https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10592

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAKURU** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. E 011 OF 2024** **BETWEEN** **DR. MAGARE-GIKENYI B……………………………………1st PETITIONER** **LINAH NYABATE KINGSLEY……………………………...2ND PETITIONER** **PHILEMON ABUGA NYAKUNDI…………………………...3RD PETITIONER** **PAULINE NDUTA KINYANJUI..........................................4TH PETITIONER** **SHALLUM KAKAK NYAUNDI………………………………5TH PETITIONER** **JAMLICK OTONDI ORINA.................................................6TH PETITIONER** **AGNES WAMBUA WANZUU…….…………………………7TH PETITIONER** **=VERSUS=** **MOI TEACHING AND REFERRAL HOSPITAL..............1ST RESPONDENT** **MOI TEACHING & REFERRAL HOSPITAL BOARD….2ND RESPONDENT** **SITOYO LOPOKOIYOT..................................................3RD RESPONDENT** **DR. PHILIP KIPTANUI KIRWA.......................................4TH RESPONDENT** **PERIS BIRICHI……………………………………………..5TH RESPONDENT** **JUDITH JEROTICH………………………………………...6TH RESPONDENT** **MESHACK KOIMA………………………………………....7TH RESPONDENT** **JAMES MUCHIRI NDUNGU...........................................8TH RESPONDENT** **DR. MICHAEL GICHANGI………………………………...9TH RESPONDENT** **GEORGE OMBUA………………………………………..10TH RESPONDENT** **DR. ERNEO NYAKIBA…………………………………...11TH RESPONDENT** **PROF. ROBERT TENGE KUREMU…………………….12TH RESPONDENT** **MR. FELIX K. KOSKEI…………………………………...13TH RESPONDENT** **PUBLIC SERVICE COMMISSION………………………14TH RESPONDENT** **HON. ATTORNEY GENERAL……………………….….15TH RESPONDENT** **DR. BENJAMIN KIPCHUMBA TARUS………………...16TH RESPONDENT** **DR. OWEN MENACH…………………………………….17TH RESPONDENT** **DR. WILSON K. ARUASA……………………………….18TH RESPONDENT** **ANN CHEMORSIO........................................................19TH RESPONDENT** **ENG. JOSEPH MUNGAI KAMAU………………………20TH RESPONDENT** **ATHI WATER WORKS DEVELOPMENT AGENCY…21ST RESPONDENT** **AGNES KALEKYE NGUNA………………..……………22ND RESPONDENT** **KENYA BROADCASTING CORPORATION………….23RD RESPONDENT** **ABDALLAH MOHAMMED HATIMY…………………....24TH RESPONDENT** **KENYA NATIONAL SHIPPINGLINE LTD………….….25TH RESPONDENT** **=AND=** **INTERESTED PARTIES;** | | | | --- | --- | | 1. **DR. JOHN CHERUIYOT CHUMBA** 2. **DR. EVANS RONO CHERUIYOT** 3. **DR. SIMON KIPCHIRCHIR KIBIAS** 4. **TITUS TARUS** 5. **DR. ANDALE THOMAS OKWARO** 6. **DR. MAURICE NYONGESA WAKWABUBI** 7. **DR. EVERLINE MUSANGI NYAMAI** 8. **DR. ANDREW JOSEPH OJIAMBO WANDERA** 9. **DR. RICHARD MOGENI MOGAKA** 10. **DR. CHEPTINGA PHILIP KIPKURUI** 11. **PROF. MICHAEL KIPTOO** 12. **KENNEDY ADONGO** 13. **ARNOLD MANGI MWABILI** 14. **MACDONALD SABWA** 15. **JOSPHAT MUTUKU** 16. **MARTIN ALFRED WEKESA WAFULA** 17. **EDWARD S. OMONDI** 18. **ALIO IBRAHIM ADEN** 19. **DR. STANLEY CHERUIYOT BII** 20. **DR. JUSTA WAWIRA KIURA MWANGI** | 1. **DR. NICKSON KIPCHIRCHIR KIPKORIR** 2. **ZETH OUMA OMOLLO** 3. **ANANGWE MUNALA SAMSON** 4. **DR. ISAAC OBORE OMERI** 5. **DR. ISAIAH TANUI** 6. **WILLY MUKOMA MUYUTHE** 7. **BEN SAMOEI** 8. **RACHEL MUSYOKI** 9. **JOSEPH K. CHOGE** 10. **DR. TARUS FELIX KIPLIMO** 11. **FRANKLYNE MISIKO OMUHOLO** 12. **KUASHIK HALDER** 13. **BENSON BIWOTT** 14. **DAVID NAMU KARIUKI** 15. **DR. ROBERT KIPLAGAT RONO** 16. **DR. GIDEON KIBET TOROMO** 17. **DR. EDWARD KIMUTAI SEREM** 18. **JULIANA SYOWEU TISNANGA** 19. **WEKESA CHRISTINE NAKHUMICHA** 20. **DR. SAMSON KIPKURGAT NDEGE** 21. **DR. ALEXANDER IRUNGU WANJIRU** 22. **LUCY AKOTH OKOTH** 23. **DR. NGOITSI HENRY NONO** 24. **DR. WILSON KIPTOO SUGUT** 25. **DR. VICTOR KIPYEGON MAINA.** 26. **DR. KANDIE NG'OCHOCH** 27. **DR. PHILIPH KIPKIRUI TONUI.** | **JUDGMENT** **Introduction** 1. The 1st Petitioner is a Consultant Trauma and General Surgeon working for the County Government of Nakuru and is a resident of Eldoret and Nakuru. He Kenyan Medic by profession, human rights activist, a parent and patriotic citizen of Kenya who looks into a future of Kenya where society strictly follows rule of law for betterment of society. He is a law-abiding citizen, a public-spirited individual, and a human rights defender. His objectives are, to promote democratic governance, non-discrimination, stop ethnic marginalization, uphold the rule of law/constitutionalism, defending human rights, and agitating for sustainable economic development for the prosperity and wellbeing of the general population in this lovely Country of ours. 2. The 2nd to the 7th Petitioners are described as law abiding citizens of Kenya, public spirited individuals, and human rights defenders. 3. The Petitioners collectively moved the court on the strength of **Article 3(1)** which provides that every person has an obligation to respect, uphold and defend the Constitution of Kenya 2010; under **Article 22(1)** of the Constitution Article which states that every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened; pursuant to **Article 22(2)(c)** which states that in addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by person acting in the public interest; contending that, **Article 23(1)** of the constitution, the High Court and/or special courts (in **article 162(2)** has jurisdiction, in accordance with **Article 165**, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. 4. A cursory look at the Petition is indicative of the lamentation of the Petitioners of recruitment of the Chief Executive Officers of Moi Teaching and Referral Hospital, Athi Water Works Development Agency, Kenya Broadcasting Corporation and Kenya National Shipping line Ltd not being on merit and of being on ethnic considerations and in contravention of the constitution, it is also alleged that, Athi Water Works Development Agency, Kenya Broadcasting Corporation and Kenya National Shipping line Ltd are operating without requisite constitutive statutory instruments thereby seeking the following seventeen (17) Reliefs/Prayers; 5. ***A Declaration that, the Announcement, shortlisting, interviewing and eventual appointment of Chief Executive Officer or any other post of the 1st Respondent-Moi Teaching and Referral Hospital and all other respondent institutions, the Respondents must at all material time meet the requirements of the National Values and principles of Governance and Public Service on appointments in Public Service provided at inter alia Articles 2, 10, 27, 73 and 232 of the constitution and relevant laws.*** 6. ***A Declaration that, the purported announcement and/or appointment and/or gazettement of the 4th Respondent and/or any person as Chief executive officer of the 1st Respondent-Moi Teaching and Referral Hospital by the Respondents and/or any other person as communicated by the press release and/or gazette notice and/or any letter and/or any document dated 17/5/2024 or any other date without constitutional, statutory and all enabling provisions of the law inter alia article1,3,10,19,20, 27,28,41,43,47,73,75,129,131,132,135,154 AND 232,233,248,249, and 232 of the constitution and other relevant laws is unconstitutional and therefore, invalid, null and void ab initio.*** 7. ***A Declaration that, the purported recruitment process, action and/or appointment as Chief executive officer of the 1st Respondent Moi Teaching and Referral Hospital without constitutional and statutory provisions is contrary to article 1,2,3,10, 27,28,35,41,43,54,55,56,73,75,94,201 and 232 of the constitution (2010) and other relevant laws is unconstitutional and therefore, invalid, null and void ab initio.*** 8. ***A Declaration is hereby made that, the purported introduction/requirement of boards of state corporations requiring them concurrence of their appointment with the 13th Respondent, chief of staff head of the public service, Mr. Felix K. Koskei, and/or the president and/or any other person is usurpation of powers of the respective state corporations’ boards has no basis in law hence its illegal and unconstitutional, Null and Void.*** 9. ***A Declaration is hereby made that, there is no legal requirement by boards of state corporations requiring them concurrence of their appointment with the 13th Respondent, chief of staff head of the public service, Mr. Felix K. Koskei or any other office/officer.*** 10. ***A Declaration that, the Respondent or any person’s actions and/or omissions done and/or omitted during the period when Statutory Instruments for the respondents had expired/not valid/not in force has no force in law hence Null and Void.*** 11. ***A Declaration that, the 14th Respondent (public service commission) and 15th Respondent the Honourable Attorney General failed to advise the Respondents of the correct way of handling state corporations’ appointments*** 12. ***A Declaration that, the short listing of candidates who did not meet the required qualifications as outlined in the advert is illegal and goes against good governance and public service commission and other relevant constitutional provisions, relevant statutes and hence the same is illegal and unconstitutional*** 13. ***The court is pleased to issue an Order of Judicial Review by way of CERTIORARI, quashing the respondent’s press release and or gazette notice and/or any document dated 17/5/2024 or any other date produced for the purpose of the purported appointment of any person as Chief executive officer of the 1st Respondent-Moi Teaching and Referral Hospital.*** 14. ***The court is pleased to issue an Order of Judicial Review by way of CERTIORARI Quashing the appointment of Dr. Philip Kiptanui Kirwa 4th Respondent herein as the 1st Respondent hospital chief executive officer, CEO.*** 15. ***An Order of Judicial Review by way of PROHIBITION, prohibiting the Respondents and/or interested party and /or any other person from performing and/or in any way acting in any way or manner as Chief executive officer of the 1st Respondent-Moi Teaching and Referral Hospital Principal.*** 16. ***An Order of Judicial Review by way of MANDAMUS, compelling the respondents herein to initiate a fresh proper/legal process of filling the positions of Chief executive officer of the 1st Respondent-Moi Teaching and Referral Hospital and other institutions as contemplated in the statutory instrument, constitution and all enabling provisions of the law.*** 17. ***The court is pleased to issue an Order of Judicial Review by way of CERTIORARI, quashing the Respondent’s press release and or gazette notice and/or any document dated 17/5/2024 or any other date on appointment of 20Th, 22nd and 24Th Respondents as Chief Executive Officer (CEO) and/or managing directors of 21St, 23rd and 25Th state corporations/entities respectively;*** 18. ***An Order of Judicial Review by way of MANDAMUS, compelling the respondents herein to initiate a fresh proper/legal process of filling the positions of Chief executive officers/managing directors of the 21St, 23rd and 25Th state corporations/entities;*** 19. ***An Order of Judicial Review by way of MANDAMUS, compelling the respondents to perform staff audit of ALL members of staff (from top level management-middle and to lowest level staff members) with view of aligning them with constitutional and legal requirements inter alia on issues of regional/ethnic representation/balance, gender balancing, PWD and other requirements as provided in institutional human resource policy, statutory and constitutional requirements.*** 20. ***That, any other order or/and modification of Petitioner’s prayer(s) which this honourable court may deem fit so as to a achieve objects of justice for majority of Kenyans as a whole; AND*** 21. ***Costs of this Petition to be borne by Respondents.*** 22. Paragraph 119 of the Petition refines the following as some of the eighteen (18) alleged specific constitutional violations committed; 23. **That, Legal Notice No. 78 of 1998 which established Moi Referral Hospital as a State corporation under the State Corporations Act as a Statutory Instruments having lapsed &, therefore, have no force of law. This means the respondents are not following any law and are following their law of the jungle contrary to Article 90(4) of the constitution.** 24. **That, the appointments the 1st Respondent CEO without being open to the public on the process of recruitment of the CEO in secrecy and without, transparency and accountability is contravention of article 10 of the constitution 2010** 25. **That, by Respondents using public office to do shoddy work with predetermined outcome of short-listing applicants is against Article 73 and 75 of the constitution** 26. **That, by Respondents conducting the recruitment without be accountable to the public in their administrative action is contrary to Article 232(1)(d)** 27. **By Respondents cherry picking their people they want shortlisted as opposed to open system where the public is information of the process and in the process discriminate other communities is contrary to article 10, 27,73,75 and 232 of the constitution** 28. **That, by leaving out other applicants who would have benefitted had the recruitment being fair is denial of economic and social rights and is poor labour practices contrary to Article 41 and 43 of the constitution.** 29. **By the Respondents not considering women, people with disability and minority groups, then it is contravention of article 27,54,56 and 232 of the constitution 2010** 30. **By the Respondents allowing the 4th Respondent to be involved in process of recruitment of the next CEO where he is also a candidate goes against good governance against *“nemo judex en causa sua”*-no one should be made a judge in their cause) is contravention of Article 10, 73,75 of the constitution 2010.** 31. **That, the appointments the 1st Respondent CEO without being open to the public on the process of recruitment of the CEO in secrecy and without, transparency and accountability is contravention of article 10 of the constitution 2010.** 32. **That, improper procedure used to recruit CEO with conflicted interest leads to loss of public funds since public funds are used for other purposes is non-prudent use of scarce public financial resources is contravention of article 201 of the constitution 2010.** 33. **The actions of Respondents not using transparency and provision to the public of timely, accurate information and using merit and fair competition as the only method for shortlisting candidates from Kenya's diverse communities; is against article 232 of the constitution** 34. **The humiliations which applicants underwent even taking almost one month before even getting feedback and at the same time subjecting them to a process which Respondent know has predetermined outcome indignities the applicants contrary to article 28 of the constitution.** 35. **That, the Respondents have not demonstrated that there is a rational relationship between the object sought (inclusive & diverse appointment) to be achieved and the means chosen in these impugned appointments. The legitimate purpose is determined by the Constitution itself which requires that such appointments must reflect ethnic and regional diversity while taking into account the rights of special groups like the youth, the marginalized and person. There is no rationality and statutory considerations in the appointments. Contrary actions and to violations of article 10,27,28, 73,75 and 232 of the constitution.