Brief Facts
1. The petition dated 22 nd November 2022 is supported by the petitioners’ affidavit of even date.
2. The petition challenges the nomination and appointment process of the Principal Secretaries for failing to meet the two thirds-gender rule.
3. The matter was scheduled for delivery of judgment but on careful assessment, the court came across unresolved jurisdictional tension over the matter with the ELRC Court which is/was handling identical matters whose decisions went to the Court of Appeal after it asserted jurisdiction over the same. By the time of this ruling the jurisdiction tension had not been resolved by the Court of Appeal. This Court thus decided deliver a ruling instead of a judgment with a view to preserving the matter instead of conclusively determining it.
The Petitioners’ Case
4. The petitioners aver that on 7 th September 2022, the Public Service Commission advertised Principal Secretary positions and published a shortlist of 477 applicants on 7 th October 2022 but the next day revoked that list and replaced it with a list of 585 shortlisted applicants . The Public Service Commission
claimed that it was necessary to revise the list to ‘include gender, marginalised and minority groups, the youth and persons living with disability’ so that they also be considered. The Public Service Commission published an interview schedule for the 585 shortlisted candidates and conducted the interviews between 12 th and 22 nd October, 2022.
5. After completing the interviews, the Public Service Commission sent a list of 250 candidates to the President for consideration as widely reported in the media. However, the Public Service Commission did not publish the list in the mainstream media or make it accessible on its website.
6. On 2 nd November 2022, the Executive Office of the President published the president’s list of 51 nominees for Principal Secretary positions. Of the 51 nominees, only 12 were women. There were 39 men resulting hence the nomination list was 76% male and 24% female.
7. The petitioners further disclosed that the Law Society of Kenya filed a petition against the respondents in the Employment and Labour Relations Court, being ELRC PET E192 of 2022. On 14 th November the ELRC Court issued an order restraining the National Assembly from considering the nominees pending a hearing on 21 st November 2022 and on 15 th November, the Attorney General filed a notice of appeal against the order.
8. The petitioners argue that the president violated Article 27(8) by selecting nominees for Principal Secretary positions that did not comply with the requirement that no more than two thirds of the members of appointive bodies be of the same gender.
9. The further avers that the violation of Article 27(9) is a concomitant violation of Articles 1(3), 10(1) & (2), 19(1), (2) & (3), 20(1), 21(1), (2) & (3), 129(1) and 131(a) & (e). Further the president violated Article 27(6) by failing to redress historical disadvantages suffered by women when selecting its nominees for Principal Secretary positions. As the National Assembly has initiated the approval process, there is a risk that it will violate Articles 1(3)(a), 94(1) and 94(4) of the Constitution and Section 7 of the Parliamentary Appointments (Parliamentary Approval) Act . The Speaker of the National Assembly violated Article 27(8) by accepting the notification from the president and beginning the approval process for the nominees even though the list of nominees did not comply with the two thirds gender principle. The Public Service Commission violated Article 35(3) of the Constitution and Section 5(1) of the Access to Information Act by failing to publish and publicise the names of the 250 individuals forwarded to the president as potential nominees for the Principal Secretary positions. The public Service Commission violated the values and principles of governance, including the values and principles of transparency and accountability by failing to disclose the 250 candidates sent to the president.
The 1 st Respondent’s Case
10. The 1 st respondent states that the petitioners have not demonstrated before the court how it has violated their constitutional rights. Further, the 1 st respondent contends that the question of the appointment of the 51 interested parties as Principal Secretaries is the subject of an ongoing appeal at the Court of Appeal in Nairobi vide Civil Appeal No. E722 of 2023 Dr. Magare Gikenyi vs AG & Others seeking to challenge the ruling of the Employment & Labour Relations Court in Nairobi ELRC Petition E207 of 2022 Dr. Magare Gikenyi vs AG & Others.
That notwithstanding, the Employment and Labour Relations Court in Nairobi ELRC Petition No. E207 of 2022 Dr. Magare Gikenyi vs AG & Others, determined the question of jurisdiction on matters touching on the appointment of Principal Secretaries where the court held that the ELRC has jurisdiction to hear the instant petition.
11. The 1 st respondent argues that the issues raised including the alleged failure to comply with the two thirds gender rule are sub judice as the same were canvassed in the consolidated ELRC Petition E207 of 2022. Thus, it would be irregular and an abuse of the judicial system for the instant petition to proceed when the issues raised in it are currently up for determination before the Court of Appeal.
12. The 1 st respondent contends that the petition is moot and has been overtaken by events as the President, pursuant to Article 155(3) and (4) of the Constitution , on 20 th March 2025 as evidenced in the Executive Order No. 1 of 2025, reorganized and restricted the National Executive by nominating a number of persons for appointment to the ranks of Principal Secretaries and reshuffling the Principal Secretaries to 57 out of which seventeen (17) are women translating to 29.82% female representatives effectively meeting the 30% threshold, thus adhering to the two thirds gender principle.
13. The 1 st respondent argues that under Article 155(1) of the Constitution , the office of the Principal Secretary is established as an office in the public service. Therefore, by dint of Article 155(1) and (2) of the Constitution , the two thirds gender parity principle should be considered in the context of either the public service taken as a whole or a given state department in
particular. Thus, the burden is upon the petitioners to demonstrate that the composition of the entire public service or a given state department does not meet the two thirds gender principle, which burden has not been discharged in the instant petition.
