles, human rights, and the rule of law, while Article 159(2)(e) of the Constitution of Kenya 2010 mandates the court to protect and promote these principles. He relied on Center for Rights Education and Awareness & 2 others v. John Harun Mwau & 6 others [2012] eKLR , and emphasized that every Act of Parliament carries a presumption of constitutionality, requiring a holistic, purposive reading of the statutory object and effect. To reinforce this presumption, Counsel cites the Indian Supreme Court decision in Hamdard Dawakhana & Anor v. The Union of India & Others (1960), where it was held that legislatures enact laws based on experience and common knowledge to address public needs. Relying on Federation of Women Lawyers Kenya (FIDA) v. Attorney General & another [2018] eKLR, Counsel stresses that all relevant constitutional provisions must be interpreted together to fulfil the greater purpose of the Constitution.
49. Addressing the equality claim under Article 27 of the Constitution Counsel submits that mere inequality of treatment or differentiation does not constitute unconstitutional discrimination unless it is arbitrary and lacks a rational connection to a legitimate statutory goal. Relying on Nyarangi & Others v. Attorney General [2008] KLR 688 , which cited the US Supreme Court case Griggs v. Duke Power Company (1971) , Counsel highlights the legal distinction between direct and indirect discrimination.
50. Counsel for the 2 nd Respondent further cites Kedar Nath v. State of West Bengal (1953) and John Harun Mwau v. Independent Electoral and Boundaries Commission & Another [2013] eKLR to argue that statutory differentiation requires proof of an unreasonable denial of equal benefit. Utilizing the three-pronged test formulated in Nelson Andayi Havi v. Law Society of Kenya & 3 Others (2018) eKLR , Counsel maintains that the qualifications and disqualifications in Sections 13, 13B, 13C, and 14 of the Central Bank of Kenya Act Cap 491 align with Section 4 of the Central Bank of Kenya Act Cap 491 to prevent conflicts of interest and preserve leadership integrity as mandated by Article 73(2) of the Constitution.
51. Lastly, Counsel for the 2 nd Respondent contends that the Petitioner failed to demonstrate how Articles 41 and 47 of the Constitution were violated, praying for the dismissal of the Petition.
The 3 rd Respondent’s Submissions
52. In its written submissions dated 28 th April 2023, filed in support of its Preliminary Objection dated 24 th April 2023, the 3 rd Respondent the Central Bank of Kenya asks the Court to dismiss the Petition on the grounds that it fails to disclose any constitutional violation with precision and violates the presumption of constitutionality accorded to statutes. Counsel for the 3 rd Respondent highlights that under Article 231(5) of the Constitution , Parliament was given the explicit mandate to enact legislation providing for the composition, powers, functions and operations of the Central Bank of Kenya. That inn line with this mandate, Parliament enacted the Central Bank of Kenya Act (Cap. 491), establishing the qualifications and disqualifications for the positions of Governor, Deputy Governor and Board Members under Sections 13, 13B, 13C, and 14(1)(c) of the Central Bank of Kenya Act.
53. Counsel emphasizes that the Petitioner fails to demonstrate with reasonable precision how these provisions infringe upon Article 27 of the Constitution on equality and freedom from discrimination, Article 41 on fair labour practices or Article 47 on fair administrative action, relying on the precedent set in Anarita Karimi Njeru v. Republic (No. 1) [1979] KLR 154 and Mumo Matemu v. Trusted Society of Human Rights Alliance & Society [2013] eKLR , which require constitutional claims to be pleaded with high specificity.
54. Counsel submits that statutory enactments enjoy a rebuttable presumption of constitutionality, as established in Ndyanabo v. Attorney General [2001] EA 485 , meaning the onus rests entirely on the Petitioner to prove unconstitutionality. Counsel for the 3 rd Respondent contends that Section 14(1)(c) of the Central Bank of Kenya Act which disqualifies directors, officers, employees, partners, or shareholders of specified financial institutions from serving as Governor, Deputy Governor, or Director is aligned with Article 73(2)(a) of the Constitution on avoidance of conflict of interest and Section 16 of the Leadership and Integrity Act (No. 19 of 2012).