** 36. **That, the Respondents violated Articles 2 (1) & 2;3 10, 27, 73 and 232 on the supremacy of the constitution binds all persons and all State organs by claiming to exercise State authority except as authorized under the Constitution:** 37. **That, the Respondents shortlisted five (5) out of the 8 candidates from one region/ethnicity is contrary to article 10 and 232.** 38. **That, the failure by the Respondents to give the Petitioner accurate information and correct the irregularities in their procedures even upon a demand by the Petitioner amounted to acts of impunity in violation of the provisions of Articles 10, 73 and 232 of the constitution;** 39. **That, the appointment was made in consultation/concurrence with chief of staff and head of the public service, Mr. Felix K. Koskei, is not based on any law or constitution. This is bad governance contrary to article 10,73,75,232 of the constitution; and** 40. **That, the office chief of staff and head of the public service, is not envisaged to make appointments nor provide any concurrency to the appointments of CEOs and managing directors of state corporations as doing so is contrary to article 10, 248,249(3) as read to PSC Act no. 10 of 2017 as read with and state corporations Act-cap 446 of the laws of Kenya.** 41. Only the following parties participated; 42. The 1st to the 13th Respondent Collective Affidavit in opposition. 43. The 1st and 4th Respondents in Submission. 44. 5th, 6th, 8th and 10th Respondents plus 1st, 4th, 27th 30th, 44th and 45th Interested Parties. 45. 14th Respondent only entered appearance. 46. 21st and 22nd Respondents. **The 1st to the 13th Respondents Case** 1. The 1st to the 13th Respondents collectively opposed the Petition in the Sworn Affidavit dated 6th June 2024 by **Justus Otiso**, the Director, Legal Services/Corporation Secretary of the 1st & 2nd Respondent. 2. That, the process of recruiting the 4th Respondent was transparent and done in accordance with the Constitution of Kenya 2010, the State Corporations Act, Mwongozo Code of Governance for State Corporations, government circulars issued from time to time and Moi Teaching and Referral Hospital's constitutive documents, instruments and policies. 3. That, the advertisement for the position of Chief Executive Officer MTRH was published on two newspapers of nationwide circulation including My Gov. newspaper on 12th December 2023. The advertisement was also placed on the website of the hospital and remained on the website for the entire duration of the advertisement. 4. That, the said advertisement on 12th December 2023 gave all Kenyans from all walks of life and professions regardless of the ethnicity, physical ability or any other consideration, an opportunity to apply for this position. The advertisement did not give any specifications or preference of tribe, ethnicity, gender, race, physical ability or other characteristics of the applicants. 5. That, the applications were to be sent via email addressed to the Chairperson of the Board of the Hospital. The closing date for applications was on 16th January 2024 at 5:00 PM. 6. That, the Hospital received a total of 49 applications from Kenyans from all walks of life regardless of their gender, abilities and ethnicity. It is worthy to note that almost HALF of the applicants were from the Kalenjin ethnic group; out of a total of 49 applicants 23 were from that ethnic group. 7. That, the Hospital had no control over the number and the nature of the applications it received. The Hospital is situated in a region of the country where majority of the Residents are from the Kalenjin tribe, It should therefore not be surprising that 23 out of the 49 applicants were from the Kalenjin tribe. 8. That, the allegations at paragraph 47 of the Petition that the Hospital's senior management consists of 65% of members from one tribe/ethnic background or that the board previously recruited people with fake degrees is not substantiated nor particularized. 9. That, during its meeting of 26th January 2024, the Board opened the applications which had been received on email. Thereafter the Board resolved that the People's Management Committee of the Board should prepare a long list of applicants for the Board's consideration. 10. That the People's Management Committee held it's meeting on 1st and 2nd February 2024 for that exercise and drew up the long list of 49 applicants in accordance with the requirements of the indent. The People's Management Committee thereafter made their report and forwarded the same to the full board for discussion. 11. That the full Board had a meeting on 14th February 2024 to shortlist the candidates that met the minimum requirements and came up with a list of 8 candidates who met the qualifications of the advertisements as well as Legal Notice No. 40 of 2021. In that meeting the Board resolved to invite the 8 candidates for interview at a venue away from the hospital in order to give all candidates a neutral and conducive environment given that a substantial number of the applicants were employees of the hospital. 12. That, both the long list and the short list of the candidates who had applied for the position of CEO were published in the Hospital's website where they were available for public scrutiny. 13. That the Hospital invited two officials from the Ministry of Health to provide support to the recruitment exercise on the day of interview. The interviews were held on 4th March 2024 at Boma Inn Hotel in Eldoret. On that date, the board interviewed 8 candidates and upon deliberation came up with the names of those with the highest score. The board there after forwarded to the Cabinet Secretary for Health its report containing the names of those with the highest scores. This is in accordance with the requirement of section 3 (1) of Legal Notice No. 40 of 2021 which provides that the Board shall appoint a CEO with the approval of the Cabinet Secretary. 14. That, the 4th Respondent met the requirements of Legal Notice No. 40 of 2021 which requires that: A person shall be qualified for appointment as the Chief Executive Officer if that person- (a) is a registered medical practitioner who holds a Master's degree in a health-related field; (b) has had a distinguished career in a senior management position in either the private or public sector for at least ten years; and (c) satisfies the requirements of Chapter Six of the Constitution. 1. That the documents that are required to be submitted by candidates under chapter six of the constitution have since been required to be made after a candidate has been successfully chosen for the position for which they applied for. 2. That, it would be a breach of the Data Protection Act for the 1st to the 13th Respondents to reveal the details of the candidates who applied for or were shortlisted to the public without the prior written consent of those candidates and without any lawful basis. 3. That, the petitioners have not clearly pinpointed the provisions of the constitution that are alleged to have been breached and neither have they specifically proven provisions have been breached. Rather the petitioner has put forth blanket allegations hoping that they will stick. 4. That the recruitment and selection of the CEO was carried out in a lawful, fair and transparent manner. The instruments of the Hospital which include the State Corporations Act, Legal Notice No. 78 of 1998 and the Human Resource Policy & Procedures Manual 2018 do not provide for public participation in the process of appointment of the CEO. There is no provision in the constitutive documents of the Hospital to publish the criteria for shortlisting for public participation unlike other bodies. 5. Similarly that, the Constitution does not provide for public participation in recruitment exercise of state agencies such as MTRH. The Petitioner has not specified the alleged violations of the Hospital's Human Resource Policy & Procedures Manual 2018. The allegation that the recruitment process lacked transparency therefore lacks any basis. 6. That the MTRH State Corporation's Statutory Instrument is Legal Notice No. 78 of 1998 that provides; Unless done by a specific Act of Parliament, State Corporations in Kenya, including the Hospital, are created under the Statutory Corporations Act Cap 446 Laws of Kenya. Section 3 of the State Corporations Act Cap 446 provides that: Establishment of state corporations by the President (1) The President may, by order, establish a state corporation as a body corporate to perform the functions specified in that order. (2) A state corporation established under this section shall- (a) have perpetual succession; (b) in its corporate name be capable of suing and being sued; (c) subject to this Act, be capable of holding and alienating movable and immovable property. 1. That, the Act has elaborate processes for appointment and composition of Boards of State Corporations including the office of the Chief Executive Officer. Part III of the State Corporations Act provides for the Establishment and powers of State Corporations. Section 5 (3) provides that "A state corporation may engage and employ such number of staff, including the chief executive on such terms and conditions of service as the Cabinet Secretary may, in consultation with the Committee, approve." which it was established. 2. That, the Moi Teaching and Referral Hospital was established under Legal Notice No. 78 of 1998 which is a Presidential Order made pursuant to section 3(1) of the State Corporations Act. The Hospital had been in existence since pre-colonial times and was only given its current status and name by legal notice number 78 of 1998 by the then President of the Republic of Kenya Daniel Toroitich Arap Moi. The legal notice number 78 of 1998 only served to put in place the board of management of the hospital and the composition of that Board of management and that was purely at the pleasure of the President of the Republic of Kenya and in accordance with the code of governance that was in place at that time. 3. That, the said legal notice number 78 of 1998 was amended by legal notice number 56 of 2002 which changed the composition of the board and such composition and amendment was made also pursuant to section 3(1) of the State Corporations Act. The legal notice number 78 of 1998 was farther amended by legal notice number 40 of 2021 whose main aim was to change the composition of the board of directors and to provide for the appointment of the Chief Executive Officer of the Hospital and the Corporation Secretary in line with the Mwongozo Code of Governance. 4. That, the allegation of the Board lacking the requisite power to appoint the CEO due to alleged lapse of the statutory Instrument is a misguided interpretation of the provisions of the State Corporations Act and the Statutory Instruments Act. The power of the Board to appoint the CEO is derived not only from the Legal Notice No. 78 of 1998 but also from the above-mentioned provisions of the State Corporations Act which have not been repealed by section 21 of the Statutory Instruments Act or any other written law. 5. That, in a similar vein, State Corporations are wound up under the said State Corporations Act CAP 446. Section 27 of the State Corporations Act CAP 446 provides as follows: 27. Functions of the Committee (State Corporations Advisory Committee) (1) The Committee shall, in consultation with the Attorney General and the National Treasury, advise the President on the establishment, reorganization or dissolution of state corporations. 1. That, the Petitioner has not demonstrated that any of the above steps have been taken in order to wind up the Hospital or dissolve the Board. The Hospital has not been wound up and it is not one of those earmarked for winding up. The Hospital and the Board as it stands is operating within the confines of the law. 2. That the amendment order, Legal Notice No. 40 of 2021 introduced changes particularly relating to the composition of the Board, the office of the CEO and the Corporation Secretary. The purpose and content of the MTRH Board Order (Legal Notice No 78 of 1988) is essentially to establish the Hospital as a state Corporation and to provide for its governing body. These provisions supplement the provisions of the State Corporations Act. The amendments made in 2021 were so substantial that they had the effect of re-enacting the entire instrument and therefore saving it from the lapse (If any) of the ten years under section 21 of the Statutory Instruments Act. 3. That, by purporting that the Legal Notice No. 78 of 1998 lacks the force of law, the Petitioner has invited the Court to adopt an interpretation that would have absurd results in that the Hospital would be considered to be operating outside the law. Such an interpretation does not serve the public interest. MTRH is a major referral hospital for patients in the East African region too. MTRH is not only a hospital but also a research and learning institution. In fact, one of the board members is the Principal of the College of Health Sciences, Moi University. 4. That the Petitioners cannot possibly purport to be human rights defenders while at the same time they are advocating for the dissolution of a national referral hospital which millions of Kenyans depend upon in their quest for emergency medical treatment as guaranteed under Article 43 of the Constitution. An interpretation that leads to the nullification of the establishing instrument would have a ripple effect on the students, patients, researchers, employees, all Kenyans and people in the entire region who depend on it in one way or another. 5. That the CEO is appointed by the board not by the president and the Impugned process of the appointment of the CEO is pursuant to the Constitution of Kenya, State Corporations Act, legal notice number 40 of 2021 as well as the Mwongozo Code of Governance for State Corporations 2015. Section 3 (1) of Legal Notice No. 40 of 2021 provides that the CEO shall be appointed by the Board on such terms and conditions of service as the Cabinet Secretary may, in consultation with the Committee, approve. It is therefore inaccurate for the Petitioners to allege that the appointment of the CEO of the hospital is made by the President but rather it is made as it was by the Board in consultation with the Cabinet Secretary for the Ministry of Health, who in any event represents the President. 6. That, there are several government circulars which exist to further clarify or supplement the existing law which circulars come from either the parent ministry, the Public Service Commission, the Head of Public Service or the Statutory Corporations and Advisory Committee. The Circular no. OP/CAB,9/1A dated 25th November 2022 gave all Cabinet Secretaries an advisory that after the appointment of a CEO of a State Corporation and before confirmation of the same concurrence has to be sought from the Head of Public Service. 7. That the Head of Public Service sits in the office of the president and therefore gives his concurrence on behalf of the president that provides an added level of checks and balances which ensure that candidates are suitably vetted and appointments are aligned with the constitutional tenets on diversity. 