Introduction
1. The Petitioner contends that the 5th Respondent is not qualified to serve as Chairman of the Board of Directors of the 4th Respondent. Consequently, the Petitioner filed the Petition dated 15th July 2025. The Petition is supported by the affidavit of the Petitioner’s Chairman, Prof. Fred Ogola, of even date. The Petitioner challenges the legality and constitutionality of the appointment, contending that at the time of appointment the 5th Respondent was negatively listed in a Credit Reference Bureau (CRB) report, rendering him unsuitable for the position. Consequently, the appointment is impugned for failing to comply with the principles of transparency, merit, integrity, fair competition, and public participation as envisaged under Articles 10, 73, and 232 of the Constitution.
2. Accordingly, the Petitioner seeks the following relief against the Respondents:
i. The Court be pleased to issue a declaration that the appointment of the 5th Respondent as the chairperson of the 4th Respondent state corporation is illegal, unconstitutional, unlawful and void for being made without an advertisement for the said impugned position, or a record of the criteria used for appointing the 5th Respondent as is required under Articles 10(2) & 232 of the Constitution;
ii. The Court be pleased to issue a declaration that the appointment of the 5th Respondent as the chairperson of the 4th Respondent state corporation is illegal, unconstitutional, unlawful and void for the reason that the 5th Respondent was at the time of his appointment disqualified to assume office as the chairperson of the 4th Respondent state corporation since he had a negative listing in the Credit Reference Bureau, and ultimately in contravention of Article 73(2) of the Constitution;
iii. The Court be pleased to issue a declaration that the Gazette Notice No. 8227 of 20th June, 2023 appointing the 5th Respondent as the chairperson of the 4th Respondent state corporation is illegal, unlawful and unconstitutional to that extent;
iv. The Court be pleased to issue an order of certiorari to remove into this Court for purposes of being quashed the purported appointment of the 5th Respondent as the chairperson of the 4th Respondent state corporation contained in the Gazette Notice Number 8227 published on the 20th June, 2023;
v. The Court be pleased to issue an order of prohibition prohibiting the 5th Respondent from occupying and performing the functions of the office of the chairperson of the 4th Respondent state corporation;
vi. An order for costs of and incidental to this Petition; and
vii. This Court be pleased to issue such further orders and/ or directions as to, but not limited to, the reliefs sought herein as it may deem just and expedient for the ends of justice.
Petitioner’s Case
3. By way of background, the Petitioner states that the President of the Republic of Kenya, through Gazette Notice No. 8227 dated 20th June 2023, appointed the 5th Respondent as the Chairperson of the Board of Directors of the 4th Respondent.
4. The Petitioner contends that at the time of his appointment, the 5th Respondent had been negatively listed by the Credit Reference Bureau (CRB), yet he was still appointed to an office requiring a high degree of financial probity and integrity.
5. It is the Petitioner’s case that the appointment was therefore made in contravention of the Constitution and the law, particularly the national values and principles of governance, leadership and integrity, and the values and principles of public service enshrined in Articles 10, 73 and 232 of the Constitution.
6. The Petitioner further asserts that, despite the alleged constitutional and statutory violations surrounding his appointment, the 5th Respondent has continued to perform the functions of Chairperson of the Board of Directors of the 4th Respondent.
7. According to the Petitioner, the appointment exemplifies impunity and a disregard for the constitutional requirements of integrity, transparency and accountability that ought to guide appointments to public office.
8. Consequently, the Petitioner invites this Court to intervene to determine the legality and constitutionality of the 5th Respondent’s appointment and to grant the reliefs sought.
Respondents’ Responses
9. The 1st, 2nd, 3rd, 6th and 7th Respondents did not take an active part in the petition and do not appear to have filed any documents.
4th Respondent’s Response
10. In opposition to the Petition, the 4th Respondent filed a Replying Affidavit sworn on 16th September 2025 by its Company Secretary, Yvonne Masinde.
11. As a preliminary matter, the 4th Respondent contends that the Petition offends the doctrines of constitutional avoidance and exhaustion. Further, it fails to disclose any violation or threatened violation of the Petitioner’s constitutional rights. It is also asserted that the Petitioner lacks the requisite locus standi to institute the proceedings, having failed to demonstrate any personal injury or legal interest capable of sustaining the action.
12. The 4th Respondent deponed that following the appointment of the 5th Respondent, its Board of Directors duly considered and approved the appointment in compliance with the Banking Act and the Prudential Guidelines issued by the 3rd Respondent. It averred that, pursuant to Section 6(1)(a) of the State Corporations Act, the power to appoint the Chairperson of a State corporation is vested in the President. Consequently, the appointment was not subject to a competitive recruitment process or public participation as alleged by the Petitioner.
13. The 4th Respondent further states that the approval of the 3rd Respondent was subsequently sought in accordance with Sections 9A (1) and 9A (7), Part A of the First Schedule to the Banking Act and Clause 3.4 of Prudential Guideline No. CBK/PG/02. It averred that, by a letter dated 29th December 2023, the 3rd Respondent stated that it had no objection to the appointment of the 5th Respondent. According to the 4th Respondent, the 3rd Respondent exercised its statutory mandate in granting the approval, and the said decision has not been challenged by the Petitioner.
14. The 4th Respondent also stated that Credit Reference Bureau (CRB) reports constitute confidential customer information and may be disclosed only in strict compliance with Regulation 27 of the Credit Reference Bureau Regulations. It therefore argued that unless the Petitioner demonstrates that the information was lawfully supplied by the 5th Respondent pursuant to Regulation 27(1)(a), the CRB report relied upon constitutes illegally obtained evidence that ought to be disregarded by the Court. It further argued that reliance on the report violates Articles 31(c) and 50(4) of the Constitution.
15. In addition, the 4th Respondent maintained that the allegation that the 5th Respondent was negatively listed by a Credit Reference Bureau is misleading and untenable. It pointed out that the 3rd Respondent, as regulator, considered all relevant information, including the CRB report, before approving the appointment. In its view, the Petition improperly invites the Court to usurp the statutory functions of the 3rd Respondent. The 4th Respondent further averred that a CRB listing, of itself, does not constitute a statutory disqualification under the Banking Act, the Prudential Guidelines, or any other applicable law governing the appointment of directors. It was also stated that, since his appointment, the 5th Respondent has served as Chairperson without any complaint, irregularity, or governance failure being raised against him.