The 2 nd Respondent’s Case
14. Remmy N. Mulati MBS the Acting Commission Secretary/CEO of the Public Service Commission swore the affidavit on behalf of the 2 nd respondent and states that in pursuant to Articles 10, 232 and 233(1) of the Constitution , Section 47 of the Public Service Commission Act and Regulation 26 of the Public Service Commission Regulations 2020 , the commission invited applications from suitable and qualified members of the public to submit their applications for consideration for recommendation for appointment as Principal Secretary vide Gazette Notice No. 10536 Vol. CXXIV-No. 180 of 7 th September 2022. The said advertisement closed on 20 th September 2022. However, due to the public interest attached to the position of Principal Secretary, on 21 st September 2022, the commission extended the advert for a further 7 days.
15. On 6 th October 2022, the commission issued a press statement regarding the selection process following the conclusion of the shortlisting process. On 7 th October 2022, the commission published in the print and electronic media, the names of the 477 shortlisted candidates for the position of Principal Secretary. In the same publication, members of the public were invited to avail any credible information of interest relating to any of the shortlisted candidates to the Secretary/CEO of the Commission or online through psinterviews22@publicservice.go.ke so as to be received on or before 11 th
October 2022. On 8 th October 2022, the commission reviewed the number of shortlisted candidates in order to deepen inclusivity with regard to gender, the marginalised and minority groups, the youth and persons living with disability in accordance with Article 232(1)(h) of the Constitution and consequently cancelled the earlier shortlist published on 7 th October 2022.
16. The deponent reveals that on 8 th October 2022, the commission published in print and electronic media, the names of 585 reviewed shortlisted candidates for the position of Principal Secretary and members of the public were invited to avail any credible information of interest relating to any of the shortlisted candidates to the Secretary/CEO of the Commission or online through psinterviews22@publicservice.go.ke so as to be received on or before 11 th October 2022. After the publication of the reviewed list of the shortlisted candidates, the commission scheduled the interview which took place between 12 th and 22 nd October 2022. After the interview the commission submitted to His Excellency the President a list of the recommended nominees for appointment as Principal Secretaries paying attention to inclusivity in terms of gender, the diverse communities, persons with disabilities and the youth. The deponent argues that the commission duly discharged its constitutional and statutory duty as required under Article 155(3)(a) of the Constitution as read with Section 47 of the PSC Act and Regulation 26 of the PSC Regulations . Thus, there is no proper justification for the process to be initiated a fresh in the manner sought by the petitioners.
17. The deponent avers that the instant petition is res judicata because a similar petition had been filed at Nairobi being ELRC Petition No. E207 of 2022 Dr. Magare Gikenyi J. Benjamin vs The Hon. Attorney General & 54 Others which was struck out on 27 th April 2023 by Byram Ongaya J . Being aggrieved with the said ruling, Dr. Magare moved the Court of Appeal at Nairobi vide Civil Appeal No. E722 of 2023 which was heard on 7 th May 2024 and a judgment reserved for 26 th July 2024.
18. The petition was disposed of by way of written submissions.
Petitioners’ Submissions
19. The petitioners identified three issues for determination as follows: whether the respondents, in considering and appointing the interested parties as principal secretaries violated Articles 27(6) and 27(8) of the Constitution , whether the respondents in appointing the interested parties as principal secretaries violated Articles 10 and 232 of the Constitution that establishes a value based society and whether the respondents, in appointing the interested parties as principal secretaries violated Article 35 of the Constitution and the Access to Information Act.
20. The petitioners maintained that Article 20(3) of the Constitution requires that when applying a provision of the Bill of Rights, a court shall adopt an interpretation favouring the enforcement of a right or fundamental freedom. Further Article 259(1) requires that the Constitution be interpreted to promote its purposes, values and principles and advance the rule of law, human rights and fundamental freedoms in the Bill of Rights. Reliance was placed in the case of In the Matter of the Kenya National Commission on Human Rights, Supreme Court Advisory Opinion Reference No. 1 of 2012; [2014] eKLR , where the court held:-
But what is meant by a holistic interpretation of the Constitution? It must mean interpreting the Constitution in context. It is a contextual analysis of a constitutional provision, reading it alongside and against other provisions so as to maintain a rational explication of what the constitution must be taken to mean in the light of its history, of the issues in dispute and of the prevailing circumstances.
21. The petitioners further affirmed that the values in the constitution have been described as the intestinal fluid which nourishes the Bill of Rights and the constitution, which therefore imposes an obligation on courts to avoid a structural minimalist approach, but it should in the performance of its judicial function, espouse the value system in the constitution. Reliance was placed in the case of George Bala vs Attorney General [2017] eKLR where the court echoed the same view that the interpretation and application of the constitution by the judiciary must therefore not be a mechanical one but must be guided by the spirit and the soul of the constitution itself as ingrained in the national values and principles of governance espoused in the preamble and among other things Article 10 of the Constitution. They further called for a purposive interpretation that promotes the constitution’s purposes, values and aspirations in considering the instant dispute.
22. On the issue of violation of the gender equality principle, the petitioners cited Articles 27(6) & (8) and 232 of the Constitution and argued that the said provisions were inserted in the constitution to promote equality and affirmative action after the Kenyan people recognised the lack of representation of women in both elective and appointive bodies. They further argued that the president’s nomination and parliament’s inability to correct his short-sighted decision tacitly reinforce the insidious stereotypes that impede women’s access to political office in Kenya, stereotypes that are damaging to the psyche of Kenyan women and their conceptions of identity and personhood. To buttress that point, reliance was placed on the case of Marilyn Muthoni Kamuru & Others vs Attorney General & Another [2016] eKLR where the court held:-
It is in that spirit that Article 27(8) imposes upon the State the obligation to redress gender disadvantage by enacting laws that may be needed and also undertaking other measures including affirmative action that would ensure women are needed to redress any inequality that may manifest.
Article 27(8) enjoins the State to be proactive and that may be achieved not just through legislation but through appointments as the Article itself dictates.