8. That, the Petitioner's averred that the requirement for concurrence by the Head of Public Service is contrary to the provisions of the Constitution or the Public Service Commission Act. However, the Petitioner did not identify the particular provisions of the Constitution of the Public Service Commission Act alleged to have been violated or how the alleged violation arose. The circular and requirement for concurrence is therefore binding and has the full force of the law. 9. That, the exercise by the Public Service Commission to authenticate academic certificates for all its employees in the public service has no relevance or bearing to the current petition and was being undertaken in all public institutions, including the Ethics & Anti-Corruption Commission, prior to the exercise of the recruitment of the CEO which is the subject of this Petition. 10. That in view of the foregoing, the Petition dated 20th May 2024 lack any basis whatsoever. The Petition is frivolous, vexatious an abuse of court process and ought to be struck out with costs to the Respondents. **The 6th, 8th, and 10th Respondents, and the 1st, 4th, 27th, 30th, 44th and 45th Interested parties Case** 1. The, 6th, 8th, and 10th Respondents, and the 1st, 4th, 27th,30th, 44th and 45th interested parties on the 3rd June 2024, opposed the Petitioners’ petition dated 20th May 2024, on the following grounds; 2. **That court lacks subject matter jurisdiction as the dispute involves the recruitment and selection of the 1st Respondent’s Chief Executive Officer, which is an employment and labour relations dispute that ought to be filed at the Employment and Labour Relations Court.** 3. **That even if the court has jurisdiction (and it does not), it would lack territorial jurisdiction within the meaning of Rule 8 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 as the matters in dispute in the petition occurred at Eldoret where the 1st Respondent is based and the alleged violations are said to have occurred** 4. **That the 1st Petitioner has not demonstrated his authority to bring the petition on behalf of the 2nd to 6th Petitioners herein.** 5. **That the petition is incurably defective for misjoinder of parties and causes of action.** 6. **That the petition is upon which it is anchored are full of unsubstantiated and unparticularized as well as irrelevant allegations which have made it difficult for the opposing parties to properly respond to the allegations.** 7. **That the impugned actions complained of regarding the recruitment of the 1st Respondent’s CEO have already taken place and are thus overtaken by events.** 8. **That the 5th, 6th 8th and 10th Respondents have been improperly sued in their individual capacities as Board members despite the petition touching on decisions of the 1st Respondent’s Board made in its official capacity and further despite the Board being named separately as the 2nd Respondent in this petition.** 9. **The 1st, 4th, 27th, 30th, 44th, and 45th interested parties were improperly joined as interested parties without their consent or leave of the court, contrary to the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 and the Supreme Court precedent in Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others [2014] eKLR.** 10. **The Petitioners have not met the test or the threshold for the grant of the prayers sought in the application and the petition.** 11. **That the Petition and application dated 20th May 2024 are frivolous, vexatious and an abuse of court process**. 12. On the **21st May 2024** this court ex-parte directed and ordered 1. That, this Application and Petition is hereby certified extremely urgent to be heard on priority basis and service of the same is dispensed with in the first instance. 2. That, a Conservatory Order is hereby issued, compelling the Respondents, Suspending the Press Release, Gazette Notice or any Other Authority or document dated 17th May 2024 or any other date purporting to appoint Dr. Phillip Kiptanui Kirwa the 4th Respondent, As the 1st Respondent’s CEO, pending the hearing and determination of this Application. 3. That, a Conservatory Order is hereby issued Suspending the Press release, gazette notice and/or any other document or authority appointing of the 20th, 22nd and 24th Respondents as Chief Executive Officer (CEO) and/or Managing directors of the 21st, 23rd and 25th state corporations/entities respectively. 4. That, Temporary injunction is hereby issued, issued prohibiting the Respondents and any other person either by themselves, their agents and/or any other person(s) whatsoever, from acting and/or giving effect to the press release or/and gazette notice and/or any document notifying of the appointment of Dr. Philip Kiptanui Kirwa, the 4th Respondent herein or any other person herein as the hospital CEO of the 1st Respondent pending the hearing and determination of this Application. 5. That, A conservatory is hereby issued Restraining Dr. Philip Kiptanui Kirwa, the 4th Respondent or any other person appointed pursuant the impugned notice from performing or/and continuing to perform/function as 1st Respondent CEO whatsoever, pending determination of this application inter-parties. 6. That, this Application be served on the Respondents and All Interested Parties within (Five) 5 days of today. Not later that close of business on Monday 29th May 2024 7. That, the Respondents files and serves its Response upon the Petitioners and All the Interested Parties within Seven (7) days from the date of service. (Not later that close of business on Thursday 6th June 2024) and 8. That, Inter-parte Mention shall be on the 11th June 2024. **The 15th, 23rd and 24th Respondents Case** 1. In response to the Petition, the Hon. Attorney General, who appeared on behalf of the 15th, 23rd and 24th Respondents, filed a Notice of Preliminary Objection dated 6th June, 2024 essentially contesting the jurisdiction of the court to hear the petition and which objection was disposed-off and the issue is now settled. **The 21st Respondents Case** 1. The 21st Respondent opposed the petition vide the Sworn Affidavit dated 4th August 2025 by **Michael K. Kimotho**, Director Finance who was at all material times charged by the 21st Respondent’s Board with the administrative coordination of the recruitment processes of the CEO for Athi Water Works Development Agency. 2. It was the 21st Respondent’s case that it advertised the vacancy, in MyGov Newspaper printed by the Star Newspaper, and invited Applicants for the said position with Applications by candidates being sent to the 21st Respondent email address by 5.00PM on the 8th April 2024. 3. That, the said advertisement gave all qualified personnel regardless of their ethnicity, gender, race, physical ability or any other consideration, the opportunity to apply for the position advertised. 4. That, the 21st Respondent’s Board of director’s reviewed the applications received, shortlisted and interviewed qualified potential candidates for the position of its Chief Executive Officer. 5. That, out of the candidates who were interviewed by the 21st Respondent’s Board of Directors, three names of most suitable candidates were submitted in order of merit for the appointment of one as the Chief Executive Officer of the 21st Respondent. 6. That, in a Press Release of 17th May 2024 titled “Notification of Government Action”, the Government spokesperson communicated the appointment of the 20th Respondent as the Chief Executive Officer of the 21st Respondent, the 4th Respondent as the Chief Executive Officer of the 1st Respondent, 22nd Respondent as Managing Director of the 23rd Respondent and 24th Respondent as the Managing Director of the 25th Respondent. 7. That, consequently, the 20th Respondent was appointed as the Chief Executive Officer of the 21st Respondent and the 20th Respondent has held the said position and performed the duties of the Chief Executive Officer since the date of appointment. 8. That, subsequently, the Petition herein was filed together with an Application under certificate of urgency challenging the process of appointment of the 4th, 20th, 22nd and 24th Respondents as Managing Directors and Directors of the State Corporations. 9. The 21st Respondent Maintains that the Petitioners lacks locus standi to file the Petition dated 20th May 2024 before this Court since there is no employer-employee relationship between the Petitioner and the 21st Respondent and/or any other Respondent (s). 1. That, in response to paragraphs 66 to 71 of the Petition, the 21st Respondents states that; 2. The 21st Respondent is a State Corporation established under the Legal Notice 28 of 2019 and the Appointment of the 21st Respondent’s Chief Executive officer is governed by the Water Act as read together with the Constitution of Kenya, 2010, the State Corporation Act and the Mwongozo Code of Governance. 3. The 20th Respondent was appointed as the Chief Executive Officer of the 21st Respondent in accordance with the laid down procedure and the requirement of the Water Act, Constitution of Kenya 2010, State Corporation Act and Mwongozo Code of State Corporations and prevailing government circulars. 4. The Press Release of 17th May 2024 titled “Notification of Government Action” only confirmed the appointment that had already been made as recommended by the 21st Respondent’s Board of Directors in line with the prevailing circulars. 5. That, in response to paragraphs 72 to 89 of the Petition, the 21st Respondent asserts that recruitment of its Chief Execute Officer was done procedurally and within the shortest time possible using minimum public resources which is in accordance with the principles of public finance under Articles 10 and 201 of the Constitution of Kenya. 1. That, in response to paragraphs 90 to 99 of the Petition, the 21st Respondent states that the actions of recruitment of its Chief Executive Officer was legal, regular, reasonable, rational and did not in any way discriminate any person either on the basis of gender, ethnicity, living with disability or any other basis. 2. That, in response to paragraphs 100 and 101 of the Petition, the 21st Respondent states that legitimate expectation is created within and in accordance with the law. 3. The process of recruitment of the 20th Respondent was done within and in accordance with the law and the Petitioners’ legitimate expectations was therefore met. 4. That, in response to paragraph 119 of the Petition, the 21st Respondent contends that; 5. Applications to the position of the 21st Respondent’s Chief Executive Officer were open to all qualified members of the public and the process of shortlisting and interviewing of the Candidates for the said position was done in an open, fair, accountable and transparent manner. 6. The advertisement, shortlisting and interviews for the position of the 21st Respondent’s Chief Executive Officer was done within the shortest time possible and using minimal corporation resources which is in line with the principles of public finance provided under articles 10 and 201 of the Constitution of Kenya. 7. The Press Release of 17th May 2024 only played an informative role of the decision that had been made by the 21st Respondent’s Board of Directors and cannot be used as a basis to file a Petition against the 21st Respondents. 1. That, the Petitioners have not adduced any evidence or placed before this Honorable Tribunal any material facts specifically demonstrating wrong doing, illegality, or irregularity on the part of the 21st Respondent. The allegation made against the said Respondent are bare, unsubstantiated and devoid of any evidentiary backing thereby, rendering the Petition fatally defective as against the 21st Respondent. 2. That, the Petition May 2024 is baseless, misconceived and devoid of merits and should be dismissed by this Court. **The 22nd Respondents Case** 1. The 22nd Respondent contends that on the 13th February, 2024, the 23rd Respondent opened application for the position of its Managing Director as advertised in the 23rd Respondent’s Website (https://www.kbc.co.ke) and MyGov Weekly Review Magazine dated 13th February, 2024. (Annexed and Marked AKN 1 (a & b) are excerpts of the Advertisement. Not provided. 2. That she upon seeing the said advert she applied for the said position because she met the Competencies and Experience required. 3. That on 19th March 2024 she read her name on MyGov Weekly Review Magazine as one of the Eight (8) persons shortlisted for the job and was invited to attend the Interview on 26th March 2024. (Annexed and Marked AKN 3 is the shortlist not availed. 4. That, on 17th May, 2024 she was appointed as the 23rd Respondent’s Managing Director by the Cabinet Secretary in charge of Information, Communication and The Digital Economy in consultation with the 23rd Respondent's Board after her successful interview. (Annexed and Marked AKN 4 is the copy of my Appointment). Not annexed. 5. That, contrary to what the Petitioners are alleging she was not appointed by the Head of Public Service or The Government Spokesman as alleged but rather was appointed by the Cabinet Secretary in charge of Information, Communication and The Digital Economy in compliance to the provisions of the Law. 6. That the Petitioners have not challenged the Constitutionality or legality of her appointment by the Cabinet Secretary in consultation with the Respondent's Board. 7. That her appointment complies to Section 5 of Kenya Broadcasting Act, Cap 221 Laws of Kenya as well as Section 6 of State Corporations Act, Cap 446 Laws of Kenya. 8. That the Petition by Petitioners is fatally defective because they are sworn by the 1st Petitioner without express authority of the other Petitioners and should be dismissed with costs. 9. That the Petitioners have failed to demonstrate any grave violations of the Constitution and law(s) by me and in essence they are on fishing expedition. **1st and 4th Respondents submissions** 1. The 1st and 4th Respondents in its Submissions dated 17th February 2026 contend that, on or about 12th December 2023, the 1st Respondent/ Moi Teaching and Referral Hospital (MTRH), lawfully advertised the position of Chief Executive Officer (CEO) following the exit of the former Chief Executive Officer, Dr. Wilson K. Aruasa, the 18th Respondent herein. 2. Upon closure of applications on 16th January 2024, the recruitment process proceeded strictly in accordance with the applicable constitutional, statutory. institutional, and administrative frameworks governing State Corporations. The process culminated in the shortlisting and interviewing of qualified candidates. 3. Similarly, the 21st, 23rd and 25th Respondents undertook competitive recruitment processes for their respective positions of Managing Director/Chief Executive Officer and, upon conclusion of the interviews, made recommendations for appointment of the most suitable candidates in accordance with the governing legal framework. 4. That following the competitive process, the 4th Respondent, Dr. Philip Kiptanui Kirwa. having met all the requisite qualifications and having emerged successful, was lawfully appointed as the Chief Executive Officer/Managing Director of the t Respondent/Moi Teaching and Referral Hospital on 17th May 2024. 