55. Reaffirming the central role of the Central Bank as the licensing authority and regulator for banks under Section 4 of the Banking Act (Cap. 488), Counsel argues that avoiding conflict of interest is essential to maintaining institutional integrity and public trust under Article 10(2)(d) of the Constitution . Counsel further maintains that the Petitioner cannot directly challenge Article 80 of the Constitution or the validity of constitutional provisions, relying on Attorney General & another v. Andrew Kiplimo Sang Muge & 2 others [2017] eKLR , which affirms that the Constitution is the supreme law and its provisions cannot be challenged before any court. Finally, relying on Article 259(1)(a) of the Constitution , Counsel concludes that the Petition constitutes an abuse of process and should be dismissed with costs.
56. In their submissions dated 17 th September 2025 on the main Petition and the Notice of Motion Application, Counsel submits that the Petition lacks specificity, discloses no cause of action against the Bank and has been rendered academic and moot. Counsel points out that the advertisement dated 30 th March 2023, issued by the 1 st Respondent (Public Service Commission) for the positions of Governor and Deputy Governor, had already achieved its purpose, leading to appointments published via Gazette Notice:Vol. CXXV – No. 134 dated 13 th June2023.
57. Applying the principles from Kenya National Examinations Council v. Republic ex parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR, Counsel submits that reviewing or quashing an advertisement that has already been fully executed would be an exercise in futility. Additionally, the 3 rd Respondent asserts that it was neither responsible for publishing the advertisement nor mandated to undertake the recruitment, as recruitment falls under the mandate of the Public Service Commission.
58. On the merits of the statutory challenge, Counsel submits that the Petitioner failed to displace the presumption of constitutional validity attached to Sections 13, 13B, 13C, and 14 of the Central Bank of Kenya Act (Cap. 491) . He cited Law Society of Kenya v. Attorney General & another (Petition 4 of 2019) [2019] KESC 16 (KLR) and the Indian Supreme Court decision in Hamdard Dawakhana Keshava v. Union of India and Others (1960 AIR 554), and reiterated that courts must presume statutes to be constitutional unless convincing evidence is presented to the contrary.
59. Counsel highlights that any limitation imposed by Section 14(1) of the Central Bank of Kenya Act satisfies the proportionality and reasonableness tests under Article 24(1) o
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E124 OF 2023
IN THE MATTER OF CONTRAVENTION AND INTENDED CONTRAVENTION OF FUNDAMETAL RIGHTS AND FREEDOMS UNDER ARTICLES 2, 27, 41, 47 AND 231 AND 258 OF THE CONSTITUTION OF KENYA, 2010.
AND
IN THE MATTER OF THE CENTRAL BANK OF KENYA, ACT
AND
IN THE MATTER OF ADVERTISEMENT FOR POSITION OF GOVERNOR AND DEPUTY GOVERNOR OF CENTRAL BANK OF KENYA
AND
IN THE MATTER OF PUBLIC SERVICE COMMISSION ACT
AND
IN THE MATTER OF FAIR ADMINISTRATION ACT
AND
IN THE MATTER OF CONTRAVENTION OF THE EMPLOYMENT ACT
AND
IN THE MATER OF CONTRAVENTION OF THE APPLICATION, ENFORCEMENT AND INTERPRETATION OF SECTIONS 12A, 13, 13B, 13C AND 14(1) OF THE CENTRAL BANK OF KENYA ACT
-BETWEEN
ISHMAEL NYARIBO t/a
I.N. NYARIBO & COMPANY ADVOCATES ........................ PETITIONER
-VERSUS-
PUBLIC SERVICE COMMISSION ............................... 1 ST RESPONDENT
THE ATTORNEY GENERAL OF KENYA .................. 2 ND RESPONDENT
CENTRAL BANK OF KENYA ...................................... 3 RD RESPONDENT
THE NATIONAL ASSEMBLY .................................... 4TH RESPONDENT
JUDGMENT
Introduction
1. The amended Petition dated 17th April 2023 challenges an advertisement dated 30 th March 2023, issued by the 1 st Respondent the Public Service Commission, inviting applications for the positions of Governor and Deputy Governor of the Central Bank of Kenya. The Petitioner Claims that the requirements set out in the advertisement, alongside the underlying statutory provisions of the Central Bank of Kenya Act, CAP 491 violate constitutional principles regarding equality, fair administrative action, non-discrimination, and fair labor practices. The Petitioner alleged that Sections 13, 13B, 13C, and 14(1) of the Central Bank of Kenya Act Cap 491 are unconstitutional because they violate Articles 27, 41, and 47 of the Constitution by unfairly discriminating against financial specialists.