16. The 4th Respondent further contended that the Petitioner failed to show how the appointment of the 5th Respondent infringed Articles 10, 27, 47, 73, or any other provision of the Constitution. It maintained that the process leading to the appointment was lawful and that the allegations in the Petition were speculative, unsupported by evidence, and based on conjecture, with no demonstrable nexus between the alleged CRB listing and any constitutional violation warranting the reliefs sought.
17. Finally, the 4th Respondent asserts that the 5th Respondent was not subjected to any differential treatment, whether favourable or adverse, compared with other similarly situated appointees. On that basis, it urged the Court to find that the Petition was frivolous, vexatious, misconceived, and an abuse of the Court process, and to dismiss it with costs.
5th Respondent
18. The 5th Respondent’s case was set out in his Grounds of Opposition dated 25th September 2025. He challenges the Petition on the following grounds:
i The President of Kenya has the power to appoint Chairmen of state corporations, as in the instant case. The instant case did not involve a competitive position. It was a presidential appointment by law that did not require a competitive exercise; therefore, the appointment was lawful and regular;
ii The 4th Respondent is a bank and also a limited liability company that followed its memorandum and Articles of Association, as well as its policies and the laid-down regulatory procedure to appoint the 5th Respondent;
iii The 3rd Respondent, as a regulator, vetted the 5th Respondent just like all other directors of banks and of other state corporations in Kenya and approved the 5th Respondent's position with the 4th Respondent;
iv The application and Petition were frivolous and an abuse of the Court process, and the prayers sought were not obtainable;
v No violation or any threatened violation or any personal injury had been disclosed or established;
vi The Petitioner had not exhausted the avenues of redress provided by law before invoking this Court’s jurisdiction, and hence the doctrine of exhaustion had been breached;
vii The powers exercised by the 3rd Respondent had not been properly challenged before this Court;
viii The Petitioner was guilty of laches;
ix There was material non-disclosure and a breach of Regulation 27 of the Banking (Credit Reference Bureau) Regulations 2020;
x There was an infringement of the right to privacy of the 5th Respondent under Article 31(c) of the Constitution;
xi There was an infringement of Article 50(4) of the Constitution with the resultant violation of the constitutional right of the 5th Respondent in relation to the illegality obtained Credit Reference Bureau report as evidenced in the Petition and the Application.
Parties’ Submissions
19. On 11th November 2026, Mwita, J, as he then was, issued directions for the hearing of the Petition. He directed that the Petition would be canvassed by written submissions. His Lordship set out the timelines for the parties’ counsel to file written submissions. I will set out below a précis of the submissions filed by the parties.
Petitioner’s Submissions
20. Ramadhan Mukira & Company Advocates, for the Petitioner, filed written submissions dated 2nd March 2026. The Petitioner identified four key issues for determination, namely, whether the appointment of the 5th Respondent complied with the constitutional values and principles governing public appointments, whether the Petitioner violated Articles 31 and 50(4) of the Constitution, whether Section 6(1) of the State Corporations Act was applicable in the circumstances of the case and whether the Petition met the requisite threshold for constitutional petitions.
21. On the first issue, the Petitioner submitted that the appointment of the 5th Respondent was characterized by opaqueness, lack of integrity, lack of accountability and non-compliance with the principles of advertisement, fair competition and merit as envisaged under Article 10 of the Constitution and Section 10 of the Public Service (Values and Principles) Act. It was argued that the Respondents had not demonstrated that the position was advertised, that qualified persons were afforded an opportunity to apply, or that interviews were conducted to identify the most suitable candidate.
22. Reliance was placed on Law Society of Kenya v Attorney General & Another; Judicial Service Commission (Interested Party) [2020] KEHC 10496 (KLR), where the Court emphasized the obligation of every person to respect, uphold and defend the Constitution and observed that any alleged constitutional violation is a serious affront to constitutionalism. Similar reliance was placed on Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] KEHC 10266 (KLR).
23. The Petitioner further submitted that the appointment was unlawful because of the 5th Respondent’s alleged negative listing by the CRB, which, in its view, violated the values and principles of public service under Article 232 of the Constitution. It was also contended that the appointment process failed to comply with the principle of public participation. In that regard, the Petitioner invoked Section 9(5) of the Employment Act, arguing that applicants for public office are required to furnish compliance or clearance certificates during the recruitment or approval process, and that this requirement was not met.
24. The Petitioner maintained that the positions advanced by the 4th and 5th Respondents were misleading and misguided as they relied exclusively on the State Corporations Act without considering the supremacy of the Constitution under Article 2. It was argued that the appointment was inconsistent with Articles 2 and 10 of the Constitution. The Petitioner further invoked Article 259 of the Constitution, submitting that constitutional provisions must be interpreted in a manner that promotes constitutional values, purposes and principles, advances the rule of law, and protects human rights and fundamental freedoms.
25. Reliance was also placed on the case of Mboya v Attorney General; National Assembly & another (Interested Parties) [2018] KEHC 6933 (KLR), as well as Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 others [2017] KECA 436 (KLR) and Community Advocacy and Awareness Trust & 8 Others v Attorney General; National Gender and Equality Commission (Interested Party) & 5 Others [2012] KEHC 5981 (KLR).
26. The Petitioner further submitted that the appointment contravened Section 10 of the Public Service (Values and Principles) Act as read together with Articles 232 and 73(2) of the Constitution. The Petitioner alleged that the Respondents knowingly conspired on the appointment of the 5th Respondent despite his alleged negative CRB status and that a proper vetting process would have revealed his unsuitability for the office. Consequently, it was argued that the appointment was illegal, unconstitutional, unlawful and void. In support of this proposition, reliance was placed on the case of Katiba Institute & Another v Attorney General & Another [2020] eKLR, where the Court observed that the values and principles of public service under Article 232 and the Public Service (Values and Principles) Act apply to state corporations and parastatals, and that the national values under Article 10 bind all state organs, state officers and public officers. Additional reliance was placed on Mboya v Githinji & Another; Pharmacy and Poisons Board (Interested Party) (Constitutional Petition E326 of 2023) [2024] KEHC 13598 (KLR).