5. Vide a press release dated 17th May 2024, the Head of Public Service publicly communicated the appointment of the 4th, 20th, 22nd and 24th Respondents as the Chief Executive Officers/Managing Directors of the 1st, 21st, 23rd and 25th Respondents respectively. 6. Aggrieved by the said press release, the 1st to 7th Petitioners filed the present Petition and Notice of Motion dated 20th May 2024, challenging the appointment process. 7. Following the filing of the Petition, the Respondents filed Applications and a Notice of Preliminary Objection challenging the jurisdiction of this Court to hear and determine the Petition. 8. In a Ruling delivered on 20th June 2024, this Court pronounced itself on the issue and upheld its jurisdiction to hear and determine the Petition. 9. Dissatisfied with the said Ruling, appeals being COACA No. 107 of 2024 and COACA E116 of 2024 were preferred before the Court of Appeal at Nakuru. The appeals were consolidated, and in a Ruling delivered on 23rd May 2025, the Court of Appeal upheld the jurisdiction of the High Court at Nakuru to hear the Petition dated 20th May 2024. 10. Subsequently, the 1st Respondent/Moi Teaching and Referral Hospital and 4th Respondents/Dr. Philip Kiptanui Kirwa filed Supreme Court Appeal No. 33 of 2025. while the 2nd Respondent/ Moi Teaching and Referral Hospital Board and 3rd Respondents/Sitoyo Lopokoiyot filed Supreme Court Appeal No. 30 of 2025, The said appeals were consolidated and are presently pending determination before the Supreme Court. 11. Notwithstanding the pendency of the appeals before the Supreme Court, this Court proceeded to issue directions for compliance and disposal of the Petition. 12. Against the foregoing background of facts and proceedings, the 1st and 4th Respondents respectfully tender these submissions opposing the Petition dated 20th May 2024 with the following Four (4) issues for consideration; * + 1. ***Whether there existed an employer-employee relationship/employment contract at the time of filing the petition on 20th or 21st May 2024.*** 2. ***Whether this Court has the requisite jurisdiction to hear and determine the Petition. or whether the dispute falls within the exclusive jurisdiction of the Employment and Labour Relations Court, and further, whether this Court has the necessary territorial (geographical) jurisdiction.*** 3. ***Whether the 1st Respondent/Moi Teaching and Referral Hospital has a valid statutory anchoring to exist. Whether the statutory instruments creating the 1 Respondent/ Moi teaching and Referral Hospital have expired.*** 4. ***Whether the recruitment and appointment process conducted by the 1st Respondent/Moi Teaching and Referral Hospital complied with Articles 10, 27, 73. and 232 of the Constitution.*** 13. With regards to the 1st issue the 1st Respondent. Moi Teaching and Referral Hospital, and the 4th Respondent. Dr. Philip Kiptanui Kirwa, submit that an employer-employee relationship existed at the time the Petition was filed on 20th or 21st May 2024. The employment relationship had already crystallized on 17th May 2024, before these proceedings were instituted. 14. The 1st Respondent/Moi Teaching and Referral Hospital and 4th Respondent/ Dr. Philip Kiptanui Kirwa submits, that an employer-employee relationship/employment contract exists once there is: (i) offer, (ii) acceptance. (iii) Consideration (remuneration), and (iv) Control. 15. The preposition was affirmed in the case law of **Everest Aviation Ltd v Kenya Revenue Authority [2013] eKLR** and **Ready Mixed Concrete (East Africa) Ltd v Minister for Pensions [1965] 1 Q8 497**, which courts have consistently applied. 16. The Petitioners filed the Petition and the accompanying Application dated 20th May 2024 seeking, among other orders, conservatory orders to stay the affirmation and assumption of office of the 4th Respondent as Chief Executive Officer of the 1st Respondent. Conservatory orders were initially granted. 17. The Respondents subsequently filed Applications and a Notice of Preliminary Objection challenging the jurisdiction of this Court to hear and determine the Petition. 18. The High Court dismissed the Preliminary Objection on 20th June 2024. The Respondents then filed Appeals being COACA No. 107 of 2024 and COACA No. E116 of 2024 before the Court of Appeal at Nakuru. In the meantime, the Court of Appeal discharged the conservatory orders in its Ruling delivered on 25th October 2024. 19. An appeal against that decision was later dismissed by the Court of Appeal on 23rd May 2025. 20. Thereafter, the 1st and 4th Respondents filed a Petition to appeal Supreme Court Appeal No. 33 of 2025, while the 2nd Respondent (the Board of Moi Teaching and Referral Hospital) and the 3 Respondent filed Supreme Court Appeal No. 30 of 2025. The appeals were consolidated and are currently pending before the Supreme Court. 21. The 1st and 4th Respondents submit that as at 20th or 21st May 2024 when the Petition was filed and ex-parte orders were issued an employer employee relationship and a valid contract of employment had already come into existence, effective 17th May 2024. 22. The fact that the employment relationship took effect on 17th May 2024, before the filing of the Petition and before the issuance of court orders on 21st May 2024, is supported by the documents placed before the Court and is not disputed. 23. That, **Section 2**, Employment Act. (CAP 226) defines as follows: **a) "Employee" means a person employed for wages or a salary and includes an apprentice and indentured learner: and** **b) "Employer" means any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any Individual and Includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company."** 1. That, **Section 3(6),** Employment Act, (CAP 226) provides as follows:- **"Subject to the provisions of this Act, the terms and conditions of employment set out in this Act shall constitute minimum terms and conditions of employment of an employee and any agreement to relinquish, vary or amend the terms herein set shall be null and void."** 1. **Section 9(1)** of the Employment Act, (CAP 226) provides for general provision of contract of service as follows:- **"(1) A contract of service:-** **(a) For a period or a number of working days which amount in the aggregate to the equivalent, of three months or more; or** **(b) Which provides for the performance of any specified work which could not reasonably be expected to be completed within a period or a number of working days amounting in the aggregate to the equivalent of three months, shall be in writing."** 1. **Section 10 (7)** of the Employment Act (CAP 226) provides as follows:- ***"If in any legal proceedings an employer falls to produce a written contract or the written particulars, prescribed in subsection (1) the burden of proving or disproving an alleged term of employment stipulated in the contract shall be on the employer."*** 1. In the case law of the Court of Appeal in **Judicial Service Commission v Gladys Boss Shollei [2014] eKLR** held that:- **"Once a person has been appointed and has assumed office, the relationship crystallises into an employer-employee relationship, regardless of pending formalities."** 1. Similarly, in the case law of **Kutu v Anaali Kenya Ltd [2023] KEELRC 2061**, the court held that:- ***"...An employment relationship has serious implications on the parties. The court must therefore be fully satisfied that it actually exists. A claimant claiming employment rights must prove the existence of an employment relationship."*** 1. Therefore, by the time the Petition was filed on 20th or 21st May 2024, an employer-employee relationship was already in existence. Under **Article 162(2)(a)** of the Constitution of Kenya, 2010, and Section 12 of the Employment and Labour Relations Court Act, disputes arising out of employment fall within the exclusive jurisdiction of the Employment and Labour Relations Court. 2. Accordingly, if by 17th May 2024 the 4th Respondent had been appointed and had assumed office, then an employment relationship existed before the Petition was filed. In those circumstances, the High Court lacked jurisdiction to hear the matter. 3. With regards to the 2nd issue as to whether this court has the requisite jurisdiction to hear and determine the petition, or whether the dispute falls within the exclusive jurisdiction of the employment and labour relations court, and further, whether this court has the necessary territorial (geographical) jurisdiction, the 1st and the 4th Respondent, submit that jurisdiction is fundamental and must be determined at the earliest opportunity. A court acting without jurisdiction acts in vain. As was authoritatively stated in **Owners of the Motor Vessel Lillian 5 v Caltex Oil (Kenya) Ltd**. jurisdiction is everything: without it, a court must immediately down its tools. 4. The Supreme Court in **Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others** held that a court's jurisdiction flows from the Constitution or legislation, or both. A court cannot arrogate to itself jurisdiction beyond what is conferred by law. Where the Constitution exhaustively provides for jurisdiction, the court must operate strictly within those limits. The Court held that: - ***"A Court's jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction*** ***exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a court of law has jurisdiction to entertain a matter before it is not one of mere procedural technicality; it goes to the very heart of the matter, for without Jurisdiction, the Court cannot entertain any proceedings... Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its Jurisdiction through judicial craft or Innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law."*** 1. The 1st and 4th Respondents submit that, **Article 162(2)(a)** of the Constitution of Kenya, 2010 establishes the Employment and Labour Relations Court (ELRC), and Section 12 of the Employment and Labour Relations Court Act grants that Court exclusive jurisdiction over disputes relating to employment and labour relations. 2. **Article 162** of the Constitution of Kenya 2010 provides: - **Article 162 (2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to:-** **(a) Employment and labour relations;** 1. Further **Article 165(5)(b**) of the Constitution expressly removes the jurisdiction of the High Court in matters reserved for courts established under Article 162(2). 2. **Article 165(5) (b),** Constitution of Kenya, 2010, in verbatim provides as follows: -The High Court shall not have jurisdiction in respect of matters; (b) falling within the jurisdiction of the courts contemplated in Article 162 (2).". This position is affirmed by the Supreme Court **Macharia & Another v** Kenya **Commercial Bank Ltd & 2 Others (2012) KESC 8 (KLR)** and stated as follows:- **"A court's jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law could only exercise jurisdiction as conferred by the Constitution orother written law. It cannot arrogate to itself jurisdiction exceeding that which was conferred upon it by law,"** 1. That the 1st and 4th Respondents submit that, if this Court were to entertain the Petition and grant the orders sought, the practical effect would be to terminate or invalidate an existing employment contract between the 1st Respondent and the 4th Respondent. Such relief falls squarely within the jurisdiction of the ELRC. The Petitioners seek, among other orders, certiorari to quash the appointment of the 4th Respondent as Chief Executive Officer, prohibition to restrain him from acting in that capacity, and mandamus to compel a fresh recruitment process. These are remedies directly affecting an employment relationship, 2. The 1st and 4th Respondents further submit that even in public interest litigation where the petitioner is not personally a party to the contract of service. the ELRC retains jurisdiction so long as the dispute relates to appointments, terms of service, or labour relations. 3. The 1st and 4th Respondents submits, that the 1st Petitioner/Dr. Magare B. Gikenyi had previously filed a Petition before the Employment and Labour Relations Court challenging the appointment of the Chief Executive Officer of the Pharmacy and Poisons Board, in which objections founded on Section 12 of the Employment and Labour Relations Court Act. were raised and subsequently dismissed by the Honorable Court. In the case law of **Gikenyi Benjamin v Nakhumicha, Cabinet Secretary, Ministry of Health & 15 others (Constitutional Petition E077 of 2023) [2023] KEELRC 1560 (KLR) (22 June 2023)** The Learned Judge held as follows:- ***"The Court considers that any person can file a suit or petition in the when section 12(2) of the Act states that an application, claim, or complaint may be lodged with the Court by or against an employee, an employer, a trade union, an employers organisation, a federation, the Registrar of Trade Unions, the Cabinet Secretary or any office established under any written law for such purpose. It appears to the Court that by that provisions, any person like the petitioner are entitled to move the Court as long as the issuein dispute is about formulation, interpretation, and implementation of a term and condition of service which may arise, post and during a contract of service. The Court further considers that the section appears to confer the Court jurisdiction in matters of employment, labour relations and related matters within the right of every person to move the Court as contemplated In Articles 22, 23 and 258 of the Constitution. Like in the instant case it is not simply that the matter arises and revolves around the mentioned contracts of service but as well, the petitioner is entitled to move the Court in public Interest litigation as he has done provided the dispute relates to employment or labour relations or related matters as envisaged in Article 162 (2) (a) and section 12 of the Employment and Labour Relations Court Act. The Court returns that the matter is within the Court's jurisdiction and the petitioner was entitled to move the Court within the tests set in Articles 22, 23 and 258 of the Constitution."*** 1. That, Section 12(1), of the Employment and Labour Relations Court Act, No. 20 of 2011 provides as follows:- **"(1) The Court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of this Act or any other written law which extends jurisdiction to the Court relating to employment and labour relations including:-** **(a) Disputes relating to or arising out of employment between an employer and an employee:** **(b) Disputes between an employer and a trade union:** **(c) Disputes between an employers' organisation and a trade union's organisation;** **(d) Disputes between trade unions;** **(e) Disputes between employer organisations;** **(f) Disputes between an employers' organisation and a trade union;** **(g) Disputes between a trade union and a member thereof:(h) Disputes between an employer's organisation or a federation and a member thereof;** **(h) Disputes concerning the registration and election of trade union officials and Disputes relating to the registration and enforcement of collective agreements"** 1. **Section 11** of the Civil Procedure Act (CAP 21) provides for courts which suit is to be instituted and provides as follows: - **"Every suit shall be instituted in the court of the lowest grade competent to try It, except that where there are more subordinate courts than one with Jurisdiction in the same district competent to try it, a Suit to be instituted where subject matter situate, suit may, if the party instituting the suit or his advocate certifies that he believes that a point of law is involved or that any other good and sufficient reason exists, be instituted in any one of such subordinate courts: Provided that** **If a suit is instituted in a court other than a court of the lowest grade competent to try it, the magistrate holding such court shall return the plaint for presentation in the court of the lowest grade competent to try it if in his opinion there is no point of law involved or no other good and sufficient reason for Instituting the suit in his court; and** **(1) Nothing in this section shall limit or affect the power of the High Court to direct the distribution of business where there is more than one subordinate court in the same district."