2. The Petitioner Ishamel Nyaribo T/A I.N. Nyaribo & Company Advocates seeks the following reliefs:
(a) A DECLARATION that Sections 13, 13B, 13C, and 14 of the Central Bank of Kenya Act, CAP 491 is inconsistent with the Constitution, and therefore void and invalid in terms of Article 2(4) of the Constitution.
(b) A DECLARATION that Section 13, 13B, 13C and 14 of the Central Bank of Kenya Act Cap 491 is in part, and in whole unconstitutional and it accordingly stands to be struck off from the statute.
(c) An ORDER that the Advertisement dated 30 th March 2023 issued by the 1 st Respondent be reviewed forthwith to abide by the constitutional provisions of the Constitution of Kenya 2010.
(d) Any other equitable relief that the Honourable Court may wish to grant the Petitioner.
3. The Petition is supported by the sworn affidavit of the Petitioner on 14 th April 2023 in which he asserts that the Public Service Commission’s advertisement for the positions of Governor and Deputy Governor of the Central Bank of Kenya is discriminatory against a large number of otherwise qualified professionals noting that the Governor and Deputy Governor positions are critical to Kenya’s economic well-being.
4. He avers that the advertisement was set to close on 19 th April 2023, at 5:00 PM and that without the court’s intervention, the recruitment process will result in continued violations of the Constitution.
5. Concurrently with the Petition, the Petitioner had also filed a Notice of Motion Application dated 14 th April 2023 seeking conservatory orders to stay the recruitment process pending the hearing and determination of this Petition by the Court. A Notice of Preliminary Objection was filed by the 3 rd Respondent.
6. On 8 th May 2023, this Court, differently constituted Ongudi J (as she then was) declined to issue conservatory orders and urged the parties to proceed with the hearing of the main suit on a priority basis. The subsequent responses therefore, addressed both the conservatory orders Application and the main Petition. The parties also took directions to canvass the Preliminary Objection in the main Petition.
Responses
7. In response to the Petition, the 1 st Respondent Public Service Commission through its Principal Legal Counsel Wangeci Gichangi, filed Grounds of Opposition dated 26 th April 2023 seeking a dismissal of the Petitioner’s Notice of Motion Application and Petition with costs.
8. The key grounds of opposition pleaded are lack of precision where the 1 st Respondent contends that the Application and Petition constitute an abuse of court process because the Petitioner merely cited statutory and constitutional provisions without setting out alleged violations or omissions with reasonable precision as set out in Anarita Karimi Njeru v Republic case.
9. That the petition is based on conjecture, apprehension and misapprehension, lacking solid factual pleadings. It is further asserted that the recruitment process and candidate qualifications for the CBK Governor and Deputy Governor positions are strictly governed by the Constitution, the Central Bank Act (CAP 491) and the Public Service Commission Act.
10. It is pleaded that Sections 13, 13B, 13C, and 14 of the Central Bank Act carry a presumption of constitutionality until proven otherwise as was held in Ndyanabo v Attorney General .
11. Additionally, it is contended that the Petitioner failed to meet established legal standards for granting conservatory orders as set out in Gatirau Peter Munya v Dickson Mwenda Kithinji and Nubian Rights Forum v Attorney General .
12. The 1 st Respondent contends that no evidence of actual, imminent danger, irreparable harm, or rights violation under Article 23 (3) (c) was demonstrated to justify court intervention and that the court retains full power to quash the recruitment process later if it is found to be unconstitutional, meaning conservatory orders are unnecessary.
13. The 2 nd Respondent, the Attorney General also filed Grounds of Opposition dated 24 th April 2023, opposing the Petition on grounds that the Petitioner failed to demonstrate with precision how the Public Service Commission, the Attorney General or the Central Bank of Kenya violated any constitutional or statutory mandate during the recruitment process for the positions of Governor and Deputy Governor of the Central Bank of Kenya.