27. With respect to the alleged violation of Articles 31 and 50(4) of the Constitution, the Petitioner submitted that the 4th and 5th Respondents had erroneously relied on the Credit Reference Bureau Regulations, 2020, which had been nullified by the High Court on 28th August 2023 for non-compliance with Section 11 of the Statutory Instruments Act. Although that decision is the subject of a pending appeal, the Petitioner contended that the Court of Appeal's interim orders had the effect of holding the applicability of the impugned regulations in abeyance pending determination of the appeal. Reliance was placed on National Assembly & 47 others v Okoiti & 169 others [2024] KECA 39 (KLR), where the Court emphasized that public interest lay in awaiting the determination of the appeal. Reliance was also placed on Cabinet Secretary, Ministry of Health v Aura & 13 others [2024] KECA 1195 (KLR).
28. The Petitioner further argued that the right to privacy under Article 31 of the Constitution is not absolute. Citing Bernstein v Bester No. 1996 (2) SA 75, it was submitted that the scope of privacy diminishes as an individual moves from the private sphere into communal and public activities. Similar reliance was placed on Kenya Akiba Micro Financing Limited v Ezekiel Chebii & 14 Others [2012] KEHC 5590 (KLR).
29. On Article 50(4), the Petitioner submitted that the production of evidence in support of alleged constitutional violations is not a mere technical matter and that the burden rests on the party seeking exclusion of evidence to demonstrate how its admission would prejudice a fair trial or undermine the administration of justice. Reliance was placed on Njenga v Dib Bank Kenya Limited [2023] KEELRC 1549 (KLR), where the Court held that it is insufficient for a party to merely allege prejudice without presenting cogent evidence demonstrating such prejudice.
30. The Petitioner also challenged the Respondents’ reliance on Section 6(1) of the State Corporations Act, contending that many of its provisions predate the Constitution of Kenya, 2010 and must therefore be construed in conformity with the Constitution. Reliance was placed on Rukaria v Attorney General; Debasso & another (Interested Parties) [2023] KEELRC 2824 (KLR), where the Court observed that there is no constitutional provision expressly empowering the President to appoint or dismiss chairpersons or members of state corporations and further held that state corporations fall within the public service framework contemplated under the Constitution and the mandate of the Public Service Commission.
31. Finally, the Petitioner submitted that the Petition satisfied the threshold established in Anarita Karimi Njeru v Republic (1976–1980) KLR 1272. It was urged that the Petition pleaded the alleged constitutional violations with the requisite precision, established a nexus between those violations and the reliefs sought, and therefore merited the grant of the orders sought.
4th Respondent’s Submissions
32. Gerivia Advocates LLP, appearing for the 4th Respondent, filed submissions dated 25th March 2026. In its counsel's view, the issues for determination are whether the Petition discloses a real controversy warranting adjudication by the Court, whether the issues raised are justiciable in light of the doctrine of separation of powers, whether the Petitioner demonstrated that the appointment of the 5th Respondent violated the Constitution, and whether the CRB report adduced by the Petitioner is admissible and of any probative value.
33. On the first issue, the 4th Respondent submitted that the Petition does not genuinely challenge the constitutionality of the appointment of the 5th Respondent, but rather constitutes an indirect contest to the statutory framework governing such appointments, particularly Section 6(1)(a) of the State Corporations Act, which empowers the President to make such appointments. It was contended that the Petition fails to distinguish the alleged unconstitutionality of the 5th Respondent’s appointment from other appointments made pursuant to the same statutory framework. Consequently, the 4th Respondent argued that the Petition falls short of the precision required in constitutional petitions as articulated in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR and amounts to a generalized challenge to the legislative framework governing appointments to State corporations. In contrast, the 4th Respondent maintained that it had placed before the Court evidence demonstrating that the impugned appointment was undertaken in accordance with the applicable statutory provisions, which themselves embody constitutional values including merit.
34. The 4th Respondent further argued that since the constitutionality of the relevant statutory provisions had not been challenged, the Court ought to decline the invitation to engage in what would amount to an academic or hypothetical exercise. In that regard, reliance was placed on Mwau v Attorney General (Petition No. 541 of 2013) [2015] KEHC 6979 (KLR) and National Conservative Forum v Attorney General [2013] KEHC 6018 (KLR), where the Court affirmed that judicial power, particularly in constitutional adjudication, ought not to be exercised in abstract or speculative circumstances.
35. On the question of justiciability, the 4th Respondent submitted that the issues raised in the Petition fall within the ambit of the doctrine of separation of powers. It was argued that the President’s power to appoint chairpersons of State corporations under Section 6(1)(a) of the State Corporations Act, together with the oversight role exercised by the 3rd Respondent, operates within a broader constitutional and statutory framework that includes the Mwongozo Code of Governance for State Corporations and the applicable Prudential Guidelines, all of which are intended to ensure compliance with the values and principles enshrined in Chapter Six of the Constitution.
36. In response to the Petitioner’s reliance on Rukaria v Attorney General(supra), the 4th Respondent submitted that the Court in that case merely directed the Respondents to prioritize a review of the State Corporation Act and other statutes with a view of harmonizing them with the Constitution but did not nullify these statutes, meaning they remain in force and binding. A similar observation, it was argued, was made in Katiba Institute & Another v Attorney General & Another (supra).
37. The 4th Respondent further postulated that the President’s power to make such appointments is an aspect of executive prerogative grounded in the doctrine of separation of powers. Reliance was placed on John Harun Mwau v Attorney General [2015] eKLR, where the Court declined to interfere with powers constitutionally vested in the President and observed that directing the President on the manner of exercising discretion would effectively amount to taking away powers exclusively vested in that office.