With that understanding in mind, and having stated that the cabinet is a State organ within the context and meaning of Article 260 of the Constitution, it follows that Article 27(8) of the Constitution is applicable to the cabinet.
I would therefore agree that Article 27(8), especially as far as the appointive positions are concerned, should be realised immediately in contrary to the submissions of Mr. Njoroge.
The right to human dignity is the foundation of all other rights and together with the right to life, it forms the basis for the enjoyment of all other rights. Put differently, if a person enjoys the other rights in the Bill of Rights, the right to human dignity will automatically be promoted and protected while it will be violated if the other rights are violated. In the circumstances, and as a consequence of the violation of Article 27(8) of the Constitution, the petitioners’ right to dignity has been violated.
23. Further reliance was placed in the case of Centre for Rights Education & Awareness (CREW) & 8 Others vs Attorney General & Another Petition 207 & 208 of 2012 consolidated with JR. Misc Application No. 2012 where the court stated:-
In matters of appointment or election to office in order to achieve gender equality and equity, there is no qualification of the state’s obligation as there is no outlay of resources required and which is shown to limit or inhibit the realisation of this right. This is particularly so in a scenario such as the one before the court where, on the respondents' own admission, there are at least another 16 female District Commissioners with the requisite qualifications to meet the criteria that the respondents had set for appointment as County Commissioners. There is really no justification or explanation for the president’s failure to observe the requirements of Article 27(8). The appointments or deployments whatever term is used, assuming that the president had power to make them, fail the test of constitutionality by disregarding the national values and principles set out at Article 10(b) and the principle contained in Article 27(8) of the Constitution.
24. Contrary to the above caselaw, the petitioners argued that of the 51 principal secretaries’ nominees selected by the president, only 12 were women and 39 men, resulting in the nomination list that is 76% male and 24% female. Thus the failure of the National Assembly to decline to consider and approve the nominees who did not meet the two thirds gender rule is in total disregard of the constitution. Further, the Speaker of the National Assembly violated Article 27(8) by accepting the notification from the president and beginning the approval process for the nominees even though the list did not comply with the two thirds gender principle. The speaker’s violation of Article 27(8) is a concomitant violation of Articles 1(3), 10(1) & (2), 19(1), (2) & (3), 20(1), 21(1), (2) & (3) and 94(4) of the Constitution . The president violated Article 27(8) by selecting nominees for principal secretary positions that did not comply with the two thirds gender the requirement and Article 27(6) by failing to redress historical disadvantages suffered by women when selecting his nominees for the said positions. The violation of Article 27(6) and (8) is a concomitant violation of Articles 1(3), 10(1) & (2), 19(1), (2) & (3), 20(1), 21(1), (2) & (3), 129(1) and 131(a) and (e) of the Constitution.
25. The petitioners submitted that the objective normative value-based system established in the constitution was not an accident but was Kenyan’s reaction to the unchecked powers vested in the executive branch. They envisioned a society founded on values and principles as seen in Article 10 of the Constitution. Reliance was placed in the case of Trusted Society of Human
Rights Alliance vs The Attorney General & 2 Others Petition No. 229 of 2012 where the court held:-
The people of Kenya did not intend that these provisions be merely suggestions, superfluous or ornamental; they did not intend to include these provisions as lofty aspirations. Kenyans intended that the said provisions should have substantive bite and that they will be enforced and implemented. They desired these values and principles be put into practice. It follows, therefore, that all state organs, state officers, public officers and all persons whenever any of them applies or interprets the constitution, enacts, applies or intercepts any laws or makes or implements public policy decisions must refer to Article 10 of the Constitution.
26. By entrenching the values of transparency and accountability in the constitution, Kenyans wanted to move from a society founded on secrecy to one that is open and accountable. To buttress that point, reliance was placed in the decision of Samura Engineering Ltd & Others vs Kenya Revenue Authority Nairobi Petition No. 54 of 2011 where Majanja J noted that “ by placing the values of rule of law, good governance, transparency and accountability at the centre of the constitution, we must now embrace the culture of justification which requires that every official act must find its locus in law and underpinning in the constitution .”
27. The petitioners submitted that the values must guide the state and its state organs even when making public appointments or recruitment. Reliance was placed in the case of Community Advocacy and Awareness Trust and Others vs Attorney General Nairobi Petition No. 243 of 2011 where the court held:-
27 August 2010 ushered in a new regime of appointments to public office. Whereas the past was characterized by open corruption, tribalism, nepotism, favouritism, scrapping the barrel and political patronage, the new dispensation requires a break from the past. The constitution signifies the end of the ‘jobs for the boys’ era. Article 10 sets out the values that must be infused in every decision making process including that of making appointments.
28. Further reliance was placed on the case of Consumer Federation of Kenya (COFEK) vs Attorney General & 2 Others [2012] eKLR where the court held:-
These values and principles provide a foundation upon which Kenyans have determined that our democratic state shall be built; they are the intestinal fluid which nourishes the bill of rights and the constitution. Thus when making appointments to public office, every selecting, appointing and nominating authority must take into account these values and principles.
29. The petitioners argued that the respondents violated Article 10 of the Constitution by the Public Service Commission failing to publish and publicise the names of the 250 individuals forwarded to the president as potential nominees; failure to publish important information about the nation and failure to publish the names of those recommended to the president as potential nominees for the principal secretary positions. Similarly, the Public Service Commission violated Section 4 of the Public Service Commission Act and Section 8 of the Public Service Values and Principals Act which addresses the requirement that public officers be transparent and provide information timely and accurately.
30. On the final issue, the petitioners cited Article 35 of the Constitution, Section 5(1) of the Access to Information Act and the case of Mercy Nyawade vs Banking Fraud Investigations Department & 2 Others
[2017] eKLR and submitted that Article 35 must not be constrained by narrow interpretation. The court rendered itself:-
In line with the dictates of the Constitution, this court will reject the narrow, literal reading of the above provisions and opt for a construction that promotes wider access to information.