14. The Attorney General maintains that the statutory qualifications and recruitment procedures are clearly anchored under the Constitution, the Central Bank Act (CAP 491) and the Public Service Commission Act. Further that, Sections 13, 13B, 13C, and 14 of the Central Bank Act carry a presumption of legality that the Petitioner has failed to overcome.
15. The 2 nd Respondent adds that any limitations on constitutional rights under Articles 27, 41, and 47 meet the requirements of Article 24, and that the Petitioner’s personal difficulty in meeting statutory requirements does not make the law unconstitutional.
16. Characterising the petition as bad-faith, an afterthought and based on personal inclinations rather than a real controversy, the Attorney General highlights that the challenged statutory framework was enacted in 2012 and has guided successive appointments without prior challenge. Additionally, they argue that the Petitioner failed to satisfy the legal standard for conservatory orders established in Gatirau Peter Munya v. Dickson Mwenda Kithinji and Nubian Rights Forum v. Attorney General .
17. Another ground is that the Petitioner demonstrated no real, imminent danger, irreparable harm, or actual infringement of rights under Article 23(3)(c).
18. Finally, the 2 nd Respondent warns that granting conservatory relief would delay filling vital monetary policy leadership roles, threaten financial stability and undermine Article 231(2) of the Constitution . It is further contended that because the recruitment process is reversible and could be quashed later if ultimately found invalid, both the Application and Petition be dismissed with costs.
19. The 3 rd Respondent, The Central Bank of Kenya filed a Replying Affidavit and Preliminary Objection in opposing the Petition and Application.
20. In the Notice of Preliminary Objection dated 24 th April 2023, the 3 rd Respondent asserts that the petition is bad in law, does not lie and should be struck out or dismissed with costs on the following grounds: -
(1 The Petition seeks to challenge the autonomy of the Central Bank of Kenya as granted by Article 231 of the Constitution of Kenya ("the Constitution").
(2 The power to enact legislation with regard to the composition, powers, functions and operations are, having been granted to Parliament by Article 231 of the Constitution to provide for the composition, powers, functions and operations of the Central Bank of Kenya ("the Bank"), and Parliament having pursuant thereto enacted the Central Bank of Kenya Cap. 491 ("the Act"), the same cannot be challenged by way of a Petition.
(3 The Petition contradicts the provisions of Articles 10 and 73(2)(a) & (b) of the Constitution which provide for the guiding principles of leadership and integrity to include selection on the basis of personal integrity, competence and suitability, as well as objectivity and impartiality in decisions making and ensuring that decisions are not influenced by inter alia favouritism and improper motives.
(4 The matters pleaded by the Petitioner are contrary to the principles of Leadership and Integrity as provided for under Chapter Six of the Constitution and more specifically the selection on the basis of personal integrity, competence and suitability and the necessity to avoid any conflict between personal interest and public official duties.
(5 The Petitioner seeks the declaration of nullity with regard to Sections 13, 13B and 13C of the Act without providing any pleading or ground therefor. In the foregoing, the Petition does not meet the threshold under Article 258 of the Constitution as there is no contravention or a threat to contravene the Constitution.
(6 The Petition, on the face of it, is an abuse of process as it does not set out with reasonable precision the constitutional violations or omissions by the 3 rd Respondent as well as the provisions of the Constitution allegedly infringed contrary to the binding precedents set out in Anarita Karimi Njeru vs. Republic [1979] eKLR and Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5 others [2013] eKLR.
21. In the Replying Affidavit dated 25 th April 2023 by Kennedy Kaunda Abuga, the General Counsel of the Central Bank of Kenya (CBK), the 3 rd Respondent opposes the Petition and highlights that the advertisement set an application deadline of 19 th April 2023, to replace the outgoing Governor and a Deputy Governor whose terms expired in June 2023.
22. He asserts that the statutory qualifications and disqualification criteria in Sections 13, 13B, 13C, and 14 of the Central Bank Act (Cap 491 ) are reasonable, proportionate and rationally connected to ensuring good governance, avoiding conflicts of interest and maintaining monetary policy independence under Article 24 and Chapter Six of the Constitution .