** 1. In the case law of the Court of Appeal in **United States International University (USIU) v Attorney General [2012] eKLR** held that:- **"*Since the court is of the status of the High Court, it must have the jurisdiction to enforce labour rights in Article 41 and the jurisdiction to interpret the Constitution and fundamental rights and freedoms is incidental to the exercise of jurisdiction over matters within its exclusive domain... it follows that all employment and labour relations matters pending in the High Court shall now be heard by the Industrial Court which is now a court of the status of the High Court. The High Court therefore lacks jurisdiction to deal with matters of employment and labour matters whether filed in the High Court before or after the establishment of the Industrial Court."*** 1. Further, in the case law of **Daniel N. Mugendi v Kenyatta University & 3** Others **[2013] eKLR** (Court of Appeal) on the proper forum for employment-related disputes and associated constitutional issues, the Court of Appeal held:- ***"...It follows that all employment and labour relations matters pending in the High Court shall now be heard by the Industrial Court which is now a court of the status of the High Court. The High Court therefore lacks jurisdiction to deal with matters of employment and labour matters whether filed in the High Court before or after the establishment of the Industrial Court."*** 1. The Court further explained the basis for this jurisdictional demarcation: ***...By virtue of Article 162(3), Section 12 of the Industrial Court Act, 2011 has set out matters within the exclusive domain of that Court. Since the Court is of the same status of the High Court, It must have the jurisdiction to interpret the Constitution and fundamental rights and freedoms... in any matter falling within the provisions of Section 12 of the Industrial Court Act."*** 1. The 1st and 4th Respondent submits that once an employer-employee relationship exists. even constitutional questions incidental thereto belong to the ELRC, as held in Daniel N. Mugendi v Kenyatta University & 3 Others [2013] eKLR. 2. The 1st and 4th Respondent submits that, if at the time of filing the Petition an employment relationship existed. this Court lacks jurisdiction. 3. Jurisdiction is also geographical. In the locus classicus case law of Owners of the **Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1**, the Court held:-"Jurisdiction is everything; without it, a Court has no power to make one more step, where a Court has no jurisdiction, there would be no basis for a continuation of proceedings... A court of law down[s] its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction 4. The 1st and 4th Respondents submit that, the place where the cause of action arose. and where the employer institution is domiciled and operates, determines territorial Jurisdiction. Any deviation from this principle without lawful justification renders the proceedings procedurally irregular. 5. In the premises, the dispute herein being one that directly challenges an appointment and seeks orders affecting an employment relationship falls within the exclusive Jurisdiction of the Employment and Labour Relations Court, both substantively and territorially. Consequently, this Court lacks jurisdiction to entertain the Petition. 6. With regards to the 3rd Issue as to whether the 1st Respondent has a valid statutory anchoring to exist, whether the statutory instruments creating the 1st Respondent has expired, that, section 21 of the Act contains a provision on the automatic revocation of statutory instruments. It provides as follows: **"(1) Subiect to subsection (3), a statutory instrument is by virtue of this section revoked on the day which ir ten years after the making of the statutory instrument unless** **(a) It is sooner repealed or expires and** **(b) A regulation is made exempting it from expiry.** **(2) The responsible Cabinet Secretary may in consultation with the Committee, make a regulation under this Act extending the operation of a statutory rule that would otherwise be revoked by virtue of this section for a period as is specified in the regulation not exceeding twelve months** **(3) Only one extension of the operation of a statutory rule can be made under subsection** 1. The 1st and 4th Respondents submit that, the effect of that provision was that statutory instruments were liable to lapse automatically ten years after their enactment unless specifically exempted or extended. Any such extension could not exceed twelve. months and could only be granted once. 2. It is submitted that ten years from the commencement of the Statutory Instruments Act lapsed on 24th January 2023. Consequently, regulations that had not been re-enacted were at risk of expiry. To address this, the Cabinet Secretary issued Legal Notice No. 217 of 2022, namely the Statutory Instruments (Exemption from Expiry) Regulations, which extended the validity of listed regulations for a further period of twelve months, up to 24th January 2024. This extension was intended to allow the relevant ministries and state corporations time to re-enact or regularize their statutory instruments. 3. Parliament attempted to repeal the section through the passage of the Finance Act. 2023. The High Court, however, in the case of **Okoiti & 6 Others V Cabinet Secretary for The National Treasury And Planning & 3 Others; Commissioner-General, Kenya Revenue Authority & 3 Others (Interested Parties) (Petition E181, E211, E217, E219, E221, E227, E228, E232, E234, E237 & E254 Of [2023] (Consolidated)) [2023] KEHC 25872 (KLR)** declared the attempt to repeal the section unconstitutional for having been unlawfully included in a money bill. This was upheld by the Court of Appeal which declared the entire Finance Act of 2023 unconstitutional. 4. However, in a judgment delivered on 29th October 2024 the Supreme Court set-aside the Court of Appeal's finding declaring the entire Finance Act, 2023 unconstitutional. A number of provisions were still held to be unconstitutional for various reasons but Clause 89, which deletes **Section 21** of the SIA was not among them, Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others; Bhatia (Amicus Curiae) [2024] KESC 63 (KLR). 5. The effect of the Supreme Court decision is that Section 21 of the Statutory Instruments Act was validly repealed by the Finance Act, 2023. That determination was made in October 2024 while the present Petition was still pending. Consequently, any argument by the Petitioners that the Board of the 1st Respondent lacked a valid statutory foundation or enabling legal framework to recruit a Chief Executive Officer has been overtaken by events. The statutory basis for the continued existence and operation of the 1st Respondent remains intact. 6. With regards to the 4th issue as to whether the recruitment process complied with Articles 10, 27, 73, and 232 of the Constitution, the 1st and 4th Respondent submit that the Constitution requires public appointments to be conducted with transparency, competitiveness, merit, and equity. 7. The Petitioner alleges that the recruitment process was flawed. specifically, it is claimed that: 8. Some shortlisted candidates did not meet the advertised qualifications: 9. The process failed to meet diversity and inclusivity requirements for persons with different abilities (PWDs), women, minority groups, and ethnic balance: 10. Dr. Kirwa improperly participated in a process that led to his own appointment: 11. Sixty-five per cent (65%) of senior management positions are allegedly held by persons from the Kalenjin community: and 12. Candidates failed to submit documents required under Chapter Six of the Constitution. 13. The 1st and 4th Respondents submit that these allegations are unsupported by evidence and are misleading. 14. The 1st and 4th Respondents maintain that. at the time of recruitment, the 4th Respondent/Dr. Philip Kiptanui Kirwa was the acting CEO. When the position was formally advertised, the 4th Respondent/Dr. Philip Kiptanui Kirwa applied alongside other internal and external candidates. 15. The 4th Respondent/Dr. Philip Kiptanui Kirwa did not participate in the recruitment process or decision-making relating to the appointment of the CEO/MD for the 1st Respondent/Mol Teaching and Referral Hospital. 16. That, under the Mwongozo Code of Governance for State Corporations, the CEO and Board members hold distinct positions. Although the CEO sits on the Board, he or she has no voting rights. Therefore, there was no conflict of interest in this case clause 1.1(4) the CEO shall be a board member with no voting rights, 17. That **Article 10** of the Constitution of Kenya, 2010, provides as follows:- **"(1) The national values and principles of governance In this Article bind all State organs, State officers, public officers and all persons whenever any of them:-** **(a) Applies or Interprets this Constitution;** **(b) Enacts, applies or interprets any law; or** **(c) Makes or Implements public policy decisions,** **(2) The national values and principles of governance include:-** **(a) Patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people;** **(b) Human dignity, equity, social justice, Inclusiveness, equality, human rights, non-discrimination and protection of the marginalised;** **(c) Good governance, Integrity, transparency and accountability; and** **(d) Sustainable development."** 1. That **Article 27** of the Constitution of Kenya, 2010, provides for equality and freedom from discrimination, as follows:- **"(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.** **(2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms,** **(3) Women and men have the right to equal treatment, Including the right to equal opportunities in political, economic, cultural and social spheres,** **(4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth,** **(5) A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).** **(6) To give full effect to the realization of the rights guaranteed under this Article, the State shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination."** 1. That the 1st and 4th Respondent submits that the position was advertised in two newspapers of nationwide circulation with a period of over one month for applicants to submit the relevant credentials. The advertisements contained a declaration that the 1st Respondent an equal opportunity employer promoting diversity, equality, inclusivity and belonging. 2. The 1st and 4th Respondent submits that 1st and the 2nd Respondents had no control over the applications submitted. 3. The 1st and 4th Respondent submits that the People's Management Committee of the Board evaluated all applications in a fair manner having regard to the law and internal policies and shortlisted 8 candidates. The list of applicants and shortlisted candidates was published on the 1st Respondent's website in compliance with the principles of transparency and accountability. 4. That **Article 232(1)** of the Constitution of Kenya, 2010, provides as follows: - **"1. The values and principles of public service Include: -** **(a) High standards of professional ethics;** **(b) Efficient, effective and economic use of resources;** **(c) Responsive, prompt, effective, Impartial and equitable provision of services;** **(d) Involvement of the people in the process of policy making;** **(e) Accountability for administrative acts;** **(f) Transparency and provision to the public of timely, accurate information;** **(g) subject to paragraphs (h) and (1), fair competition and merit as the basis of appointments and promotions;** **(h) Representation of Kenya's diverse communities; and** **(i) Affording adequate and equal opportunities for appointment, training and advancement, at all levels of the public service, of;-** **(i) Men and women;** **(ii) The members of all ethnic groups; and** **(iii) Persons with disabilities."** 1. The 1st and 4th Respondents submit that the Petitioner's allegations that the recruitment process was shrouded in secrecy and opacity are unfounded. All members of the public, including the Petitioners and applicants, had the opportunity to scrutinize the shortlist and raise objections, but none were received. The Board thereafter proceeded to conduct interviews on 4th March 2024. 2. That of the forty-nine (49) applications received, twenty-three (23) were from applicants of the Kalenjin community. It was therefore foreseeable that a proportionately higher number of shortlisted candidates would originate from that community, the shortlisting having been undertaken on the basis of merit and objective criteria. 3. That, of the eight (8) shortlisted candidates, five (5) were of Kalenjin ethnicity, as is exhibited in the Replying Affidavit of **Justus Otiso** sworn on 6th June 2024. 4. The Respondents submit that this outcome is neither unusual nor unexpected, given that the Hospital, though a national referral institution serving the wider East African Region, is geographically located in an area predominantly inhabited by the Kalenjin community. 5. A substantial number of applicants were employees of the Hospital. This is consistent with the Human Resource Policy and Public Service Commission Regulations, which promote career progression within State corporations through internal recruitment. 6. There were six (6) female applicants out of the forty-nine (49) total applicants. **Article 27(8)** of the Constitution requires that not more than two-thirds of members of elective or appointive bodies shall be of the same gender. The Board was obligated to conduct a competitive recruitment process in compliance with both the establishing statute and Article 27 of the Constitution. 7. Female applicants constituted approximately twelve per cent (12%) of the applicant pool. 8. The 1st and 4th Respondents submit that the Petitioners have failed to demonstrate which specific gender considerations were disregarded. The Hospital had no control over who applied, and the recruitment exercise was conducted strictly on merit and objective criteria 9. The 1st and 4th Respondents submits that there were only six (6) women out of the forty-nine (49) applicants. Article 27(8) of the Constitution of Kenya, 2010, requires that the state shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender. The board was obligate to competitively recruit a CEO/MD having regard to all the requirements under the establishing statute and considering Article 27 of the Constitution of Kenya, 2010, 10. The 1st and 4th Respondents submit that, all factors being equal, female applicants constituted approximately twelve per cent (12%) of the total pool of candidates for the position in question. 