31. The petitioners relied on the case of President of the Republic of South Africa vs M & G Media (no citation given) where the court recognised the right to access information is necessary for the realization of other rights. It held:-
The right of access to information is also crucial to the realization of other rights in the Bill of Rights. The right to receive or impart information or ideas, for example, is dependent on it. In a democratic society such as our own, the effective exercise of the right to vote also depends on the right of access to information.
32. Further reliance was placed in the case of Brummer vs Minister for Social Development & Others CCT 25/09 [2009] ZACC 21;2009 where the court stated:-
Apart from this, access to information is fundamental to the realization of the rights guaranteed in the Bill of Rights. For example, access to information is crucial to the right to freedom of expression which includes
freedom of the press and other media and freedom to receive or impart information or ideas.
33. The petitioners submitted that the right to access information encompasses a duty on state bodies to proactively disclose information. Information such as the one in the instant petition was necessary for the public to know the people recommended for appointment, people who were going to occupy public offices
held in trust by the people. Further, the information was necessary for the people to ensure that those who had been recommended for appointment owe their appointment to their qualifications rather than cronyism, which more often than not leads to undesired practices such a corruption. Reliance was placed in the case of Nairobi Law Monthly Company Limited vs Kenya Electricity Generating Company & 2 Others [2013] eKLR where the court stated:-
The second consideration to bear in mind is that the right to information implies the entitlement by the citizen to information, but it also imposes a duty on the State with regard to provision of information. Thus the State has a duty not only to proactively publish information in the public interest. This I believe is the import of Article 35(3) of the Constitution which imposes an obligation on the State to publish and publicise any important information affecting the nation.
34. The petitioners submitted that the Public Service Commission violated Article 35 of the Constitution , Section 5 of the Access to Information Act , Section 4 of the Public Service Commission Act and Section 8 of the Public Service Values and Principals Act by failing to publish and publicise the names of the 250 individuals forwarded to the president as potential nominees for the principal secretary positions.
35. On the issue of relief to be granted, the petitioners argued that an appropriate remedy must mean an effective remedy. Reliance was placed in the case of Fose vs Minister of Safety and Security (no citation given) where the court held:-
In our context, an appropriate remedy must mean an effective remedy, for without effective remedies for breach, the values underlying the rights entrenched in the constitution cannot properly be upheld or enhanced. Particularly in a country where so few have the means to enforce their legal rights through courts, it is essential that on those occasions when the legal process does establish that an infringement of an entrenched right has occurred, it be effectively vindicated. The courts have a particular responsibility in this regard and are obliged to forge new tools and shape innovative remedies if needs be, to achieve this goal.
36. The petitioners further submitted that the court is not bound by the remedies requested in the petition nor the remedies provided under Article 23 of the Constitution. The court has the power to formulate a new remedy, a position endorsed by the Supreme Court when it granted a structural interdict in Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 others Petition No. 14, 14A, 14B & 14C of 2014 Mitu-Bell Welfare Society vs Kenya Airports Authority & 2 Others; Initiative for Strategic Litigation in Africa (Amicus Curiae) (Petition 3 of 2018) [2019] KESC 34 (KLR) .
The 1 st Respondent’s Submissions
37. The 1 st respondent identified four issues for determination as follows; whether the petition is caught by the doctrine of sub judice ; whether this Honourable Court has jurisdiction to determine the subject matter of the petition; whether the petition is moot and what is the legal propriety of the petition in light of the provisions of Article 155(1) and (2) of the Constitution . On the first issue, the 1 st respondent submitted that the issues raised in the current petition was a live issue in Nairobi ELRC Petition E207 of 2022 filed in public interest and the judgment in that petition is pending appeal before the Court of Appeal in Nairobi Civil Appeal No. E722 of 2023 Thus, the present petition is caught by the doctrine of sub judice pursuant to Section 6 of the Civil Procedure Act and must down its tools. Reliance was placed in the case of Kenya National Commission on Human Rights vs Attorney General; Independent
Electoral & Boundaries Commission & 16 Others (Interested Parties) [2020] eKLR where the court held:
The purpose of the sub judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res sub judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.
38. The 1 st respondent argued that on account of having established that the instant petition is sub judice , thereby amounting to abuse of the court process, the right remedy in the circumstances is a dismissal order. Reliance was placed in the case of Gathariki vs Cheko Plot Owners Association & Another (Civil Appeal 116 of 2019) [2025] KECA 313 (KLR) (21 February 2025) (Judgment) where the court held:-
Even though Section 6 of the Civil Procedure Act provides for stay of subsequent suits, the learned judge dismissed the suit for being an abuse of court process. The question is whether the learned judge erred in so finding. We do not think so. The practice of litigants filing parallel proceedings seeking similar or substantially similar orders arising from the same set of facts and circumstances should be abhorred for obvious reasons. One consequence of the said practice is that it amounts to abuse of court process. As was held by the High Court in Graham Rioba Sagwe & Others vs Fina Bank Limited & 3 Others [2017] eKLR the court has inherent jurisdiction to protect itself from abuse or to see that its process is not abused. The Black’s Law Dictionary, 10 th Edition defines abuse of process as inter alia a wrongful process of law. The situations that may give rise to abuse of court process are inexhaustive. It involves situations where the process of court has not been resorted to fairly, properly, honestly to the detriment of the other party. The High Court in Graham Rioba Sagwe & Others vs Fina Bank Limited & 3 Others [2017] eKLR provided the following examples which constitute abuse of the court process:
a) Instituting a multiplicity of actions on the same subject matter against the same opponent, on the same issues or multiplic
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1. The petition dated 22 nd November 2022 is supported by the petitioners’ affidavit of even date.