23. The deponent further deposes that Section 14(1)(c) rightly excludes bank officers, directors, or shareholders to prevent severe conflict of interest and contends that the Petitioner failed to plead with precision how the statutory framework or recruitment process violates constitutional rights under Articles 27, 47, 231, or 258 .
24. The deponent states that CBK neither issued a publication, the advertisement, nor is it statutorily mandated to conduct the recruitment, making the claims against the 3 rd Respondent misplaced.
25. Finally, the CBK argues that declaring Sections 13 and 13B unconstitutional would ground the operations and financial sector regulation of the CBK, thereby violating Article 231 of the Constitution . It is their contention that the Petitioner is guilty of laches by waiting until the application window expired on 19 th April 2023, before filing the petition and they prayed for the Petition to be dismissed with costs.
26. The 4 th Respondent the National Assembly filed a Replying Affidavit sworn by Mr. Samuel Njoroge, the Clerk of the National Assembly dated 17 th February 2025. The deponent opposes the Petitioner’s challenge to the constitutionality of Sections 13, 13B, 13C, and 14 of the Central Bank of Kenya (CBK) Act (Cap 491) and the Public Service Commission's advertisement dated 30 th March, 2023 affirming that the impugned provisions of the CBK Act were procedurally and legally enacted in strict accordance with the Constitution of Kenya 2010 and the Standing Orders of the National Assembly.
27. The 4 th Respondent argues that the Petition lacks the required constitutional specificity under Rule 10(2), as it fails to precisely state the infringed rights or injury caused. Further, that the Petitioner failed to exhaust available statutory remedies, such as petitioning Parliament under Article 119 to amend the law.
28. It is averred that granting the requested relief would violate the principle of constitutional avoidance and breach the separation of powers by interfering with Parliament’s exclusive legislative mandate under Article 94.
29. The National Assembly maintains that Sections 13, 13B, 13C, and 14 of the CBK Act are fully constitutional and enacted pursuant to Article 231(5). That the eligibility limitations under Section 14 are reasonable, proportionate and rationally designed to prevent conflict of interest and to ensure independent leadership.
30. It is asserted that differentials based on job requirements do not constitute illegal discrimination under Article 27 or the Employment Act, and that because the Petitioner failed to rebut the legal presumption of constitutionality, the Petition should be dismissed with costs.
31. Parties took directions to canvass the Petition and Preliminary Objection by way of written submissions which they also highlighted in Court on 18 th June 2026.
The Petitioner’s Submissions
32. The Petitioner’s Submissions on the Preliminary Objection raised by the 3 rd Respondent are dated 3 rd May 2023 stating that the 3 rd Respondent’s objection raised factual arguments rather than pure points of law, rendering it improper as a preliminary bar to jurisdiction.
33. The Petitioner argues that under Article 159 of the Constitution, courts are mandated to administer justice without undue regard to technicalities. Counsel submits that the impugned provisions suppress principles of corporate governance and national values enshrined in Article 10 of the Constitution.
34. Reliance was placed on Petition 284 of 2019 as consolidated with Petition 355 of 2019, The Senate of the Republic of Kenya & 4 others v. The Speaker of the National Assembly and another , where a three-judge bench comprising Justices Anthony Ndung’u, Ngaah Jairus, and Mumbua T. Matheka is said to have declared 23 pieces of legislation to be unconstitutional for lack of proper public participation.
35. Counsel also cited Mugure & 2 others v. Higher Education Loans Board (Petition E002 of 2021) [2022] KEHC 11951 (KLR) (Civ ), where Justice A. Mabeya is said to have quashed Section 15(2) of the HELB Act for violating Article 43(1)(e) and (f) as well as Article 27 of the Constitution by imposing interest rates exceeding the principal amount in violation of the duplum rule.
36. Regarding the court’s jurisdiction over ongoing recruitment processes, the petitioner cited Katiba Institute v. Judicial Service Commission & 2 Others and Petition No. 101 of 2011, FIDA-K & others v. Attorney General & another , emphasizing that failure to grant conservatory orders would render the main petition nugatory. The petitioner relied on Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 others [2014] and Katiba Institute v. Judicial Service Commission & 2 Others to urge the court to grant interim relief and preserve the substratum of the matter.