11. The 1st and 4th Respondents submit that, the Petitioners have failed to demonstrate which specific gender considerations were allegedly disregarded in the recruitment process. They further reiterate that the 1st Respondent had no control over the composition of applicants who chose to submit their applications, and that the recruitment exercise was conducted on the basis of merit and objective criteria. 12. The 1st and 4th Respondents submits, that **Section 7** of the National Cohesion and Integration Act sets the applicable statutory threshold on ethnic diversity by providing that no public establishment shall have more than one-third of its staff drawn from the same ethnic community. This is the lawful standard against which ethnic representation in State Corporations is to be assessed. The bare and unsubstantiated allegation that sixty-five per cent (65%) of the senior management positions are held by persons from one community. namely the Kalenjin community. is therefore insufficient and misleading, as it neither reflects the composition of the entire staff establishment of the 1st Respondent nor takes into account its regional and satellite facilities. 13. The 1st and 4th Respondents submit that, in this case, the assessment concerned the selection of a single candidate from a pool of forty-nine (49) applicants, the majority of whom were male and/or from the Kalenjin community, notwithstanding that the position was openly advertised to all qualified Kenyans. The fact that the successful candidate was male, of the Kalenjin community, and not a person with a disability does not, in itself, constitute evidence of discrimination or breach of Article 27 of the Constitution of Kenya, 2010, nor does it demonstrate non-compliance with the requirements of Article 232 of the regarding fairness, merit, and inclusivity in public service recruitment. Further, the selection process adhered to the standards on ethnic diversity and representation as set out under the National Cohesion and Integration Act, which governs the measurement of ethnic balance in State Corporations. 14. In the case law of **Commission for the Implementation of the Constitution v Parliament of Kenya & Another [2013] eKLR,** the court held that:- ***"...The Constitution must be interpreted in a manner that gives meaning and purpose to the provisions. In that regard, it is important to take into account the circumstances and context in which the Constitution was adopted and the purpose It seeks to achieve."*** 1. The 1st and 4th Respondents submits, that as emphasized in Kenyan jurisprudence, where constitutional or statutory requirements apply, it is substantive compliance with the law that is of essence and determinative, mere formal conformity without meeting the underlying purpose is insufficient. This principle guides courts in assessing compliance with Articles 10, 27, 73 and 232 of the Constitution of Kenya, 2010 in recruitment and appointments. 2. That evidence shows that, the recruitment process was, openly advertised, Competitive, based on merit, subject to public scrutiny; and conducted in accordance with internal and statutory procedures. 3. The 1st and 4th Respondents submits that where advertisement, shortlisting, interviews, and Board approval occurred, constitutional compliance is presumed unless rebutted by cogent evidence. 4. That taken cumulatively, and upon a careful consideration of the Constitution, the applicable statutory framework, and binding judicial precedent, it is evident that this Court lacks the requisite jurisdiction to hear and determine the Petition herein, the dispute being one that squarely falls within the exclusive mandate of the Employment and Labour Relations Court [ELRC]. Further, the Petition is fundamentally defective, having been instituted in the face of an existing employer-employee relationship and compounded by deliberate misjoinder of parties, which has occasioned prejudice and amounts to a clear abuse of the court process. 5. The recruitment and appointment of the 4th Respondent was conducted within the confines of the law, in full compliance with the Constitution and the applicable statutory provisions, and met the threshold of lawfulness, reasonableness, and procedural fairness. 6. By contrast, the Petitioners have failed to discharge the burden and standard of proof as required under the Evidence Act, having placed before the Court conflicting. Inconsistent, and speculative evidence incapable of sustaining the serious allegations advanced. 7. In the circumstances, and in the interest of upholding the rule of law, judicial economy, and constitutional order, this Court is respectfully urged to strike-out the Petition in limine or, in the alternative, dismiss it in its entirety with costs to the Respondents. **Submissions by 5th, 6th, 8th, and 10th Respondents, and the 1st, 4th, 27th, 30th, 44th, and 45th Interested Parties** 1. In response to the Petition, the 13th, 14th, 15th, 17th, 31st, 34th, 57th, 60th, 74th and 75th Respondents filed Grounds of Opposition dated 3rd June 2024 and a replying affidavit sworn by Justus Otiso on 6th June 2024. 2. That the issues arising from the Petition can be summarized as follows: * 1. **Whether the statutory instrument establishing the MTRH Board was valid at the time of recruitment of the CEO?** 2. **Which person or office has the statutory mandate to appoint the CEO of MTRH and whether the 13th Respondent usurped the powers of the appointing body?** 3. **Whether the process leading to appointment of MTRH CEO met the constitutional and statutory requirements relating to appointment of public officers?** 4. **Whether the 4th Respondent participated in the recruitment of the CEO of MTRH?** 5. **Whether there was a need for public participation in appointment of MTRH CEO?** 6. **Whether the petition meets the threshold for a constitutional petition?** 3. With regard to the 1st issue on Validity of Legal Notice No.78 of 1998 as revised by Legal Notice No. 40 of 2021, it is submitted that, MTRH is established as a state corporation under the Moi Teaching and Referral Hospital Board Order, Legal Notice No. 78 of 1998. The Petitioner submitted that the Legal Notice No. 78 of 1998 had expired by dint of section 21 of the Statutory Instruments Act. **Section 21** of the Statutory Instruments Act provides that: ***Subject to subsection (3), a statutory instrument is by virtue of this section revoked on the day which is ten years after the making of the statutory instrument unless—*** ***(a) It is sooner repealed or expires;*** ***(b) A regulation is made exempting it from expiry*** ***The Statutory Instruments Act commenced on 24th January 2013. The statutory instruments that were in force as of the date of commencement therefore remained in force for a period of ten years unless repealed pursuant to section 21 of the Act. Seeing as ten years from the commencement of the Statutory Instruments Act lapsed on 24th January 2023, most of the Regulations that had not been re-enacted during this period were at risk of being deemed as expired. In exercise of the powers under Section 21 of the Statutory Instruments Act, the Cabinet secretary for the National Treasury and Economic Planning, vide the Legal notice No. 217 of 2022 enacted the Statutory Instruments (Exemption from Expiry) Regulations which extended the validity of the regulations listed therein for a period of 12 months up to 24th January 2024.*** 1. That **Section 21** of the Statutory Instruments Act was subsequently repealed by the Finance Act of 2023. Subsequently, the High Court, however, in the case of **Okoiti & 6 Others V Cabinet Secretary for the National Treasury and Planning & 3 Others**; **Commissioner-General, Kenya Revenue Authority & 3 Others (Interested Parties) (Petition E181, E211, E217, E219, E221, E227, E228, E232, E234, E237 & E254** **of [2023] (Consolidated) [2023] KEHC 25872 (KLR)** declared the attempt to repeal the section unconstitutional for having been unlawfully included in a money bill. This was upheld by the Court of Appeal which declared the entire Finance Act of 2023 unconstitutional. 2. That in a judgment delivered on 29th October 2024 the Supreme Court set aside the Court of Appeal’s finding declaring the entire Finance Act, 2023 unconstitutional. A number of provisions were still held to be unconstitutional for various reasons but Clause 89, which deleted Section 21 of the SIA was not among them. See **Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others**; **Bhatia (Amicus Curiae) [2024] KESC 63 (KLR)** submit that the question of validity of the statutory instruments which establish the MTRH and its Board has been overtaken by events. The MTRH Board as established by the Legal Notice No. 78 of 1998 has the power to recruit the CEO, backed by the full force of the law. 3. As to whether the 13th Respondent (Chief of Staff and Head of Public Service) usurped the powers of the appointing body? It is submitted that, the President has the authority to appoint the CEO of MTRH. That this allegation is solely based on the Press Release dated 17th May 2024 by the Chief of Staff indicating that “These appointments have been made following a successful competitive recruitment process and with the concurrence of the Chief of Staff & Head of Public Service” 4. That the Petitioner’s averment that the CEO of MTRH ought to have been appointed by the President is wrong and misguided. Paragraph 4 of the Legal Notice no. 78 of 1998 which established the MTRH Board provided that the Director of the Hospital should be appointed by the President for a term of 5 years. This provision was amended vide Legal Notice No. 40 of 2021 which provided at clause 3 that; ***“There shall be a Chief Executive Officer of the Board who shall be appointed by the Board on such terms and conditions of service as the Cabinet Secretary may, in consultation with the Committee, approve”*** 1. That, it is therefore inaccurate for the Petitioners to allege that the appointment of the CEO of the hospital is made by the President but rather it is made as it was, by the Board in consultation with the Cabinet Secretary for the Ministry of Health, who in any event represents His Excellency, the President. The reference to concurrence of the Head of Public Service is essentially the concurrence of the President. 2. That, the Office of the Chief of Staff and Head of the Public Service (COS/HOPS) is a central executive office within the Executive Office of the President of Kenya. It serves as the administrative head of the President’s office, coordinating government operations and ensuring the effective delivery of public services. The role of the Head of Public Service flows from the roles of the President as provided under **Article 132 (3) (b)** of the Constitution which provides that: ***“The President may perform any other executive function provided for in this Constitution or in national legislation and, except as otherwise provided for in this Constitution, may establish an office in the public service in accordance with the recommendation of the Public Service Commission”*** 1. That, on behalf of the President, the office of the Chief of Staff and Head of Public Service handles communication with ministries, state departments and agencies regarding the daily operations of the government. The press release dated 17th May 2024 was one such communication made by the office on behalf of the President. 2. That, in exercise of the powers bestowed upon his office, the Head of Public Service issued Circular no. OP/CAB.9/1A dated 25th November 2022 to all Cabinet Secretaries mandating that after the appointment of a CEO of a State Corporation and before confirmation of such appointment concurrence must be sought from the Head of Public Service. That, this Circular was issued on behalf of the President in exercise of the powers of the president as provided under **Article 132 (3)** of the Constitution which provides that; ***“The President shall direct and coordinate the functions of ministries and government departments;”*** 1. There are several government circulars which are administrative directives meant to further clarify or supplement the existing law. Refer to the case of **Omtatah v Head of Public Service & 2 others [2024] KEHC 198 (KLR)**. Such circulars are issued by the various ministries, the Public Service Commission, the Head of Public Service or the Statutory Corporations and Advisory Committee. The Circular No. OP/CAB.9/1A merely amplified what was already provided under Article 132 of the Constitution, the State Corporations Act and Legal Notice No. 78 of 1998. 2. That, there is no provision in the Constitution, the State Corporations Act or any other law that expressly prohibits state corporations from seeking concurrence of the Head of Public Service. We submit that the concurrence of the Head of Public Service in the appointment of CEOs of State Corporations does not amount to usurpation of the appointment of the powers of the board nor is it a violation of Article 232 of the Constitution as alleged or at all. It is an act done in accordance with the Constitution and the State Corporations Act. 3. As to whether there was a need for public participation in appointment of MTRH CEO. That, the Petitioners submitted at paragraphs 98 to 100 of their submissions dated 1st October 2024 that the Respondents failed to involve the people in the recruitment of the CEO for MTRH which the Petitioners allege is an issue dealing with governance. The Petitioners relied on the Supreme Court’s decision in the case of **British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 others;** **Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tobacco Kenya Limited (Affected Party) [2019] KESC 15 (KLR)** whereby the Supreme Court delineated the threshold and components for meaningful public participation. 4. To begin with, the Supreme Court in that case dealt with the question of public participation in the enactment of the Tobacco Control Regulations 2014, which was a subsidiary legislation/ statutory instrument enacted pursuant to the provisions of the Tobacco Control Act. What the Supreme Court addressed was compliance with public participation in the making of the regulations within the meaning of the Statutory Instruments Act. In the instant case, the issues in contention do not relate to the enactment of an Act of Parliament or the making of a statutory instrument. The issue in dispute is the propriety of the recruitment exercise for CEOs of the named state corporations. 