38. In support of the doctrine of non-justiciability, the 4th Respondent relied on Gachagua & 40 Others v Speaker, National Assembly & 15 Others; Law Society of Kenya & 7 Others (Interested Parties) [2024] KEHC 13473 (KLR), where the Court observed that the political question doctrine recognizes limitations on judicial intervention in matters constitutionally entrusted to the executive or legislative branches of government. It was submitted that judicial intervention is only warranted where procedural defects or constitutional violations are demonstrated, as emphasized by the Court of Appeal in Martin Nyaga Wambora & 3 Others v Speaker of the Senate & 6 Others [2014] eKLR, and similarly, in the case of Mumo Matemu (supra).
39. Against that backdrop, the 4th Respondent argued that the Petitioner had failed to demonstrate any procedural impropriety, illegality or irrationality in the appointment process. It maintained that the allegations relating to integrity and constitutional values were broad, generalized and unsupported by evidence, and therefore incapable of meeting the threshold necessary to justify judicial interference with an executive appointment. The Court was consequently urged, in deference to the doctrine of separation of powers, to decline the invitation to reassess the merits of an appointment lawfully made, including on the basis of the alleged failure to consider a CRB report.
40. The 4th Respondent further emphasized that the Petitioner had not challenged the appointment on grounds of non-compliance with the applicable statutory procedures or criteria. Rather, the challenge rests on broad allegations of violations of constitutional values, notwithstanding the undisputed fact that the appointment was undertaken in accordance with the governing statutory framework. It was argued, therefore, that the Petition merely invokes constitutional principles without demonstrating how the impugned appointment violated any specific constitutional provision.
41. To support this position, reliance was placed on Katiba Institute & Another v Attorney General & Another; Karangi & 128 Others (Interested Parties) (Petition No. 236 of 2018), where the Court held that appointments to parastatals and State corporations are governed by the State Corporations Act and other relevant statutes and that the legality of such appointments must be assessed against the statutory framework establishing the office. Similar reliance was placed on Katiba Institute & Another v Attorney General & Another, Nairobi High Court Petition No. 331 of 2016 [2020] eKLR and Tom Luusa Munyasya & Another v Governor, Makueni County & Another [2014] eKLR.
42. The 4th Respondent additionally submitted that the impugned statutory provisions enjoy a presumption of constitutionality until proven otherwise. Accordingly, having complied with the procedures prescribed by law in appointing the 5th Respondent, the 4th Respondent contended that the Petitioner had failed to establish any constitutional violation.
43. Regarding the CRB report relied on by the Petitioner, the 4th Respondent urged that it was obtained illegally and that its production violated the 5th Respondent’s rights under Articles 31(c) and 50(4) of the Constitution. It was submitted that the Court cannot consider evidence procured in contravention of established legal standards without undermining the integrity of the judicial process and the constitutional principles of fairness and justice. Reliance was placed on Kenya Railways Corporation & 2 Others v Okoiti & 3 Others [2022] KESC 68 (KLR), in which the Supreme Court held that illegally obtained evidence is inadmissible in civil proceedings, notwithstanding its relevance. On that basis, the Court was urged to expunge the CRB report from the record.
44. The 4th Respondent also disputed the Petitioner’s contention that the Credit Reference Bureau Regulations, 2020, are not in force. It was stated that following the High Court’s decision declaring the Regulations invalid, the Court of Appeal suspended that declaration pending the hearing and determination of Nairobi Civil Appeal No. E782 of 2023, observing that both the applicant and the public stood to suffer irreparable harm if the declaration remained operative. It was therefore submitted that the Regulations remain in force pending the determination of the appeal.
45. In conclusion, the 4th Respondent maintained that the Petition is devoid of merit, fails to disclose any justiciable constitutional issue, and does not satisfy the evidentiary threshold necessary to impugn the appointment of the 5th Respondent. It therefore urged the Court to find that the appointment was undertaken in full compliance with the Constitution and the applicable statutory framework and to dismiss the Petition.
5th Respondent’s Submissions
46. Dr CO Kenyariri Advocates LLP, for the 5th Respondent, filed submissions dated 11th December 2025.
47. In his submissions, the 5th Respondent’s counsel contested the admissibility of the CRB report relied upon by the Petitioner. He submitted that pursuant to Regulation 27 of the Credit Reference Bureau Regulations, 2020, CRB reports constitute confidential customer information and may be disclosed only to restricted entities. According to the 5th Respondent, the Petitioner does not fall within any of the categories of persons entitled to access such information, nor had the 5th Respondent furnished the report to him. Consequently, it was argued that the CRB report produced by the Petitioner was illegally obtained and therefore inadmissible, as its production violated Articles 31(c) and 50(4) of the Constitution. On that basis, the Court was urged to disregard the report.
48. The 5th Respondent further submitted that the allegation that he had been negatively listed by CRB was unfounded and, in any event, did not constitute a statutory disqualification under the Banking Act, the Prudential Guidelines, or any other law governing the appointment of directors. He contended that the 3rd Respondent is the statutory body mandated to assess the fitness and propriety of persons proposed for such appointments.
49. It was his submission that the 3rd Respondent considered all relevant information relating to the 5th Respondent and subsequently approved his appointment in accordance with the law. The 5th Respondent underscored that the exercise of the 3rd Respondent’s statutory mandate had not been challenged in the Petition and that any attempt by the Court to revisit the regulator’s determination would amount to a usurpation of the powers conferred upon it. He further argued that the Petitioner was guilty of laches, noting that although the impugned appointment was made in June 2023, the Petition was not instituted until 2025.
50. Turning to the substantive challenge to his appointment, the 5th Respondent maintained that the appointment of chairpersons of State corporations is expressly provided for under Section 6(1) of the State Corporations Act. He therefore argued that his appointment by the President was lawful, having been undertaken pursuant to that provision. He further submitted that he underwent the mandatory vetting process prescribed under Section 53 of the Banking Act, the Prudential Guidelines and the suitability assessment conducted by the 3rd Respondent, all of which culminated in the approval of his appointment.