37. The Petitioner also filed submissions on the main petition dated 27 th June 2023. The petitioner argued that Sections 12A, 13, 13B, 13C, and 14 of the Central Bank of Kenya Act Cap 491 unfairly exclude qualified private sector professionals from recruitment, thereby violating Articles 2, 27, 41, 47, 231, and 258 of the Constitution .
38. Counsel submits that the exclusion of private-sector candidates creates an arbitrary classification that fails the test of reasonable distinction under Article 27 of the Constitution, guaranteeing equality and freedom from discrimination and Article 232 of the Constitution on values and principles of public service.
39. On the standard for non-discrimination, Counsel cited High Court Constitutional Petition 476 of 2015; The Coalition for Reforms and Democracy v. The Attorney General and 2 others , where a three-judge bench consisting of Justices P. Nyamweya, W. Okwany, and J. M. Mativo emphasized that at the heart of the prohibition of unfair discrimination lies the recognition of equal dignity and respect. The petitioner further supports the role of private sector expertise in governance by referring to persuasive foreign jurisprudence: the U.S. Supreme Court decision in Humphrey’s Executor v. United States (1935) regarding specialized expertise in independent regulatory bodies, Federal Reserve Board v. Chase National Bank (1943) on central bank independence from political influence, and Bank of Augusta v. Earle (1839). Reliance was also placed on the United Kingdom’s Bank of England Act 1998 to argue for independent, diverse governance structures free from political interference.
40. Addressing the legal standards for constitutional interpretation, the petitioner relies on Constitutional Petition 84 of 2018, Katiba Institute v. Attorney General and 2 others , E. C. Mwita J ( as he then was) affirmed that under Article 259(1) of the Constitution of Kenya, constitutional interpretation must promote purpose, values, human rights, the rule of law, and good governance, relying on Re The Matter of Interim Independent Electoral and Boundaries Commission [2011] eKLR , Mahomed v. State v. Acheson 1991, and SA SOS .
41. Counsel highlights the principle of purposive interpretation laid down by the Supreme Court of Canada in R. v. Big M Drug Mart Limited [1985] 1 SCR 295. To demonstrate the necessity of harmonious interpretation, the petitioner cites High Court Constitutional Petition 566 of 2012, Marilyn Muthoni Kamuru & 2 others v. The Attorney General & another and the decision of the Court of Appeal in Tinyefuza vs. The Attorney General Constitutional Appeal No. 1 of 1997 .
42. Lastly, Counsel contends that Sections 13 and 14(1)(c) of the Central Bank of Kenya Act Cap 491 directly contradict Section 5(2), (3), and (6) of the Employment Act as well as Sections 36 and 37 of the Public Service Commission Act , which prohibit discrimination in public recruitment processes.
The 1 st Respondent’s Submissions
43. The 1 st Respondent filed its submissions dated 1 st March 2024, made in opposition to the Petitioner’s application and Petition dated 17 th April 2023. Counsel isolated the following issues for determination: Whether Sections 13, 13B, 13C and 14 of the CBK Act are unconstitutional; Whether the 1 st Respondent violated Articles 21(1) and 27 of the Constitution by advertising for vacancies in the office of CBK Governor and Deputy Governor; and Whether the Petitioner is entitled to the reliefs sought in the Petition dated 17 th April 2023.
44. On the first issue, Counsel for the 1 st Respondent submits that the Petitioner failed to meet the pleading precision standard set in Anarita Karimi Njeru v. Republic [1979] eKLR and reaffirmed in Communications Commission of Kenya & 5 Others v. Royal Media Services Limited & 5 Others [2014] eKLR , which requires clear demonstration of the manner of constitutional violation.
45. Relying on Olum and another v. Attorney General [2002] EA, The Queen v. Big M Drug Mart Ltd (1986) and Centre for Rights Education and Awareness & another v. John Harun Mwau & 6 others [2012] eKLR , Counsel for the 1 st Respondent asserts that evaluating statutory validity requires analysing both purpose and effect. The statutory disqualifications under Section 14(1)(c) of the Central Bank of Kenya Act Cap 491 serve the legitimate object under Section 4 of the Central Bank of Kenya Act Cap 491 to regulate financial systems and prevent conflicts of interest, constituting a permissible limitation under Article 24(1) of the Constitution of Kenya 2010. Quoting Nyarangi & 3 Others v. Attorney General HCCP No. 298 of 2008 [2008] KLR 688 , Counsel maintains that the law prohibits only unfair discrimination, not reasonable restrictions justified by democratic values and public interest.