5. There is no specific law requiring public participation in the recruitment of the CEO of MTRH. Particularly, Legal Notice No. 78 of 1998 does not require the board to consult the public or invite public comments for consideration before appointing the CEO. 6. That, the question whether the process of recruitment of CEOs of state corporations should be subject to public participation is not new to our courts. In the case of **Commission for Human Rights & Justice v Board of Directors, Kenya Ports Authority & 2 Others**; **Dock Workers Union (Interested Party) [2020] eKLR**, the Petitioner claimed that public participation was ignored in the recruitment of the Managing Director of Kenya Ports Authority. In a rejoinder, the Respondents argued that **Section 5(1)** of the KPA Act mandated the Kenya Ports Authority to appoint the Managing Director. They further argued that Boards of Directors of State corporations are independent and that their decisions are only fettered by the law. It was also argued that public participation had been conducted through representation of board members who were involved in the recruitment process. Rika, J of the Employment and Labour Relations Court, expressed himself as follows: - ***“Should the process of appointment of the Managing Director of the KPA, be equated to the process of making legislation or regulations in public entities?*** ***The High Court, in Robert N. Gakuru & Others v. Governor Kiambu County & 3 others [2014] eKLR, held that it behoves County Assemblies, in enacting legislation, to do whatever is reasonable, to ensure that many of their constituents are aware of the intention to enact legislation. The constituents must be exhorted to give their input. Should the level of public participation be the same, in appointment of the Managing Director of a State Corporation? Should the Respondents exhort Kenyans to participate in the process of appointment of the Managing Director? In the respectful view of this Court, appointment of the Managing Director, KPA, is a highly specialized undertaking, which is best discharged by the technocrats comprising the Board, assisted by human resource expert committees as the Board deems fit to appoint. The existing law governing the process of appointment of the Managing Director KPA leans in favour of technocratic decision-making. Democratic decision-making, involving full blown public participation may be suitable in the processes of legislation and related political processes, such as the Makueni County Experiment and the BBI, subject matter of Dr. Mutunga’s case studies. But technocratic decision-making suits the appointment of CEOs of State Corporations. Even as we promote democratic [people-centric] decision-making processes, we must at the same time promote technocracy, giving some space to those with the skills and expertise to lead the processes, and trusting them to provide technical solutions to society’s problems. The Board and the Committees involved in the process are in the view of the Court, well - equipped to give the Country a rational outcome. The Court agrees with the Respondents, that the 1st Respondent is sufficiently representative of stakeholders of the KPA, and the appointment of the Managing Director, is more of a technocratic decision making process, than a democratic- decision making process. It need not totally open itself up, to the scrutiny of every person. The public is aided by public watchdogs – DCI, EACC, CRB, KRA and HELB – in assessing the antecedents of the applicants. The State Corporations Inspector General is part of the ad hoc committee set up by the 1st Respondent, to evaluate and shortlist applicants. Interviews shall be carried out by the full Board, face to face with the candidates. There are adequate measures taken by the 1st Respondent to ensure the process meets the demands of transparency and accountability to the public*.”** 1. The recruitment exercise is done in accordance with the various laws and statutory instruments including the State Corporations Act, Legal notice No. 78 of 1998 and Mwongozo Code of Governance for State Corporations. It is presumed that the relevant state departments conducted adequate public participation prior to the enactment of these Acts and statutory instruments containing the law and principles on recruitment of CEOs of state corporations and governance of state corporations. 2. As to whether the process leading to appointment of MTRH CEO met the constitutional and statutory requirements relating to appointment of public officers they refer to the affidavit of **Justis Otiso** sworn on 6th June 2024. Paragraphs 4 to 20 of the affidavit together with the exhibits annexed therein painting a clear picture of the entire recruitment process from the advertisement, consideration of the applications, shortlisting of candidates, conducting interviews and appointment of the 4th Respondent as the CEO of MTRH as summarized below. 3. That, the 4th Respondent did not participate in recruitment of the CEO at the time of the recruitment, he was the acting CEO. When the position was advertised, he submitted his application for consideration alongside other internal and external applications. 4. That, Clause 3(3) of the Legal Notice No. 78 of 1998 as amended by Legal Notice No. 40 of 2021 provides that the CEO shall be responsible for the day to day operations and administration of the Board, under the general guidance and supervision of the board. A careful reading of the Mwongozo Code of Governance for State Corporations will show that the positions of CEO and that of Member of the Board are two distinct provisions, however, pursuant to clause 1.1(4) the CEO shall be a board member with no voting rights. 5. That, **Sections 107(1),** **(2)** and **109** of the Evidence Act, Cap. 80 of the Laws of Kenya deals with the burden of proof, states; **Sections 107(1)** and **(2):** ***1. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.*** ***2. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.*** ***Section 109: Proof of particular fact*** ***That, the burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.*** 1. That, this legal principle was discussed in Bungoma High Court Election Petition No. 2 of 2017 **Suleiman Kasuti Murunga vs. IEBC & 2 Others (2018) eKLR** as follows: - ***“The Petitioner on whom the legal burden of proof lies may or may not adduce sufficient and admissible evidence in proof of any of the allegations in the Petition. On one hand, if no sufficient evidence is adduced to the required standard, then the allegation(s) fail and it all ends there. On the other hand, if evidence is adduced to the satisfaction of the Court that an election ought to be impugned, then it becomes the burden of the Respondent(s) to adduce evidence rebutting the allegations and to demonstrate that the law was complied with and/or that the irregularities did not affect the result of the election. At that point the burden is said to shift to the Respondents. That is the evidential burden of proof. It therefore follows that the legal burden of proof is static and rests on the Petitioner throughout the trial. It is only the evidential burden of proof which may shift to the Respondents depending on the nature and effect of evidence adduced by a Petitioner.”*** 1. Reference is made of the case of **Matendechele v Sunstar Hotel Nairobi [2023] KEHC 1921 (KLR)** Mrima J. settled the principle that in Constitutional Petitions, the Petitioner bears the legal and evidential burden of proof and that the standard of proof is on a balance of probabilities. The burden of proof in this matter therefore lies with the Petitioners to prove their allegation that the 4th Respondent took part in the decision-making process leading to his recruitment as CEO of MTRH. 2. That, the only document relied on by the Petitioners in support of the allegation that the 4th Respondent took part in the recruitment exercise was the notice of the Special Full Board Meeting dated 16th February 2024 the notice, which communicated the agenda of the board meeting, was issued to the Chairman of the Board and other board members in exercise of the CEO’s mandate provided under Clause 3 (3). The notice of a meeting is not proof that the meeting happened nor of the members present nor the business conducted in the said meeting. It merely communicates intent. 3. That, the Petitioners therefore have not discharged the legal and evidential burden of proof and the same cannot shift to the Respondents. As deponed by Mr. Justus Otiso, the 4th Respondent was not a member of the People’s Management Committee. The 4th Respondent did not participate in the interview panel which allocated the candidates scores. 4. That, the process leading to recruitment of MTRH CEO complied with Articles 2, 10, 27,28, 41, 73, 75 and 232 of the Constitution. 5. That, the Petitioners alleged that there was no gender and ethnic balance in the shortlisting of candidates for the CEO position and that none of the PWDs applications was considered however Article 10 of the Constitution sets out national values and principles of governance which bind all state organs, state officers, public officers and all persons whenever they apply the law or make and implement public policy decisions. These principles include; patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people; human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized; good governance, integrity, transparency and accountability and sustainable development. 6. That, **Article 27** provides for the right of equality before the law and freedom from discrimination. 7. That**, Article 28** provides that every person has inherent dignity and the right to have that dignity respected and protected. **Article 41** provides for the right to fair labour practices. 8. That **Article 73** prescribes the responsibilities of leadership for state officers whereas **Article 75** provides for the conduct of state officers. We shall not submit on this as we do not represent any state officer. 9. That, **Article 232** provides for the values and principles of public service which include: ***(a) high standards of professional ethics;*** ***(b) efficient, effective and economic use of resources;*** ***(c) responsive, prompt, effective, impartial and equitable provision of services;*** ***(d) involvement of the people in the process of policy making; (e) accountability for administrative acts;*** ***(f) transparency and provision to the public of timely, accurate information;*** ***(g) subject to paragraphs (h) and (i), fair competition and merit as the basis of appointments and promotions;*** ***(h) representation of Kenya’s diverse communities; and*** ***(i) affording adequate and equal opportunities for appointment, training and advancement, at all levels of the public service, of—*** ***(i) men and women;*** ***(ii)the members of all ethnic groups; and*** ***(iii) persons with disabilities.*** 1. That the vacancy was advertised in two newspapers of nationwide circulation with a period of over one month for applicants to submit the relevant documents and that there was a declaration that MTRH is an equal opportunity employer promoting Diversity, equality, inclusivity and belonging. PWDs and other minority groups were encouraged to apply. This is compliant with the requirements of article 27 of the constitution on the right of every person to equality before the law. The advertisement also conforms to the provisions of **Section 37** of the PSC Act which states that; ***“(1) Where a vacancy in a public office is to be filled, the Commission or authorized officer shall invite applications by advertising the vacancy in the Commission's website, at least one daily newspaper of nationwide coverage, the radio and other modes of communication, so as to reach as wide a population of potential applicants as possible.*** ***(2) The Commission or an authorised officer shall ensure that an invitation for application does not discriminate against any person.*** ***(3) The advertisements in subsection (1) shall be conducted in an efficient and effective manner so as to ensure that the applicants, including persons who for any reason have been or may be disadvantaged, have an equal opportunity to apply for the advertised positions.”*** 1. That MTRH and the Board had no control over the applications submitted. The People’s Management Committee of the Board evaluated all applications in a fair manner having regard to the Law and internal policies and shortlisted 8 candidates. The list of applicants and shortlisted candidates was published on the Hospital’s website in compliance with the principles of transparency and accountability. In the case of **Consumer Federation of Kenya (COFEK) vs. Attorney General & 2 Others [2012] eKLR** the court stated that; ***“Secondly, the shortlisted candidates were also advertised. This meets the object of public participation and transparency. On one part, the public is entitled to know who has been shortlisted. The public participates by being able to send any reports or objections on any of the persons who have been selected. Those who have not been shortlisted are given an opportunity to make inquiries as to why they have not been shortlisted.”*** 1. The Petitioners’ allegations that the recruitment process was shrouded in secrecy and opaqueness are therefore unfounded. All members of the public including the Petitioners and the applicants for the position had the opportunity to scrutinize the short list and raise any objections to the same but none was received by the Board. There being no objections, the Board proceeded to conduct the interviews on 4th March 2024. 2. That out of 49 applications, 23 applicants were from the Kalenjin tribe. It therefore goes without saying that majority of the shortlisted candidates would have been from the Kalenjin tribe. Out of 8 shortlisted candidates, 5 of them were of Kalenjin ethnicity. This was not out of the ordinary since MTRH, despite being a National Referral Hospital serving the entire East African region, is geographically situated in an area where the inhabitants are predominantly from the Kalenjin tribe. A substantial number of the applicants were employees of the hospital. This is equally expected since the Human Resource Policies as well as the PSC regulations promote career development within state corporations through internal recruitment. 3. There were only 6 women out of the 49 applicants. **Article 27 (8)** of the Constitution requires that the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender. The Board was obligated to competitively recruit a CEO having regard to all the requirements under the establishing statute and considering article 27 of the Constitution. Holding all factors constant, the female applicants made up approximately 12% of the pool of candidates for a single position. The Petitioner has not shown which gender considerations were allegedly ignored in the recruitment process and reiterate that MTRH had no control on who would submit their applications. 