The High Court has frozen a constitutional challenge to the 2022 appointment of 51 Principal Secretaries, leaving the dispute over gender balance unresolved.
The court suspended further proceedings in a petition filed by Katiba Institute after finding that a separate case before the Employment and Labour Relations Court raises substantially similar issues.
“It would be remiss for this Court to continue the trial of this matter fully when it is clear that the factual matrix upon which it is premised is similar to what is before the ELRC (a Court of equal status that has already affirmatively assumed jurisdiction) and despite the issue of competing jurisdiction as between the High Court and ELRC, the Court of Appeal has not authoritatively pronounced itself on the matter by clarifying with certainty which of the two Courts, between this Court and ELRC, has jurisdiction over this matter,” the judge said.
The legal dispute began after the Public Service Commission advertised PS positions in September 2022, initially shortlisting 477 applicants before replacing the list with 585 candidates to improve inclusion. Interviews were held from October 12 to 22, after which 250 names were sent to President William Ruto.
On November 2, 2022, the President announced 51 nominees, comprising 39 men and 12 women; hence, the nomination list was 76 percent male and 24 percent female.
Katiba Institute challenged the process, arguing that the list breached the Constitution’s requirement that no more than two-thirds of members of appointive bodies should be of the same gender.
The institute also accused the PSC of failing to publish the 250 names forwarded to the President, saying this breached values and principles of governance, including access-to-information and transparency requirements.
The State disputed the claims and said the commission had followed its legal role. The commission said it expanded the shortlist to improve inclusion.
Further, the commission said its role ended after forwarding recommended names to the President.
The case became entangled with parallel litigation before the Labour Court, which asserted jurisdiction over the dispute. However, the resulting litigation produced an unresolved contest over which court, between the Labour Relations Court and the High Court, should hear constitutional challenges to PS appointments.
The Law Society of Kenya and two other petitioners challenged the nominations before the Labour Relations Court, arguing that the list breached constitutional requirements on gender, ethnic and regional balance. The court initially restrained Parliament from considering the nominees pending the hearing of the case.
However, weeks later the court struck out the consolidated petitions as premature, saying the petitioners had to await completion of Parliament’s approval process. Parliament subsequently approved the nominees on December 1, 2022, after which President Ruto appointed the 51 Principal Secretaries.
Justice Mugambi noted that the Court of Appeal also considered the jurisdiction question in November 2024 but declined to settle it, saying doing so could affect another appeal concerning the same issue.
The judge said continuing with the Katiba Institute’s petition would create parallel proceedings while another court of equal status had already assumed jurisdiction.
“In the circumstances, I decline to hold parallel proceedings by determining this matter with finality before this position is known,” he said.
The judge said the proper course was to preserve the case until the jurisdiction question is settled. “The prudent and proper course to take would be to stay the instant proceedings to await the Court of Appeal’s definitive determination,” he said.
He ordered the stay and directed that the matter be mentioned on December 3, 2026, for an update on the Court of Appeal position.
The State had separately argued that the gender dispute had been overtaken by events after President Ruto reorganized the National Executive in March 2025.
It said 57 Principal Secretaries were appointed, including 17 women, which the State said met the constitutional threshold. The court heard that the 2025 reshuffle led to “29.82percent female representatives effectively meeting the 30percent threshold, thus adhering to the two-thirds gender principle”.