46. Counsel further contends that the impugned statutory provisions enjoy a presumption of constitutionality, as established in Ndyanabo v. Attorney General [2001] EA 495 , which the Petitioner failed to rebut. Referencing Muema Mativo v. Director of Criminal Investigation & 2 others [2021] eKLR , Jeminah Wambui Ikere v. Standard Group Ltd and Anor (Petition No. 466 of 2012) and Rapinder Kaur Atwal v. Manjit Singh Amrit (Petition No. 236 of 2011), Counsel submits that the court process cannot be used as a substitute to remedy administrative grievances without proving actual rights violations under Article 23(1) of the Constitution . Furthermore, regarding the alleged violation of Articles 21(1) and 27 of the Constitution , Counsel cites John Harun Mwau v. Independent Electoral and Boundaries Commission & Another [2013] eKLR to emphasize that establishing a constitutional breach requires proving a denial of equal protection rather than mere differentiation. Consequently, Counsel submits that the recruitment advertisement was lawfully conducted pursuant to its mandate, praying for the petition to be dismissed with costs.
The 2 nd Respondent’s Submissions
47. The 2 nd Respondent’s written submissions on the petition are dated 31 st January 2024. The Petitioner sought a declaration that Sections 13, 13B, 13C, and 14 of the Central Bank of Kenya Act Cap 491 are unconstitutional for violating Articles 27, 41, and 47 of the Constitution . Counsel isolated one issue for determination being: the constitutionality of the impugned provisions as alleged in the petitioner’s pleadings.
48. Counsel for the 2 nd Respondent submits that under Article 259 of the Constitution , constitutional interpretation must promote values, principles, human rights, and the rule of law, while Article 159(2)(e) of the Constitution of Kenya 2010 mandates the court to protect and promote these principles. He relied on Center for Rights Education and Awareness & 2 others v. John Harun Mwau & 6 others [2012] eKLR , and emphasized that every Act of Parliament carries a presumption of constitutionality, requiring a holistic, purposive reading of the statutory object and effect. To reinforce this presumption, Counsel cites the Indian Supreme Court decision in Hamdard Dawakhana & Anor v. The Union of India & Others (1960), where it was held that legislatures enact laws based on experience and common knowledge to address public needs. Relying on Federation of Women Lawyers Kenya (FIDA) v. Attorney General & another [2018] eKLR, Counsel stresses that all relevant constitutional provisions must be interpreted together to fulfil the greater purpose of the Constitution.
49. Addressing the equality claim under Article 27 of the Constitution Counsel submits that mere inequality of treatment or differentiation does not constitute unconstitutional discrimination unless it is arbitrary and lacks a rational connection to a legitimate statutory goal. Relying on Nyarangi & Others v. Attorney General [2008] KLR 688 , which cited the US Supreme Court case Griggs v. Duke Power Company (1971) , Counsel highlights the legal distinction between direct and indirect discrimination.
50. Counsel for the 2 nd Respondent further cites Kedar Nath v. State of West Bengal (1953) and John Harun Mwau v. Independent Electoral and Boundaries Commission & Another [2013] eKLR to argue that statutory differentiation requires proof of an unreasonable denial of equal benefit. Utilizing the three-pronged test formulated in Nelson Andayi Havi v. Law Society of Kenya & 3 Others (2018) eKLR , Counsel maintains that the qualifications and disqualifications in Sections 13, 13B, 13C, and 14 of the Central Bank of Kenya Act Cap 491 align with Section 4 of the Central Bank of Kenya Act Cap 491 to prevent conflicts of interest and preserve leadership integrity as mandated by Article 73(2) of the Constitution.
51. Lastly, Counsel for the 2 nd Respondent contends that the Petitioner failed to demonstrate how Articles 41 and 47 of the Constitution were violated, praying for the dismissal of the Petition.
