NAIROBI, Kenya Sep 11 – The High Court has stayed proceedings in a petition challenging the constitutionality of the 2022 nomination and appointment of Principal Secretaries over alleged violation of the two-thirds gender rule.
Justice of the High Court sitting at the Milimani High Court declined to determine the petition filed by the Katiba Institute, citing an unresolved jurisdictional dispute between the High Court and the Employment and Labour Relations Court (ELRC).
The court ruled that proceeding with the case while a similar matter remains before the ELRC could result in parallel proceedings and potentially conflicting decisions.
The petition, filed in November 2022, challenged the process used to nominate and appoint 51 Principal Secretaries, arguing that the list submitted by President William Ruto did not comply with the constitutional requirement that no more than two-thirds of members of appointive bodies should be of the same gender.
Of the 51 nominees announced in November 2022, 39 were men and 12 were women, translating to 76 per cent male and 24 per cent female representation.
Katiba Institute argued that the composition of the list violated Articles 27(6) and 27(8) of the Constitution, which provide for equality, affirmative action and the two-thirds gender principle.
The petitioners also challenged the failure by the Public Service Commission (PSC) to publish the names of 250 candidates it had reportedly forwarded to the President for consideration.
They argued that the failure to disclose the list violated the constitutional right to access information under Article 35 and undermined the principles of transparency and accountability in public appointments.
In its ruling, the High Court noted that similar proceedings had been filed before the ELRC, including a petition challenging the nomination, vetting and appointment of the 51 Principal Secretaries.
The ELRC had previously held that it had jurisdiction to determine the dispute.
The matter was subsequently taken to the Court of Appeal, which on November 22, 2024, declined to conclusively determine the competing jurisdictional question between the High Court and the ELRC.
The Court of Appeal said determining the issue at that stage could prejudice another appeal dealing with the same jurisdictional question.
The High Court said the issue had therefore remained unresolved.
“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,” the court held.
The court said the ELRC is a court of equal status and had already affirmatively assumed jurisdiction over the dispute.
It consequently declined to determine the petition on its merits, saying doing so before the jurisdictional question is settled would undermine judicial comity.
The court ordered a stay of further proceedings pending a definitive determination by the Court of Appeal on whether the High Court or the ELRC should handle petitions concerning the constitutionality of the appointment of Principal Secretaries.
The case will be mentioned on December 3, when the parties are expected to update the High Court on the position reached by the Court of Appeal.
The ruling means the High Court has not made a final determination on whether the 2022 Principal Secretary appointments violated the two-thirds gender rule.
The government had urged the court to dismiss or terminate the petition, arguing that the dispute had been overtaken by subsequent changes in the composition of the Principal Secretaries.
The State told the court that President Ruto reorganised the National Executive in March 2025, resulting in a structure comprising 57 Principal Secretaries, 17 of whom were women.
The government argued that the new composition translated to 29.82 per cent female representation and effectively addressed the gender balance concerns raised by the petitioners.
The respondents also argued that the petition was sub judice and res judicata because similar issues had already been litigated before the ELRC.
However, the High Court did not conclusively determine those issues after finding that the unresolved jurisdictional question required the proceedings to be stayed.
The case will therefore remain pending as the courts await a definitive position on which court has jurisdiction to determine the constitutional challenge.