2. The petition challenges the nomination and appointment process of the Principal Secretaries for failing to meet the two thirds-gender rule.
3. The matter was scheduled for delivery of judgment but on careful assessment, the court came across unresolved jurisdictional tension over the matter with the ELRC Court which is/was handling identical matters whose decisions went to the Court of Appeal after it asserted jurisdiction over the same. By the time of this ruling the jurisdiction tension had not been resolved by the Court of Appeal. This Court thus decided deliver a ruling instead of a judgment with a view to preserving the matter instead of conclusively determining it.
The Petitioners’ Case
4. The petitioners aver that on 7 th September 2022, the Public Service Commission advertised Principal Secretary positions and published a shortlist of 477 applicants on 7 th October 2022 but the next day revoked that list and replaced it with a list of 585 shortlisted applicants . The Public Service Commission
claimed that it was necessary to revise the list to ‘include gender, marginalised and minority groups, the youth and persons living with disability’ so that they also be considered. The Public Service Commission published an interview schedule for the 585 shortlisted candidates and conducted the interviews between 12 th and 22 nd October, 2022.
5. After completing the interviews, the Public Service Commission sent a list of 250 candidates to the President for consideration as widely reported in the media. However, the Public Service Commission did not publish the list in the mainstream media or make it accessible on its website.
6. On 2 nd November 2022, the Executive Office of the President published the president’s list of 51 nominees for Principal Secretary positions. Of the 51 nominees, only 12 were women. There were 39 men resulting hence the nomination list was 76% male and 24% female.
7. The petitioners further disclosed that the Law Society of Kenya filed a petition against the respondents in the Employment and Labour Relations Court, being ELRC PET E192 of 2022. On 14 th November the ELRC Court issued an order restraining the National Assembly from considering the nominees pending a hearing on 21 st November 2022 and on 15 th November, the Attorney General filed a notice of appeal against the order.
8. The petitioners argue that the president violated Article 27(8) by selecting nominees for Principal Secretary positions that did not comply with the requirement that no more than two thirds of the members of appointive bodies be of the same gender.
9. The further avers that the violation of Article 27(9) is a concomitant violation of Articles 1(3), 10(1) & (2), 19(1), (2) & (3), 20(1), 21(1), (2) & (3), 129(1) and 131(a) & (e). Further the president violated Article 27(6) by failing to redress historical disadvantages suffered by women when selecting its nominees for Principal Secretary positions. As the National Assembly has initiated the approval process, there is a risk that it will violate Articles 1(3)(a), 94(1) and 94(4) of the Constitution and Section 7 of the Parliamentary Appointments (Parliamentary Approval) Act . The Speaker of the National Assembly violated Article 27(8) by accepting the notification from the president and beginning the approval process for the nominees even though the list of nominees did not comply with the two thirds gender principle. The Public Service Commission violated Article 35(3) of the Constitution and Section 5(1) of the Access to Information Act by failing to publish and publicise the names of the 250 individuals forwarded to the president as potential nominees for the Principal Secretary positions. The public Service Commission violated the values and principles of governance, including the values and principles of transparency and accountability by failing to disclose the 250 candidates sent to the president.
The 1 st Respondent’s Case
10. The 1 st respondent states that the petitioners have not demonstrated before the court how it has violated their constitutional rights. Further, the 1 st respondent contends that the question of the appointment of the 51 interested parties as Principal Secretaries is the subject of an ongoing appeal at the Court of Appeal in Nairobi vide Civil Appeal No. E722 of 2023 Dr. Magare Gikenyi vs AG & Others seeking to challenge the ruling of the Employment & Labour Relations Court in Nairobi ELRC Petition E207 of 2022 Dr. Magare Gikenyi vs AG & Others.
That notwithstanding, the Employment and Labour Relations Court in Nairobi ELRC Petition No. E207 of 2022 Dr. Magare Gikenyi vs AG & Others, determined the question of jurisdiction on matters touching on the appointment of Principal Secretaries where the court held that the ELRC has jurisdiction to hear the instant petition.
11. The 1 st respondent argues that the issues raised including the alleged failure to comply with the two thirds gender rule are sub judice as the same were canvassed in the consolidated ELRC Petition E207 of 2022. Thus, it would be irregular and an abuse of the judicial system for the instant petition to proceed when the issues raised in it are currently up for determination before the Court of Appeal.
12. The 1 st respondent contends that the petition is moot and has been overtaken by events as the President, pursuant to Article 155(3) and (4) of the Constitution , on 20 th March 2025 as evidenced in the Executive Order No. 1 of 2025, reorganized and restricted the National Executive by nominating a number of persons for appointment to the ranks of Principal Secretaries and reshuffling the Principal Secretaries to 57 out of which seventeen (17) are women translating to 29.82% female representatives effectively meeting the 30% threshold, thus adhering to the two thirds gender principle.
13. The 1 st respondent argues that under Article 155(1) of the Constitution , the office of the Principal Secretary is established as an office in the public service. Therefore, by dint of Article 155(1) and (2) of the Constitution , the two thirds gender parity principle should be considered in the context of either the public service taken as a whole or a given state department in
particular. Thus, the burden is upon the petitioners to demonstrate that the composition of the entire public service or a given state department does not meet the two thirds gender principle, which burden has not been discharged in the instant petition.