The 3 rd Respondent’s Submissions
52. In its written submissions dated 28 th April 2023, filed in support of its Preliminary Objection dated 24 th April 2023, the 3 rd Respondent the Central Bank of Kenya asks the Court to dismiss the Petition on the grounds that it fails to disclose any constitutional violation with precision and violates the presumption of constitutionality accorded to statutes. Counsel for the 3 rd Respondent highlights that under Article 231(5) of the Constitution , Parliament was given the explicit mandate to enact legislation providing for the composition, powers, functions and operations of the Central Bank of Kenya. That inn line with this mandate, Parliament enacted the Central Bank of Kenya Act (Cap. 491), establishing the qualifications and disqualifications for the positions of Governor, Deputy Governor and Board Members under Sections 13, 13B, 13C, and 14(1)(c) of the Central Bank of Kenya Act.
53. Counsel emphasizes that the Petitioner fails to demonstrate with reasonable precision how these provisions infringe upon Article 27 of the Constitution on equality and freedom from discrimination, Article 41 on fair labour practices or Article 47 on fair administrative action, relying on the precedent set in Anarita Karimi Njeru v. Republic (No. 1) [1979] KLR 154 and Mumo Matemu v. Trusted Society of Human Rights Alliance & Society [2013] eKLR , which require constitutional claims to be pleaded with high specificity.
54. Counsel submits that statutory enactments enjoy a rebuttable presumption of constitutionality, as established in Ndyanabo v. Attorney General [2001] EA 485 , meaning the onus rests entirely on the Petitioner to prove unconstitutionality. Counsel for the 3 rd Respondent contends that Section 14(1)(c) of the Central Bank of Kenya Act which disqualifies directors, officers, employees, partners, or shareholders of specified financial institutions from serving as Governor, Deputy Governor, or Director is aligned with Article 73(2)(a) of the Constitution on avoidance of conflict of interest and Section 16 of the Leadership and Integrity Act (No. 19 of 2012).
55. Reaffirming the central role of the Central Bank as the licensing authority and regulator for banks under Section 4 of the Banking Act (Cap. 488), Counsel argues that avoiding conflict of interest is essential to maintaining institutional integrity and public trust under Article 10(2)(d) of the Constitution . Counsel further maintains that the Petitioner cannot directly challenge Article 80 of the Constitution or the validity of constitutional provisions, relying on Attorney General & another v. Andrew Kiplimo Sang Muge & 2 others [2017] eKLR , which affirms that the Constitution is the supreme law and its provisions cannot be challenged before any court. Finally, relying on Article 259(1)(a) of the Constitution , Counsel concludes that the Petition constitutes an abuse of process and should be dismissed with costs.
56. In their submissions dated 17 th September 2025 on the main Petition and the Notice of Motion Application, Counsel submits that the Petition lacks specificity, discloses no cause of action against the Bank and has been rendered academic and moot. Counsel points out that the advertisement dated 30 th March 2023, issued by the 1 st Respondent (Public Service Commission) for the positions of Governor and Deputy Governor, had already achieved its purpose, leading to appointments published via Gazette Notice:Vol. CXXV – No. 134 dated 13 th June2023.
57. Applying the principles from Kenya National Examinations Council v. Republic ex parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR, Counsel submits that reviewing or quashing an advertisement that has already been fully executed would be an exercise in futility. Additionally, the 3 rd Respondent asserts that it was neither responsible for publishing the advertisement nor mandated to undertake the recruitment, as recruitment falls under the mandate of the Public Service Commission.
58. On the merits of the statutory challenge, Counsel submits that the Petitioner failed to displace the presumption of constitutional validity attached to Sections 13, 13B, 13C, and 14 of the Central Bank of Kenya Act (Cap. 491) . He cited Law Society of Kenya v. Attorney General & another (Petition 4 of 2019) [2019] KESC 16 (KLR) and the Indian Supreme Court decision in Hamdard Dawakhana Keshava v. Union of India and Others (1960 AIR 554), and reiterated that courts must presume statutes to be constitutional unless convincing evidence is presented to the contrary.
59. Counsel highlights that any limitation imposed by Section 14(1) of the Central Bank of Kenya Act satisfies the proportionality and reasonableness tests under Article 24(1) o
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