51. The 5th Respondent also rejected the contention that public participation was required in the appointment process. In his view, where legislation provides a specific mechanism for appointment and oversight, compliance with that mechanism is sufficient, and there is
[...truncated]
1. The Petitioner contends that the 5th Respondent is not qualified to serve as Chairman of the Board of Directors of the 4th Respondent. Consequently, the Petitioner filed the Petition dated 15th July 2025. The Petition is supported by the affidavit of the Petitioner’s Chairman, Prof. Fred Ogola, of even date. The Petitioner challenges the legality and constitutionality of the appointment, contending that at the time of appointment the 5th Respondent was negatively listed in a Credit Reference Bureau (CRB) report, rendering him unsuitable for the position. Consequently, the appointment is impugned for failing to comply with the principles of transparency, merit, integrity, fair competition, and public participation as envisaged under Articles 10, 73, and 232 of the Constitution.
2. Accordingly, the Petitioner seeks the following relief against the Respondents:
i. The Court be pleased to issue a declaration that the appointment of the 5th Respondent as the chairperson of the 4th Respondent state corporation is illegal, unconstitutional, unlawful and void for being made without an advertisement for the said impugned position, or a record of the criteria used for appointing the 5th Respondent as is required under Articles 10(2) & 232 of the Constitution;
ii. The Court be pleased to issue a declaration that the appointment of the 5th Respondent as the chairperson of the 4th Respondent state corporation is illegal, unconstitutional, unlawful and void for the reason that the 5th Respondent was at the time of his appointment disqualified to assume office as the chairperson of the 4th Respondent state corporation since he had a negative listing in the Credit Reference Bureau, and ultimately in contravention of Article 73(2) of the Constitution;
iii. The Court be pleased to issue a declaration that the Gazette Notice No. 8227 of 20th June, 2023 appointing the 5th Respondent as the chairperson of the 4th Respondent state corporation is illegal, unlawful and unconstitutional to that extent;
iv. The Court be pleased to issue an order of certiorari to remove into this Court for purposes of being quashed the purported appointment of the 5th Respondent as the chairperson of the 4th Respondent state corporation contained in the Gazette Notice Number 8227 published on the 20th June, 2023;
v. The Court be pleased to issue an order of prohibition prohibiting the 5th Respondent from occupying and performing the functions of the office of the chairperson of the 4th Respondent state corporation;
vi. An order for costs of and incidental to this Petition; and
vii. This Court be pleased to issue such further orders and/ or directions as to, but not limited to, the reliefs sought herein as it may deem just and expedient for the ends of justice.
Petitioner’s Case
3. By way of background, the Petitioner states that the President of the Republic of Kenya, through Gazette Notice No. 8227 dated 20th June 2023, appointed the 5th Respondent as the Chairperson of the Board of Directors of the 4th Respondent.
4. The Petitioner contends that at the time of his appointment, the 5th Respondent had been negatively listed by the Credit Reference Bureau (CRB), yet he was still appointed to an office requiring a high degree of financial probity and integrity.
5. It is the Petitioner’s case that the appointment was therefore made in contravention of the Constitution and the law, particularly the national values and principles of governance, leadership and integrity, and the values and principles of public service enshrined in Articles 10, 73 and 232 of the Constitution.
6. The Petitioner further asserts that, despite the alleged constitutional and statutory violations surrounding his appointment, the 5th Respondent has continued to perform the functions of Chairperson of the Board of Directors of the 4th Respondent.
7. According to the Petitioner, the appointment exemplifies impunity and a disregard for the constitutional requirements of integrity, transparency and accountability that ought to guide appointments to public office.
8. Consequently, the Petitioner invites this Court to intervene to determine the legality and constitutionality of the 5th Respondent’s appointment and to grant the reliefs sought.
Respondents’ Responses
9. The 1st, 2nd, 3rd, 6th and 7th Respondents did not take an active part in the petition and do not appear to have filed any documents.
4th Respondent’s Response
10. In opposition to the Petition, the 4th Respondent filed a Replying Affidavit sworn on 16th September 2025 by its Company Secretary, Yvonne Masinde.
11. As a preliminary matter, the 4th Respondent contends that the Petition offends the doctrines of constitutional avoidance and exhaustion. Further, it fails to disclose any violation or threatened violation of the Petitioner’s constitutional rights. It is also asserted that the Petitioner lacks the requisite locus standi to institute the proceedings, having failed to demonstrate any personal injury or legal interest capable of sustaining the action.
12. The 4th Respondent deponed that following the appointment of the 5th Respondent, its Board of Directors duly considered and approved the appointment in compliance with the Banking Act and the Prudential Guidelines issued by the 3rd Respondent. It averred that, pursuant to Section 6(1)(a) of the State Corporations Act, the power to appoint the Chairperson of a State corporation is vested in the President. Consequently, the appointment was not subject to a competitive recruitment process or public participation as alleged by the Petitioner.
13. The 4th Respondent further states that the approval of the 3rd Respondent was subsequently sought in accordance with Sections 9A (1) and 9A (7), Part A of the First Schedule to the Banking Act and Clause 3.4 of Prudential Guideline No. CBK/PG/02. It averred that, by a letter dated 29th December 2023, the 3rd Respondent stated that it had no objection to the appointment of the 5th Respondent. According to the 4th Respondent, the 3rd Respondent exercised its statutory mandate in granting the approval, and the said decision has not been challenged by the Petitioner.
14. The 4th Respondent also stated that Credit Reference Bureau (CRB) reports constitute confidential customer information and may be disclosed only in strict compliance with Regulation 27 of the Credit Reference Bureau Regulations. It therefore argued that unless the Petitioner demonstrates that the information was lawfully supplied by the 5th Respondent pursuant to Regulation 27(1)(a), the CRB report relied upon constitutes illegally obtained evidence that ought to be disregarded by the Court. It further argued that reliance on the report violates Articles 31(c) and 50(4) of the Constitution.
15. In addition, the 4th Respondent maintained that the allegation that the 5th Respondent was negatively listed by a Credit Reference Bureau is misleading and untenable. It pointed out that the 3rd Respondent, as regulator, considered all relevant information, including the CRB report, before approving the appointment. In its view, the Petition improperly invites the Court to usurp the statutory functions of the 3rd Respondent. The 4th Respondent further averred that a CRB listing, of itself, does not constitute a statutory disqualification under the Banking Act, the Prudential Guidelines, or any other applicable law governing the appointment of directors. It was also stated that, since his appointment, the 5th Respondent has served as Chairperson without any complaint, irregularity, or governance failure being raised against him.