The 2 nd Respondent’s Case
14. Remmy N. Mulati MBS the Acting Commission Secretary/CEO of the Public Service Commission swore the affidavit on behalf of the 2 nd respondent and states that in pursuant to Articles 10, 232 and 233(1) of the Constitution , Section 47 of the Public Service Commission Act and Regulation 26 of the Public Service Commission Regulations 2020 , the commission invited applications from suitable and qualified members of the public to submit their applications for consideration for recommendation for appointment as Principal Secretary vide Gazette Notice No. 10536 Vol. CXXIV-No. 180 of 7 th September 2022. The said advertisement closed on 20 th September 2022. However, due to the public interest attached to the position of Principal Secretary, on 21 st September 2022, the commission extended the advert for a further 7 days.
15. On 6 th October 2022, the commission issued a press statement regarding the selection process following the conclusion of the shortlisting process. On 7 th October 2022, the commission published in the print and electronic media, the names of the 477 shortlisted candidates for the position of Principal Secretary. In the same publication, members of the public were invited to avail any credible information of interest relating to any of the shortlisted candidates to the Secretary/CEO of the Commission or online through psinterviews22@publicservice.go.ke so as to be received on or before 11 th
October 2022. On 8 th October 2022, the commission reviewed the number of shortlisted candidates in order to deepen inclusivity with regard to gender, the marginalised and minority groups, the youth and persons living with disability in accordance with Article 232(1)(h) of the Constitution and consequently cancelled the earlier shortlist published on 7 th October 2022.
16. The deponent reveals that on 8 th October 2022, the commission published in print and electronic media, the names of 585 reviewed shortlisted candidates for the position of Principal Secretary and members of the public were invited to avail any credible information of interest relating to any of the shortlisted candidates to the Secretary/CEO of the Commission or online through psinterviews22@publicservice.go.ke so as to be received on or before 11 th October 2022. After the publication of the reviewed list of the shortlisted candidates, the commission scheduled the interview which took place between 12 th and 22 nd October 2022. After the interview the commission submitted to His Excellency the President a list of the recommended nominees for appointment as Principal Secretaries paying attention to inclusivity in terms of gender, the diverse communities, persons with disabilities and the youth. The deponent argues that the commission duly discharged its constitutional and statutory duty as required under Article 155(3)(a) of the Constitution as read with Section 47 of the PSC Act and Regulation 26 of the PSC Regulations . Thus, there is no proper justification for the process to be initiated a fresh in the manner sought by the petitioners.
17. The deponent avers that the instant petition is res judicata because a similar petition had been filed at Nairobi being ELRC Petition No. E207 of 2022 Dr. Magare Gikenyi J. Benjamin vs The Hon. Attorney General & 54 Others which was struck out on 27 th April 2023 by Byram Ongaya J . Being aggrieved with the said ruling, Dr. Magare moved the Court of Appeal at Nairobi vide Civil Appeal No. E722 of 2023 which was heard on 7 th May 2024 and a judgment reserved for 26 th July 2024.
18. The petition was disposed of by way of written submissions.
Petitioners’ Submissions
19. The petitioners identified three issues for determination as follows: whether the respondents, in considering and appointing the interested parties as principal secretaries violated Articles 27(6) and 27(8) of the Constitution , whether the respondents in appointing the interested parties as principal secretaries violated Articles 10 and 232 of the Constitution that establishes a value based society and whether the respondents, in appointing the interested parties as principal secretaries violated Article 35 of the Constitution and the Access to Information Act.
20. The petitioners maintained that Article 20(3) of the Constitution requires that when applying a provision of the Bill of Rights, a court shall adopt an interpretation favouring the enforcement of a right or fundamental freedom. Further Article 259(1) requires that the Constitution be interpreted to promote its purposes, values and principles and advance the rule of law, human rights and fundamental freedoms in the Bill of Rights. Reliance was placed in the case of In the Matter of the Kenya National Commission on Human Rights, Supreme Court Advisory Opinion Reference No. 1 of 2012; [2014] eKLR , where the court held:-
But what is meant by a holistic interpretation of the Constitution? It must mean interpreting the Constitution in context. It is a contextual analysis of a constitutional provision, reading it alongside and against other provisions so as to maintain a rational explication of what the constitution must be taken to mean in the light of its history, of the issues in dispute and of the prevailing circumstances.
21. The petitioners further affirmed that the values in the constitution have been described as the intestinal fluid which nourishes the Bill of Rights and the constitution, which therefore imposes an obligation on courts to avoid a structural minimalist approach, but it should in the performance of its judicial function, espouse the value system in the constitution. Reliance was placed in the case of George Bala vs Attorney General [2017] eKLR where the court echoed the same view that the interpretation and application of the constitution by the judiciary must therefore not be a mechanical one but must be guided by the spirit and the soul of the constitution itself as ingrained in the national values and principles of governance espoused in the preamble and among other things Article 10 of the Constitution. They further called for a purposive interpretation that promotes the constitution’s purposes, values and aspirations in considering the instant dispute.
22. On the issue of violation of the gender equality principle, the petitioners cited Articles 27(6) & (8) and 232 of the Constitution and argued that the said provisions were inserted in the constitution to promote equality and affirmative action after the Kenyan people recognised the lack of representation of women in both elective and appointive bodies. They further argued that the president’s nomination and parliament’s inability to correct his short-sighted decision tacitly reinforce the insidious stereotypes that impede women’s access to political office in Kenya, stereotypes that are damaging to the psyche of Kenyan women and their conceptions of identity and personhood. To buttress that point, reliance was placed on the case of Marilyn Muthoni Kamuru & Others vs Attorney General & Another [2016] eKLR where the court held:-
It is in that spirit that Article 27(8) imposes upon the State the obligation to redress gender disadvantage by enacting laws that may be needed and also undertaking other measures including affirmative action that would ensure women are needed to redress any inequality that may manifest.
Article 27(8) enjoins the State to be proactive and that may be achieved not just through legislation but through appointments as the Article itself dictates.
