The High Court has suspended the hearing of a case challenging President William Ruto’s 2022 appointment of 51 Principal Secretaries over alleged failure to meet the constitutional two-thirds gender rule, pending a decision on which court has the authority to determine such disputes.
Justice Lawrence Mugambi said he would not proceed with the case, filed by Katiba Institute, until the question of jurisdiction is settled, noting that the Employment and Labour Relations Court (ELRC) could well be the appropriate forum to hear it instead.
He pointed to a pending appeal filed by Nakuru-based surgeon Dr Magare Gikenyi before the Court of Appeal, which is yet to authoritatively determine whether the ELRC or the High Court holds jurisdiction over cases concerning Principal Secretary appointments.
“It is evident that the issue of jurisdiction was raised in the Employment and Labour Relations Court, which is a court of equal status to the current court. It affirmatively found that it has jurisdiction to deal with the matter,” Mugambi said, adding: “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 and, despite the issue of competing jurisdiction as between the High Court and the 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 the ELRC, has jurisdiction over this matter.”
The dispute traces back to a petition Gikenyi filed in December 2022, shortly after Ruto appointed the 51 Principal Secretaries on December 2 that year. Gikenyi argued that only 11 women featured among the 51 appointees, a representation of just 21 per cent, falling well short of the two-thirds gender threshold set out in the Constitution.
He further contended that the appointments failed to adequately reflect the ethnic, regional and cultural diversity the Constitution requires of such appointments. Separately, Gikenyi also challenged Ruto’s appointment of Bernice Sialaal Lemedeket as Principal Administrative Secretary to the National Police Service Commission, arguing that the Constitution makes no provision for such a position to exist at all.
Gikenyi’s case has already run into procedural setbacks once before. Both the ELRC and the Court of Appeal previously struck out his petition on technical grounds, ruling that he should first have exhausted a statutory process allowing individuals to submit evidence to Parliament contesting a nominee’s suitability before that nominee’s appointment is approved.
The Attorney General, opposing the case, argued that Gikenyi’s failure to exhaust that parliamentary process rendered his petition premature and incompetent, and urged the court to find that he had not raised a ripe or justiciable claim. The State’s legal team went further, arguing that the issues Gikenyi raised are inherently political and fall squarely within the constitutional mandate of the Executive and Legislature, meaning the courts should not interfere with such presidential appointments at all.
The National Assembly, represented separately, argued that Gikenyi lacked standing to bring the petition in the first place, given the existence of an alternative statutory mechanism for resolving exactly this kind of grievance.
“The appeal fails to raise any substantive constitutional issues that would warrant the court’s intervention, as the appeal does not challenge the Court of Appeal’s interpretation or application of the Constitution,” lawyers for the National Assembly told the court.
They pointed specifically to Section 6(9) of the Public Appointments (Parliamentary Approval) Act, which they said provides a clear avenue for anyone aggrieved by the shortlisting, nomination, vetting or appointment of a Principal Secretary to seek redress directly before the National Assembly, a statutory framework they maintained already offers an adequate and effective remedy.
Katiba Institute, for its part, raised a separate transparency concern against the Public Service Commission (PSC), arguing that the Commission had failed to publish and publicise the names of the 250 individuals it forwarded to the President as potential nominees for the roles.
The organisation argued this omission breached the constitutional requirement that public officers act transparently and provide information to the public in a timely and accurate manner, in addition to its core argument that the final list of appointees failed to achieve proper gender balance.
The PSC, responding to that specific claim, said it had in fact made public the names of 477 shortlisted candidates at an earlier stage of the process and had invited public views on them at the time.
With Justice Mugambi’s ruling, all of these substantive questions—on gender balance, diversity, transparency and the legality of the Principal Administrative Secretary role—remain unresolved for now, with the case on hold until the Court of Appeal delivers a definitive ruling on which court, the High Court or the ELRC, has jurisdiction to hear it.
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