Kenya High Court: PS Gender Rule Jurisdiction Stay Issued

• The Kenya High Court has stayed proceedings in a petition challenging the 2022 nomination of Principal Secretaries over alleged violation of the two-thirds gender rule.
• The Katiba Institute's petition highlighted that 39 men and 12 women were nominated out of 51, arguing this contravened Articles 27(6) and 27(8) of the Constitution.
• The High Court's decision stems from an unresolved jurisdictional dispute with the Employment and Labour Relations Court (ELRC), which had previously asserted jurisdiction over similar matters.
• The Court of Appeal, on November 22, 2024, declined to definitively settle this jurisdictional question, citing potential prejudice to another ongoing appeal.
• The stay aims to prevent parallel proceedings and conflicting decisions, upholding judicial comity until the Court of Appeal provides clarity on which court should handle such public appointment challenges.

The High Court determined that proceeding with the case while a similar matter was pending before the ELRC could lead to parallel proceedings and potentially contradictory judicial outcomes, necessitating a pause until this foundational issue is resolved.

The Kenya High Court has issued a stay on proceedings concerning a petition that questions the constitutionality of the 2022 nomination and appointment of Principal Secretaries (PS). This significant decision, delivered by a Justice of the High Court sitting at the Milimani High Court, means the court will not currently rule on the merits of the case, which alleges a violation of the two-thirds gender rule in public appointments.

The petition, initiated by the Katiba Institute in November 2022, specifically challenged the process used to select the 51 Principal Secretaries. It contended that the list presented by President William Ruto did not adhere to the constitutional mandate requiring that no more than two-thirds of members in appointive bodies be of the same gender. The nominated group comprised 39 men and 12 women, resulting in a 76% male and 24% female representation, which the petitioners argued fell short of the constitutional threshold.

The court's decision to implement a Kenya High Court PS gender rule jurisdiction stay was primarily driven by an ongoing and unresolved jurisdictional dispute between the High Court and the Employment and Labour Relations Court (ELRC). The High Court determined that proceeding with the case while a similar matter was pending before the ELRC could lead to parallel proceedings and potentially contradictory judicial outcomes, necessitating a pause until this foundational issue is resolved.

The Katiba Institute's challenge to the Principal Secretaries nomination constitutionality is rooted in specific provisions of the Kenyan Constitution. The petitioners argued that the composition of the 2022 PS list contravened Articles 27(6) and 27(8) of the Constitution, which enshrine principles of equality, affirmative action, and the two-thirds gender rule in Kenya. These articles are fundamental to ensuring equitable representation in public service.

Beyond the gender rule, the petition also raised concerns about transparency in the appointment process. The Katiba Institute criticized the Public Service Commission (PSC) for its failure to publicly disclose the names of 250 candidates it had reportedly forwarded to the President for consideration. This omission, they contended, violated the constitutional right to access information under Article 35 and undermined the broader principles of transparency and accountability that are crucial for Kenya two-thirds gender rule public appointments and other public sector selections.

A central factor in the High Court's decision was the existing High Court ELRC jurisdictional dispute. The court noted that similar proceedings, specifically challenging the nomination, vetting, and appointment of the 51 Principal Secretaries, had already been filed before the ELRC. The ELRC had previously asserted its jurisdiction to hear and determine such disputes, creating a direct conflict over which court should preside.

This jurisdictional question was subsequently referred to the Court of Appeal. However, on November 22, 2024, the Court of Appeal declined to issue a definitive ruling on the competing jurisdictional claims between the High Court and the ELRC. The appellate court indicated that a conclusive determination at that stage could prejudice another appeal that was also addressing the same jurisdictional issue. Consequently, the High Court acknowledged that the matter of primary jurisdiction remained unresolved.

In its ruling, the High Court emphasized that it would be inappropriate to continue with the trial given the factual similarities with the ELRC case. Recognizing the ELRC as a court of equal status that had already assumed jurisdiction, the High Court declined to rule on the petition's merits. This decision was made to uphold judicial comity among Kenya courts, preventing a situation where one court might undermine the authority or proceedings of another before a higher court provides clarity on the jurisdictional boundaries. The government, for its part, had urged the High Court to dismiss the petition entirely, arguing that subsequent changes in the composition of Principal Secretaries had rendered the dispute moot.

The High Court's stay order means that, for now, there has been no final determination on whether the 2022 Principal Secretary appointments indeed violated the two-thirds gender rule. The substantive issues raised by the Katiba Institute regarding the Principal Secretaries nomination constitutionality remain in abeyance, awaiting a resolution of the procedural conflict.

Further proceedings in the High Court are now on hold, pending a definitive ruling from the Court of Appeal regarding whether the High Court or the ELRC holds the appropriate jurisdiction for petitions challenging the constitutionality of Principal Secretary appointments. The case is scheduled for mention on December 3, 2026, at which point the parties are expected to provide an update on the Court of Appeal's position, highlighting the ongoing procedural complexities in such high-profile public appointment challenges.

This ruling highlights an ongoing jurisdictional conflict between Kenya's High Court and the Employment and Labour Relations Court regarding challenges to public appointments. Lawyers advising on such matters must consider potential forum shopping issues and the risk of procedural delays until the Court of Appeal provides definitive clarity on which court has primary jurisdiction.

Source: Original reporting via The Star, Kenya