With that understanding in mind, and having stated that the cabinet is a State organ within the context and meaning of Article 260 of the Constitution, it follows that Article 27(8) of the Constitution is applicable to the cabinet.
I would therefore agree that Article 27(8), especially as far as the appointive positions are concerned, should be realised immediately in contrary to the submissions of Mr. Njoroge.
The right to human dignity is the foundation of all other rights and together with the right to life, it forms the basis for the enjoyment of all other rights. Put differently, if a person enjoys the other rights in the Bill of Rights, the right to human dignity will automatically be promoted and protected while it will be violated if the other rights are violated. In the circumstances, and as a consequence of the violation of Article 27(8) of the Constitution, the petitioners’ right to dignity has been violated.
23. Further reliance was placed in the case of Centre for Rights Education & Awareness (CREW) & 8 Others vs Attorney General & Another Petition 207 & 208 of 2012 consolidated with JR. Misc Application No. 2012 where the court stated:-
In matters of appointment or election to office in order to achieve gender equality and equity, there is no qualification of the state’s obligation as there is no outlay of resources required and which is shown to limit or inhibit the realisation of this right. This is particularly so in a scenario such as the one before the court where, on the respondents' own admission, there are at least another 16 female District Commissioners with the requisite qualifications to meet the criteria that the respondents had set for appointment as County Commissioners. There is really no justification or explanation for the president’s failure to observe the requirements of Article 27(8). The appointments or deployments whatever term is used, assuming that the president had power to make them, fail the test of constitutionality by disregarding the national values and principles set out at Article 10(b) and the principle contained in Article 27(8) of the Constitution.
24. Contrary to the above caselaw, the petitioners argued that of the 51 principal secretaries’ nominees selected by the president, only 12 were women and 39 men, resulting in the nomination list that is 76% male and 24% female. Thus the failure of the National Assembly to decline to consider and approve the nominees who did not meet the two thirds gender rule is in total disregard of the constitution. Further, the Speaker of the National Assembly violated Article 27(8) by accepting the notification from the president and beginning the approval process for the nominees even though the list did not comply with the two thirds gender principle. The speaker’s violation of Article 27(8) is a concomitant violation of Articles 1(3), 10(1) & (2), 19(1), (2) & (3), 20(1), 21(1), (2) & (3) and 94(4) of the Constitution . The president violated Article 27(8) by selecting nominees for principal secretary positions that did not comply with the two thirds gender the requirement and Article 27(6) by failing to redress historical disadvantages suffered by women when selecting his nominees for the said positions. The violation of Article 27(6) and (8) is a concomitant violation of Articles 1(3), 10(1) & (2), 19(1), (2) & (3), 20(1), 21(1), (2) & (3), 129(1) and 131(a) and (e) of the Constitution.
25. The petitioners submitted that the objective normative value-based system established in the constitution was not an accident but was Kenyan’s reaction to the unchecked powers vested in the executive branch. They envisioned a society founded on values and principles as seen in Article 10 of the Constitution. Reliance was placed in the case of Trusted Society of Human
Rights Alliance vs The Attorney General & 2 Others Petition No. 229 of 2012 where the court held:-
The people of Kenya did not intend that these provisions be merely suggestions, superfluous or ornamental; they did not intend to include these provisions as lofty aspirations. Kenyans intended that the said provisions should have substantive bite and that they will be enforced and implemented. They desired these values and principles be put into practice. It follows, therefore, that all state organs, state officers, public officers and all persons whenever any of them applies or interprets the constitution, enacts, applies or intercepts any laws or makes or implements public policy decisions must refer to Article 10 of the Constitution.
26. By entrenching the values of transparency and accountability in the constitution, Kenyans wanted to move from a society founded on secrecy to one that is open and accountable. To buttress that point, reliance was placed in the decision of Samura Engineering Ltd & Others vs Kenya Revenue Authority Nairobi Petition No. 54 of 2011 where Majanja J noted that “ by placing the values of rule of law, good governance, transparency and accountability at the centre of the constitution, we must now embrace the culture of justification which requires that every official act must find its locus in law and underpinning in the constitution .”
27. The petitioners submitted that the values must guide the state and its state organs even when making public appointments or recruitment. Reliance was placed in the case of Community Advocacy and Awareness Trust and Others vs Attorney General Nairobi Petition No. 243 of 2011 where the court held:-
27 August 2010 ushered in a new regime of appointments to public office. Whereas the past was characterized by open corruption, tribalism, nepotism, favouritism, scrapping the barrel and political patronage, the new dispensation requires a break from the past. The constitution signifies the end of the ‘jobs for the boys’ era. Article 10 sets out the values that must be infused in every decision making process including that of making appointments.
28. Further reliance was placed on the case of Consumer Federation of Kenya (COFEK) vs Attorney General & 2 Others [2012] eKLR where the court held:-
These values and principles provide a foundation upon which Kenyans have determined that our democratic state shall be built; they are the intestinal fluid which nourishes the bill of rights and the constitution. Thus when making appointments to public office, every selecting, appointing and nominating authority must take into account these values and principles.
29. The petitioners argued that the respondents violated Article 10 of the Constitution by the Public Service Commission failing to publish and publicise the names of the 250 individuals forwarded to the president as potential nominees; failure to publish important information about the nation and failure to publish the names of those recommended to the president as potential nominees for the principal secretary positions. Similarly, the Public Service Commission violated Section 4 of the Public Service Commission Act and Section 8 of the Public Service Values and Principals Act which addresses the requirement that public officers be transparent and provide information timely and accurately.
30. On the final issue, the petitioners cited Article 35 of the Constitution, Section 5(1) of the Access to Information Act and the case of Mercy Nyawade vs Banking Fraud Investigations Department & 2 Others
[2017] eKLR and submitted that Article 35 must not be constrained by narrow interpretation. The court rendered itself:-
In line with the dictates of the Constitution, this court will reject the narrow, literal reading of the above provisions and opt for a construction that promotes wider access to information.