16. The 4th Respondent further contended that the Petitioner failed to show how the appointment of the 5th Respondent infringed Articles 10, 27, 47, 73, or any other provision of the Constitution. It maintained that the process leading to the appointment was lawful and that the allegations in the Petition were speculative, unsupported by evidence, and based on conjecture, with no demonstrable nexus between the alleged CRB listing and any constitutional violation warranting the reliefs sought.
17. Finally, the 4th Respondent asserts that the 5th Respondent was not subjected to any differential treatment, whether favourable or adverse, compared with other similarly situated appointees. On that basis, it urged the Court to find that the Petition was frivolous, vexatious, misconceived, and an abuse of the Court process, and to dismiss it with costs.
5th Respondent
18. The 5th Respondent’s case was set out in his Grounds of Opposition dated 25th September 2025. He challenges the Petition on the following grounds:
i The President of Kenya has the power to appoint Chairmen of state corporations, as in the instant case. The instant case did not involve a competitive position. It was a presidential appointment by law that did not require a competitive exercise; therefore, the appointment was lawful and regular;
ii The 4th Respondent is a bank and also a limited liability company that followed its memorandum and Articles of Association, as well as its policies and the laid-down regulatory procedure to appoint the 5th Respondent;
iii The 3rd Respondent, as a regulator, vetted the 5th Respondent just like all other directors of banks and of other state corporations in Kenya and approved the 5th Respondent's position with the 4th Respondent;
iv The application and Petition were frivolous and an abuse of the Court process, and the prayers sought were not obtainable;
v No violation or any threatened violation or any personal injury had been disclosed or established;
vi The Petitioner had not exhausted the avenues of redress provided by law before invoking this Court’s jurisdiction, and hence the doctrine of exhaustion had been breached;
vii The powers exercised by the 3rd Respondent had not been properly challenged before this Court;
viii The Petitioner was guilty of laches;
ix There was material non-disclosure and a breach of Regulation 27 of the Banking (Credit Reference Bureau) Regulations 2020;
x There was an infringement of the right to privacy of the 5th Respondent under Article 31(c) of the Constitution;
xi There was an infringement of Article 50(4) of the Constitution with the resultant violation of the constitutional right of the 5th Respondent in relation to the illegality obtained Credit Reference Bureau report as evidenced in the Petition and the Application.
Parties’ Submissions
19. On 11th November 2026, Mwita, J, as he then was, issued directions for the hearing of the Petition. He directed that the Petition would be canvassed by written submissions. His Lordship set out the timelines for the parties’ counsel to file written submissions. I will set out below a précis of the submissions filed by the parties.
Petitioner’s Submissions
20. Ramadhan Mukira & Company Advocates, for the Petitioner, filed written submissions dated 2nd March 2026. The Petitioner identified four key issues for determination, namely, whether the appointment of the 5th Respondent complied with the constitutional values and principles governing public appointments, whether the Petitioner violated Articles 31 and 50(4) of the Constitution, whether Section 6(1) of the State Corporations Act was applicable in the circumstances of the case and whether the Petition met the requisite threshold for constitutional petitions.
21. On the first issue, the Petitioner submitted that the appointment of the 5th Respondent was characterized by opaqueness, lack of integrity, lack of accountability and non-compliance with the principles of advertisement, fair competition and merit as envisaged under Article 10 of the Constitution and Section 10 of the Public Service (Values and Principles) Act. It was argued that the Respondents had not demonstrated that the position was advertised, that qualified persons were afforded an opportunity to apply, or that interviews were conducted to identify the most suitable candidate.
22. Reliance was placed on Law Society of Kenya v Attorney General & Another; Judicial Service Commission (Interested Party) [2020] KEHC 10496 (KLR), where the Court emphasized the obligation of every person to respect, uphold and defend the Constitution and observed that any alleged constitutional violation is a serious affront to constitutionalism. Similar reliance was placed on Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] KEHC 10266 (KLR).
23. The Petitioner further submitted that the appointment was unlawful because of the 5th Respondent’s alleged negative listing by the CRB, which, in its view, violated the values and principles of public service under Article 232 of the Constitution. It was also contended that the appointment process failed to comply with the principle of public participation. In that regard, the Petitioner invoked Section 9(5) of the Employment Act, arguing that applicants for public office are required to furnish compliance or clearance certificates during the recruitment or approval process, and that this requirement was not met.
24. The Petitioner maintained that the positions advanced by the 4th and 5th Respondents were misleading and misguided as they relied exclusively on the State Corporations Act without considering the supremacy of the Constitution under Article 2. It was argued that the appointment was inconsistent with Articles 2 and 10 of the Constitution. The Petitioner further invoked Article 259 of the Constitution, submitting that constitutional provisions must be interpreted in a manner that promotes constitutional values, purposes and principles, advances the rule of law, and protects human rights and fundamental freedoms.
25. Reliance was also placed on the case of Mboya v Attorney General; National Assembly & another (Interested Parties) [2018] KEHC 6933 (KLR), as well as Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 others [2017] KECA 436 (KLR) and Community Advocacy and Awareness Trust & 8 Others v Attorney General; National Gender and Equality Commission (Interested Party) & 5 Others [2012] KEHC 5981 (KLR).
26. The Petitioner further submitted that the appointment contravened Section 10 of the Public Service (Values and Principles) Act as read together with Articles 232 and 73(2) of the Constitution. The Petitioner alleged that the Respondents knowingly conspired on the appointment of the 5th Respondent despite his alleged negative CRB status and that a proper vetting process would have revealed his unsuitability for the office. Consequently, it was argued that the appointment was illegal, unconstitutional, unlawful and void. In support of this proposition, reliance was placed on the case of Katiba Institute & Another v Attorney General & Another [2020] eKLR, where the Court observed that the values and principles of public service under Article 232 and the Public Service (Values and Principles) Act apply to state corporations and parastatals, and that the national values under Article 10 bind all state organs, state officers and public officers. Additional reliance was placed on Mboya v Githinji & Another; Pharmacy and Poisons Board (Interested Party) (Constitutional Petition E326 of 2023) [2024] KEHC 13598 (KLR).
