Kenya High Court: Stays PS Gender Rule Jurisdiction Dispute

• The High Court has stayed a petition challenging the constitutionality of 2022 Principal Secretary appointments over alleged two-thirds gender rule violations.
• This decision stems from an unresolved jurisdictional dispute between the High Court and the Employment and Labour Relations Court (ELRC).
• The Katiba Institute's petition argued that 39 of 51 initial PS nominees were men, violating constitutional gender principles under Articles 27(6) and 27(8).
• The Court of Appeal previously declined to definitively settle the jurisdictional question on November 22, 2024, leading the High Court to prioritize judicial comity.
• The substantive issue of gender rule compliance for the 2022 appointments remains undetermined, pending a Court of Appeal ruling on jurisdiction, with a mention scheduled for December 3, 2026.

The High Court's decision means that the substantive question of whether the 2022 Principal Secretary appointments violated the two-thirds gender rule remains unaddressed on its merits.

A petition challenging the constitutionality of the 2022 nomination and appointment of Principal Secretaries in Kenya, specifically regarding alleged violations of the two-thirds gender rule, has seen its proceedings stayed by the High Court. Sitting at the Milimani High Court on September 11, the court declined to make a determination on the merits of the case, which was brought by the Katiba Institute. The decision to stay the proceedings stems from an ongoing and unresolved jurisdictional dispute between the High Court and the Employment and Labour Relations Court (ELRC).

The court emphasized that continuing with the trial while a similar matter is concurrently before the ELRC could lead to parallel proceedings and potentially conflicting judicial outcomes. This concern for judicial comity, which underscores the need for courts of equal status to respect each other's processes, was a primary factor in the High Court's decision. Consequently, the High Court has ordered a stay of further proceedings until the Court of Appeal provides a definitive ruling on whether the High Court or the ELRC holds the appropriate jurisdiction to hear petitions concerning the constitutionality of Principal Secretary appointments.

The Katiba Institute PS appointments challenge, originally filed in November 2022, specifically questioned the process used for the nomination and subsequent appointment of 51 Principal Secretaries. The petitioners argued that the list submitted by President William Ruto failed to comply with the constitutional requirement that no more than two-thirds of members in appointive bodies should be of the same gender. Analysis of the 51 nominees announced in November 2022 revealed a composition of 39 men and 12 women, translating to a 76 percent male and 24 percent female representation.

This composition, according to the Katiba Institute, directly violated Articles 27(6) and 27(8) of the Constitution of Kenya, which enshrine principles of equality, affirmative action, and the two-thirds gender rule. Beyond the gender balance, the petitioners also raised concerns about transparency, challenging the Public Service Commission's (PSC) failure to publish the names of 250 candidates reportedly forwarded to the President for consideration. They contended that this omission infringed upon the constitutional right to access information under Article 35 and undermined the fundamental principles of transparency and accountability in public appointments.

The High Court ELRC jurisdiction dispute Kenya is central to the current stay. The High Court noted that similar proceedings, including a petition challenging the nomination, vetting, and appointment of the 51 Principal Secretaries, had already been initiated before the ELRC. The ELRC had previously asserted its jurisdiction to determine the dispute, setting the stage for the current jurisdictional conflict.

This complex issue was subsequently brought before the Court of Appeal. However, on November 22, 2024, the Court of Appeal opted not to conclusively resolve the competing jurisdictional question between the High Court and the ELRC. The appellate court reasoned that a definitive determination at that stage could potentially prejudice another appeal that was dealing with the identical jurisdictional question, leaving the matter unresolved. The High Court, acknowledging the ELRC as a court of equal status that had already affirmatively assumed jurisdiction, concluded that it would be inappropriate to proceed with the trial on its merits before this fundamental jurisdictional question is settled, thereby upholding the principle of judicial comity public appointments Kenya.

In response to the petition, the government had urged the High Court to dismiss or terminate the case, asserting that the dispute had been rendered moot by subsequent changes in the composition of Principal Secretaries. The State informed the court that President Ruto had reorganized the National Executive in March 2025, resulting in a new structure comprising 57 Principal Secretaries. Crucially, this updated composition included 17 women.

The government argued that this new arrangement translated to 29.82 percent female representation, effectively addressing the gender balance concerns initially raised by the petitioners. Despite these arguments, the High Court's decision to stay proceedings means that the substantive question of whether the 2022 Principal Secretary appointments violated the two-thirds gender rule remains unaddressed on its merits. The case is scheduled for a mention on December 3, 2026, when parties are expected to provide the High Court with an update on the position reached by the Court of Appeal regarding the jurisdictional dispute.

Lawyers advising on public appointments or constitutional challenges in Kenya should note that the jurisdictional boundaries between the High Court and ELRC remain unsettled, impacting where future cases on appointment constitutionality can be filed. The substantive issue of PS gender rule compliance is still pending a definitive Court of Appeal ruling on this jurisdictional dispute, meaning there is no final precedent on the matter yet.

Source: Original reporting via news reports