31. The petitioners relied on the case of President of the Republic of South Africa vs M & G Media (no citation given) where the court recognised the right to access information is necessary for the realization of other rights. It held:-
The right of access to information is also crucial to the realization of other rights in the Bill of Rights. The right to receive or impart information or ideas, for example, is dependent on it. In a democratic society such as our own, the effective exercise of the right to vote also depends on the right of access to information.
32. Further reliance was placed in the case of Brummer vs Minister for Social Development & Others CCT 25/09 [2009] ZACC 21;2009 where the court stated:-
Apart from this, access to information is fundamental to the realization of the rights guaranteed in the Bill of Rights. For example, access to information is crucial to the right to freedom of expression which includes
freedom of the press and other media and freedom to receive or impart information or ideas.
33. The petitioners submitted that the right to access information encompasses a duty on state bodies to proactively disclose information. Information such as the one in the instant petition was necessary for the public to know the people recommended for appointment, people who were going to occupy public offices
held in trust by the people. Further, the information was necessary for the people to ensure that those who had been recommended for appointment owe their appointment to their qualifications rather than cronyism, which more often than not leads to undesired practices such a corruption. Reliance was placed in the case of Nairobi Law Monthly Company Limited vs Kenya Electricity Generating Company & 2 Others [2013] eKLR where the court stated:-
The second consideration to bear in mind is that the right to information implies the entitlement by the citizen to information, but it also imposes a duty on the State with regard to provision of information. Thus the State has a duty not only to proactively publish information in the public interest. This I believe is the import of Article 35(3) of the Constitution which imposes an obligation on the State to publish and publicise any important information affecting the nation.
34. The petitioners submitted that the Public Service Commission violated Article 35 of the Constitution , Section 5 of the Access to Information Act , Section 4 of the Public Service Commission Act and Section 8 of the Public Service Values and Principals Act by failing to publish and publicise the names of the 250 individuals forwarded to the president as potential nominees for the principal secretary positions.
35. On the issue of relief to be granted, the petitioners argued that an appropriate remedy must mean an effective remedy. Reliance was placed in the case of Fose vs Minister of Safety and Security (no citation given) where the court held:-
In our context, an appropriate remedy must mean an effective remedy, for without effective remedies for breach, the values underlying the rights entrenched in the constitution cannot properly be upheld or enhanced. Particularly in a country where so few have the means to enforce their legal rights through courts, it is essential that on those occasions when the legal process does establish that an infringement of an entrenched right has occurred, it be effectively vindicated. The courts have a particular responsibility in this regard and are obliged to forge new tools and shape innovative remedies if needs be, to achieve this goal.
36. The petitioners further submitted that the court is not bound by the remedies requested in the petition nor the remedies provided under Article 23 of the Constitution. The court has the power to formulate a new remedy, a position endorsed by the Supreme Court when it granted a structural interdict in Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 others Petition No. 14, 14A, 14B & 14C of 2014 Mitu-Bell Welfare Society vs Kenya Airports Authority & 2 Others; Initiative for Strategic Litigation in Africa (Amicus Curiae) (Petition 3 of 2018) [2019] KESC 34 (KLR) .
The 1 st Respondent’s Submissions
37. The 1 st respondent identified four issues for determination as follows; whether the petition is caught by the doctrine of sub judice ; whether this Honourable Court has jurisdiction to determine the subject matter of the petition; whether the petition is moot and what is the legal propriety of the petition in light of the provisions of Article 155(1) and (2) of the Constitution . On the first issue, the 1 st respondent submitted that the issues raised in the current petition was a live issue in Nairobi ELRC Petition E207 of 2022 filed in public interest and the judgment in that petition is pending appeal before the Court of Appeal in Nairobi Civil Appeal No. E722 of 2023 Thus, the present petition is caught by the doctrine of sub judice pursuant to Section 6 of the Civil Procedure Act and must down its tools. Reliance was placed in the case of Kenya National Commission on Human Rights vs Attorney General; Independent
Electoral & Boundaries Commission & 16 Others (Interested Parties) [2020] eKLR where the court held:
The purpose of the sub judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res sub judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.
38. The 1 st respondent argued that on account of having established that the instant petition is sub judice , thereby amounting to abuse of the court process, the right remedy in the circumstances is a dismissal order. Reliance was placed in the case of Gathariki vs Cheko Plot Owners Association & Another (Civil Appeal 116 of 2019) [2025] KECA 313 (KLR) (21 February 2025) (Judgment) where the court held:-
Even though Section 6 of the Civil Procedure Act provides for stay of subsequent suits, the learned judge dismissed the suit for being an abuse of court process. The question is whether the learned judge erred in so finding. We do not think so. The practice of litigants filing parallel proceedings seeking similar or substantially similar orders arising from the same set of facts and circumstances should be abhorred for obvious reasons. One consequence of the said practice is that it amounts to abuse of court process. As was held by the High Court in Graham Rioba Sagwe & Others vs Fina Bank Limited & 3 Others [2017] eKLR the court has inherent jurisdiction to protect itself from abuse or to see that its process is not abused. The Black’s Law Dictionary, 10 th Edition defines abuse of process as inter alia a wrongful process of law. The situations that may give rise to abuse of court process are inexhaustive. It involves situations where the process of court has not been resorted to fairly, properly, honestly to the detriment of the other party. The High Court in Graham Rioba Sagwe & Others vs Fina Bank Limited & 3 Others [2017] eKLR provided the following examples which constitute abuse of the court process:
a) Instituting a multiplicity of actions on the same subject matter against the same opponent, on the same issues or multiplic
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