27. With respect to the alleged violation of Articles 31 and 50(4) of the Constitution, the Petitioner submitted that the 4th and 5th Respondents had erroneously relied on the Credit Reference Bureau Regulations, 2020, which had been nullified by the High Court on 28th August 2023 for non-compliance with Section 11 of the Statutory Instruments Act. Although that decision is the subject of a pending appeal, the Petitioner contended that the Court of Appeal's interim orders had the effect of holding the applicability of the impugned regulations in abeyance pending determination of the appeal. Reliance was placed on National Assembly & 47 others v Okoiti & 169 others [2024] KECA 39 (KLR), where the Court emphasized that public interest lay in awaiting the determination of the appeal. Reliance was also placed on Cabinet Secretary, Ministry of Health v Aura & 13 others [2024] KECA 1195 (KLR).
28. The Petitioner further argued that the right to privacy under Article 31 of the Constitution is not absolute. Citing Bernstein v Bester No. 1996 (2) SA 75, it was submitted that the scope of privacy diminishes as an individual moves from the private sphere into communal and public activities. Similar reliance was placed on Kenya Akiba Micro Financing Limited v Ezekiel Chebii & 14 Others [2012] KEHC 5590 (KLR).
29. On Article 50(4), the Petitioner submitted that the production of evidence in support of alleged constitutional violations is not a mere technical matter and that the burden rests on the party seeking exclusion of evidence to demonstrate how its admission would prejudice a fair trial or undermine the administration of justice. Reliance was placed on Njenga v Dib Bank Kenya Limited [2023] KEELRC 1549 (KLR), where the Court held that it is insufficient for a party to merely allege prejudice without presenting cogent evidence demonstrating such prejudice.
30. The Petitioner also challenged the Respondents’ reliance on Section 6(1) of the State Corporations Act, contending that many of its provisions predate the Constitution of Kenya, 2010 and must therefore be construed in conformity with the Constitution. Reliance was placed on Rukaria v Attorney General; Debasso & another (Interested Parties) [2023] KEELRC 2824 (KLR), where the Court observed that there is no constitutional provision expressly empowering the President to appoint or dismiss chairpersons or members of state corporations and further held that state corporations fall within the public service framework contemplated under the Constitution and the mandate of the Public Service Commission.
31. Finally, the Petitioner submitted that the Petition satisfied the threshold established in Anarita Karimi Njeru v Republic (1976–1980) KLR 1272. It was urged that the Petition pleaded the alleged constitutional violations with the requisite precision, established a nexus between those violations and the reliefs sought, and therefore merited the grant of the orders sought.
4th Respondent’s Submissions
32. Gerivia Advocates LLP, appearing for the 4th Respondent, filed submissions dated 25th March 2026. In its counsel's view, the issues for determination are whether the Petition discloses a real controversy warranting adjudication by the Court, whether the issues raised are justiciable in light of the doctrine of separation of powers, whether the Petitioner demonstrated that the appointment of the 5th Respondent violated the Constitution, and whether the CRB report adduced by the Petitioner is admissible and of any probative value.
33. On the first issue, the 4th Respondent submitted that the Petition does not genuinely challenge the constitutionality of the appointment of the 5th Respondent, but rather constitutes an indirect contest to the statutory framework governing such appointments, particularly Section 6(1)(a) of the State Corporations Act, which empowers the President to make such appointments. It was contended that the Petition fails to distinguish the alleged unconstitutionality of the 5th Respondent’s appointment from other appointments made pursuant to the same statutory framework. Consequently, the 4th Respondent argued that the Petition falls short of the precision required in constitutional petitions as articulated in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR and amounts to a generalized challenge to the legislative framework governing appointments to State corporations. In contrast, the 4th Respondent maintained that it had placed before the Court evidence demonstrating that the impugned appointment was undertaken in accordance with the applicable statutory provisions, which themselves embody constitutional values including merit.
34. The 4th Respondent further argued that since the constitutionality of the relevant statutory provisions had not been challenged, the Court ought to decline the invitation to engage in what would amount to an academic or hypothetical exercise. In that regard, reliance was placed on Mwau v Attorney General (Petition No. 541 of 2013) [2015] KEHC 6979 (KLR) and National Conservative Forum v Attorney General [2013] KEHC 6018 (KLR), where the Court affirmed that judicial power, particularly in constitutional adjudication, ought not to be exercised in abstract or speculative circumstances.
35. On the question of justiciability, the 4th Respondent submitted that the issues raised in the Petition fall within the ambit of the doctrine of separation of powers. It was argued that the President’s power to appoint chairpersons of State corporations under Section 6(1)(a) of the State Corporations Act, together with the oversight role exercised by the 3rd Respondent, operates within a broader constitutional and statutory framework that includes the Mwongozo Code of Governance for State Corporations and the applicable Prudential Guidelines, all of which are intended to ensure compliance with the values and principles enshrined in Chapter Six of the Constitution.
36. In response to the Petitioner’s reliance on Rukaria v Attorney General(supra), the 4th Respondent submitted that the Court in that case merely directed the Respondents to prioritize a review of the State Corporation Act and other statutes with a view of harmonizing them with the Constitution but did not nullify these statutes, meaning they remain in force and binding. A similar observation, it was argued, was made in Katiba Institute & Another v Attorney General & Another (supra).
37. The 4th Respondent further postulated that the President’s power to make such appointments is an aspect of executive prerogative grounded in the doctrine of separation of powers. Reliance was placed on John Harun Mwau v Attorney General [2015] eKLR, where the Court declined to interfere with powers constitutionally vested in the President and observed that directing the President on the manner of exercising discretion would effectively amount to taking away powers exclusively vested in that office.
38. In support of the doctrine of non-justiciability, the 4th Respondent relied on Gachagua & 40 Others v Speaker, National Assembly & 15 Others; Law Society of Kenya & 7 Others (Interested Parties) [2024] KEHC 13473 (KLR), where the Court observed that the political question doctrine recognizes limitations on judicial intervention in matters constitutionally entrusted to the executive or legislative branches of government. It was submitted that judicial intervention is only warranted where procedural defects or constitutional violations are demonstrated, as emphasized by the Court of Appeal in Martin Nyaga Wambora & 3 Others v Speaker of the Senate & 6 Others [2014] eKLR, and similarly, in the case of Mumo Matemu (supra).
39. Against that backdrop, the 4th Respondent argued that the Petitioner had failed to demonstrate any procedural impropriety, illegality or irrationality in the appointment process. It maintained that the allegations relating to integrity and constitutional values were broad, generalized and unsupported by evidence, and therefore incapable of meeting the threshold necessary to justify judicial interference with an executive appointment. The Court was consequently urged, in deference to the doctrine of separation of powers, to decline the invitation to reassess the merits of an appointment lawfully made, including on the basis of the alleged failure to consider a CRB report.
40. The 4th Respondent further emphasized that the Petitioner had not challenged the appointment on grounds of non-compliance with the applicable statutory procedures or criteria. Rather, the challenge rests on broad allegations of violations of constitutional values, notwithstanding the undisputed fact that the appointment was undertaken in accordance with the governing statutory framework. It was argued, therefore, that the Petition merely invokes constitutional principles without demonstrating how the impugned appointment violated any specific constitutional provision.
41. To support this position, reliance was placed on Katiba Institute & Another v Attorney General & Another; Karangi & 128 Others (Interested Parties) (Petition No. 236 of 2018), where the Court held that appointments to parastatals and State corporations are governed by the State Corporations Act and other relevant statutes and that the legality of such appointments must be assessed against the statutory framework establishing the office. Similar reliance was placed on Katiba Institute & Another v Attorney General & Another, Nairobi High Court Petition No. 331 of 2016 [2020] eKLR and Tom Luusa Munyasya & Another v Governor, Makueni County & Another [2014] eKLR.
42. The 4th Respondent additionally submitted that the impugned statutory provisions enjoy a presumption of constitutionality until proven otherwise. Accordingly, having complied with the procedures prescribed by law in appointing the 5th Respondent, the 4th Respondent contended that the Petitioner had failed to establish any constitutional violation.
43. Regarding the CRB report relied on by the Petitioner, the 4th Respondent urged that it was obtained illegally and that its production violated the 5th Respondent’s rights under Articles 31(c) and 50(4) of the Constitution. It was submitted that the Court cannot consider evidence procured in contravention of established legal standards without undermining the integrity of the judicial process and the constitutional principles of fairness and justice. Reliance was placed on Kenya Railways Corporation & 2 Others v Okoiti & 3 Others [2022] KESC 68 (KLR), in which the Supreme Court held that illegally obtained evidence is inadmissible in civil proceedings, notwithstanding its relevance. On that basis, the Court was urged to expunge the CRB report from the record.
44. The 4th Respondent also disputed the Petitioner’s contention that the Credit Reference Bureau Regulations, 2020, are not in force. It was stated that following the High Court’s decision declaring the Regulations invalid, the Court of Appeal suspended that declaration pending the hearing and determination of Nairobi Civil Appeal No. E782 of 2023, observing that both the applicant and the public stood to suffer irreparable harm if the declaration remained operative. It was therefore submitted that the Regulations remain in force pending the determination of the appeal.
45. In conclusion, the 4th Respondent maintained that the Petition is devoid of merit, fails to disclose any justiciable constitutional issue, and does not satisfy the evidentiary threshold necessary to impugn the appointment of the 5th Respondent. It therefore urged the Court to find that the appointment was undertaken in full compliance with the Constitution and the applicable statutory framework and to dismiss the Petition.
5th Respondent’s Submissions
46. Dr CO Kenyariri Advocates LLP, for the 5th Respondent, filed submissions dated 11th December 2025.
47. In his submissions, the 5th Respondent’s counsel contested the admissibility of the CRB report relied upon by the Petitioner. He submitted that pursuant to Regulation 27 of the Credit Reference Bureau Regulations, 2020, CRB reports constitute confidential customer information and may be disclosed only to restricted entities. According to the 5th Respondent, the Petitioner does not fall within any of the categories of persons entitled to access such information, nor had the 5th Respondent furnished the report to him. Consequently, it was argued that the CRB report produced by the Petitioner was illegally obtained and therefore inadmissible, as its production violated Articles 31(c) and 50(4) of the Constitution. On that basis, the Court was urged to disregard the report.
48. The 5th Respondent further submitted that the allegation that he had been negatively listed by CRB was unfounded and, in any event, did not constitute a statutory disqualification under the Banking Act, the Prudential Guidelines, or any other law governing the appointment of directors. He contended that the 3rd Respondent is the statutory body mandated to assess the fitness and propriety of persons proposed for such appointments.
49. It was his submission that the 3rd Respondent considered all relevant information relating to the 5th Respondent and subsequently approved his appointment in accordance with the law. The 5th Respondent underscored that the exercise of the 3rd Respondent’s statutory mandate had not been challenged in the Petition and that any attempt by the Court to revisit the regulator’s determination would amount to a usurpation of the powers conferred upon it. He further argued that the Petitioner was guilty of laches, noting that although the impugned appointment was made in June 2023, the Petition was not instituted until 2025.
50. Turning to the substantive challenge to his appointment, the 5th Respondent maintained that the appointment of chairpersons of State corporations is expressly provided for under Section 6(1) of the State Corporations Act. He therefore argued that his appointment by the President was lawful, having been undertaken pursuant to that provision. He further submitted that he underwent the mandatory vetting process prescribed under Section 53 of the Banking Act, the Prudential Guidelines and the suitability assessment conducted by the 3rd Respondent, all of which culminated in the approval of his appointment.
51. The 5th Respondent also rejected the contention that public participation was required in the appointment process. In his view, where legislation provides a specific mechanism for appointment and oversight, compliance with that mechanism is sufficient, and there is
[...truncated]