4. The right under **Article 27** is not an absolute right as it has to be read together with other rights. Therefore, the fact that only one woman was shortlisted is not proof that the board did not consider the other applicants. The Petitioner ought to have pleaded with specificity the particular qualifications of the female applicants that were allegedly ignored so that it can be said that there is a possibility that the distinguishing factor was the gender aspect. The requirement under **Article 27 (8)** has to be considered holistically by looking at the entire composition of the state entity concerned, considering the requirements for the position, the number and nature of applications received among other factors. It is not sufficient to simply single out a position and allege that the fact that a male candidate was appointed is proof that there was a violation of **Article 27 (8)** of the Constitution. This also applies to the argument that the Board did not consider the right of equality of PWDs. 5. The Petitioners made several allegations *inter alia* that majority of the senior management of MTRH, allegedly 65% is comprised of employees who come from the Kalenjin community. We submit that the Petitioners have equally not discharged the burden of proof on this issue of fact. For the Petitioners to arrive at the figure of 65%, this data should ideally be drawn from a review of the entire staff establishment and the biodata showing the ethnicity of each member of staff. These are verifiable facts which ought not to be left for mere speculation. The list of directors produced as Petitioners Exhibit 9 does not contain any indication of the source of the document, a letterhead, a signature certifying authenticity of the same nor any indication that the names listed there have any connection with MTRH. 6. That **Section 7** of the National Cohesion and Integration Act provides that no public establishment shall have more than one third of its staff from the same ethnic community. This is the statutory standard against which ethnic diversity in state corporations is measured. The unfounded allegation that 65% of senior management comes from one community is insufficient as it does not reflect the entire staff establishment including regional branches of the MTRH. 7. The Petitioners have relied on the case **of Orogo v Chairman Board of Directors Kenya Revenue Authority & another (Petition E004 of 2023) [2024] KEHC 1968 (KLR) (1 March 2024).** The case related to recruitment of 1,406 revenue service assistants and 600 graduate trainees to the Kenya Revenue Authority. This case is distinguishable from the instant case in that the large number of positions advertised, attracted an equally large volume of applications. It was therefore not a difficult exercise to discern the statistics in terms of ethnicity, gender, race, age, disability and other parameters and compare that with the demographics of Kenya, as per the population census last conducted in 2019. 8. In this, case the assessment was primarily based on selection of one out of 49 applicants most of whom were male and/ or came from the Kalenjin community even though the advertisement was made to all Kenyans. The fact that one person was selected, who happened to be of Kalenjin ethnicity, male and not a PWD is not proof of non-compliance with Article 27 of the Constitution. 9. The Petitioners further alleged that, the shortlisted candidates did not meet the required qualifications they relied on the screenshots taken from the Kenya Medical Practitioners Pharmacists and Dentists Board’s (KMPDB) website. To begin with, the Petitioner relied on a certificate of electronic evidence produced at page 102 of the Petition. The certificate is defective and does not comply with the requirements under Section 106B (4) (a) of the Evidence Act in that it does not give particulars of the computer output involved in the production of that electronic record and does not meet the conditions under **Section 106 B (2)** which are: ***a) the computer output containing the information was produced by the computer during the period over which the computer was used to store or process information for any activities regularly carried out over that period by a person having lawful control over the use of the computer;*** ***b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;*** ***c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its content; and*** ***d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.*** 1. That, without prejudice to the foregoing, we submit that the shortlisted candidates met all the qualifications indicated in the job advertisement. The unauthenticated screenshot taken from KMPDB portal indicating the doctors’ qualifications, discipline and specialties is not conclusive proof of a doctor’s qualifications. These have to be verified from original certificates from recognized institutions. The Peoples Management Committee of the board scrutinized all the applications and considered all the requirements stated in the advertisement before shortlisting the candidates. The Petitioners cannot be heard to say that a candidate like the 2nd Interested Party ought to have been shortlisted simply because he had a sub-specialization while ignoring all the other job specifications, core competencies personal attributes and other requirements in the advertisement which were all reviewed on merit. 2. That the Petitioners additionally stated that the candidates were not required to submit chapter 6 documents until a candidate had been chosen. These documents include certificates include; Police Clearance Certificate to confirm the criminal record of an individual; Credit Reference Bureau clearance certificate to confirm the debt-standing record of an individual, the Higher Education Loans Board Certificate to ensure that the individual has repaid their student loan and the Ethics and Anti-corruption Certificate to confirm that the individual has no record of corruption. 3. That, Chapter 6 of the constitution does not specify the documents required or the point at which such documents ought to be produced. This is clarified in the Employment Act. **Section 9** of the Employment Act provides that; ***(5) In respect of recruitment, an employer shall not require an employee to submit any clearance or compliance certificate unless such employer intends to enter into a contract of service with the employee:*** ***Provided that an applicant for a state office shall provide compliance or clearance certificates at such times in the recruitment or approval process as they may be required.*** ***(6) An employer who intends to enter into a written contract of service may, in compliance with chapter six of the Constitution, request an employee to submit mandatory clearance certificates from the relevant entities.*** ***(7) Notwithstanding subsection (6), an employer may, where an employee does not satisfy the requirements under subsection (6), withdraw an offer of contract of service.*** 1. That, nothing in the above provision makes it mandatory for an employer to require an employee to produce the so-called Chapter 6 documents at the time of applying for a position. It is only when the employer has identified the candidate and intends to enter into the contract of service that the employer may require the candidate to produce such documents and upon scrutiny, the offer may be withdrawn. In respect of applicants for a state office, the documents may be produced at any point during the recruitment and approval process. It is worth noting that the office of the CEO of MTRH is not a state office within the meaning of Article 260 of the Constitution. 2. That, the requirement to produce Chapter 6 documents upon identification of the candidate is in accordance with Clause 2.23 of the MTRH Human Resource Policy and Procedures Manual. The manual further provides that employees are to be placed on probation upon appointment. 3. That this allows an employer to conduct background checks, obtain and verify Chapter 6 documents and if found unsatisfactory the employee is not confirmed to the position. To conclude this point, we submit that the requirement to submit the so-called Chapter 6 documents after selection of the candidate was in conformity with Chapter 6 of the Constitution, Section 9 of the Employment Act as well as the internal policy. 4. That in view of the foregoing, it is submitted that the Board of MTRH conducted the recruitment exercise in a transparent and fair manner consistent with the constitutional requirements under Articles 2, 10, 27,28, 41, and 232 of the Constitution. 5. As to whether the Petition meets the threshold for a constitutional petition? That, it is a well-established principle that a person who seeks redress from a court of law on a matter which involves reference to the Constitution should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed and the manner of infringement. In this case the Petition lacks precision as the Petitioners have merely thrown before the court articles of the Constitution, most of which apply only to state officers with the hope that the court will sieve through them and make sense out of them. 6. That, the Petitioner has not clearly stated how their rights have been infringed as was held in the case of **Anarita Karimi Njeru v Republic [1979] KEHC 30 (KLR):** ***“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”*** 1. That, the process of recruiting the 4th Respondent was transparent and done in accordance with the Constitution of Kenya 2010, the State Corporations Act, Mwongozo Code of Governance for State Corporations, government circulars issued from time to time and Moi Teaching and Referral Hospital's constitutive documents, instruments and policies. 2. That, the advertisement for the position of Chief Executive Officer MTRH was published on two newspapers of nationwide circulation including My Gov. newspaper on 12th December 2023. The advertisement was also placed on the website of the hospital and remained on the website for the entire duration of the advertisement. 3. That, the said advertisement on 12th December 2023 gave all Kenyans from all walks of life and professions regardless of the ethnicity, physical ability or any other consideration, an opportunity to apply for this position. The advertisement did not give any specifications or preference of tribe, ethnicity, gender, race, physical ability or other characteristics of the applicants. 4. That, the applications were to be sent via email addressed to the Chairperson of the Board of the Hospital. The closing date for applications was on 16th January 2024 at 5:00 PM. 5. That, the Hospital received a total of 49 applications from Kenyans from all walks of life regardless of their gender, abilities and ethnicity. It is worthy to note that almost HALF of the applicants were from the Kalenjin ethnic group; out of a total of 49 applicants 23 were from that ethnic group. 6. That, the Hospital had no control over the number and the nature of the applications it received. The Hospital is situated in a region of the country where majority of the Residents are from the Kalenjin tribe, it should therefore not be surprising that 23 out of the 49 applicants were from the Kalenjin tribe. 7. That, the allegations at paragraph 47 of the Petition that the Hospital's senior management consists of 65% of members from one tribe/ethnic background or that the board previously recruited people with fake degrees is not substantiated nor particularized. 8. That, during its meeting of 26th January 2024, the Board opened the applications which had been received on email. Thereafter the Board resolved that the People's Management Committee of the Board should prepare a long list of applicants for the Board's consideration. 9. That, the People's Management Committee held it's meeting on 1st and 2nd February 2024 for that exercise and drew up the long list of 49 applicants in accordance with the requirements of the indent. The People's Management Committee thereafter made their report and forwarded the same to the full board for discussion. 10. The full Board had a meeting on 14th February 2024 to shortlist the candidates that met the minimum requirements and came up with a list of 8 candidates who met the qualifications of the advertisements as well as Legal Notice No. 40 of 2021. In that meeting the Board resolved to invite the 8 candidates for interview at a venue away from the hospital in order to give all candidates a neutral and conducive environment given that a substantial number of the applicants were employees of the hospital. 11. That, both the long list and the short list of the candidates who had applied for the position of CEO were published in the Hospital's website where they were available for public scrutiny. 12. That the Hospital invited two officials from the Ministry of Health to provide support to the recruitment exercise on the day of interview. The interviews were held on 4th March 2024 at Boma Inn Hotel in Eldoret. On that date, the board interviewed 8 candidates and upon deliberation came up with the names of those with the highest score. The board there after forwarded to the Cabinet Secretary for Health its report containing the names of those with the highest scores. This is in accordance with the requirement of section 3 (1) of Legal Notice No. 40 of 2021 which provides that the Board shall appoint a CEO with the approval of the Cabinet Secretary. 13. That, the 4th Respondent met the requirements of Legal Notice No. 40 of 2021 which requires that: ***A person shall be qualified for appointment as the Chief Executive Officer if that person-*** ***(a) is a registered medical practitioner who holds a Master's degree in a health-related field;*** ***(b) has had a distinguished career in a senior management position in either the private or public sector for at least ten years; and*** ***(c) satisfies the requirements of Chapter Six of the Constitution.*** 1. That the documents that are required to be submitted by candidates under chapter six of the constitution have since been required to be made after a candidate has been successfully chosen for the position for which they applied for. 2. That, it would be a breach of the Data Protection Act for the 1st to the 13th Respondents to reveal the details of the candidates who applied for or were shortlisted to the public without the prior written consent of those candidates and without any lawful basis. 3. That, the petitioners have not clearly pinpointed the provisions of the constitution that are alleged to have been breached and neither have they specifically proven provisions have been breached. Rather the petitioner has put forth blanket allegations hoping that they will stick. 4. That the recruitment and selection of the CEO was carried out in a lawful, fair and transparent manner. The instruments of the Hospital which include the State Corporations Act, Legal Notice No. 78 of 1998 and the Human Resource Policy & Procedures Manual 2018 do not provide for public participation in the process of appointment of the CEO. There is no provision in the constitutive documents of the Hospital to publish the criteria for shortlisting for public participation unlike other bodies. Similarly, the Constitution does not provide for public participation in recruitment exercise of state agencies such as MTRH. The Petitioner has not specified the alleged violations of the Hospital's Human Resource Policy & Procedures Manual 2018. The allegation that the recruitment process lacked transparency therefore lacks any basis. MTRH STATE CORPORATION'S STATUTORY INSTRUMENT: 1. That, Legal Notice No. 78 OF 1998 provides that, unless done by a specific Act of Parliament, State Corporations in Kenya, including the Hospital, are created under the Statutory Corporations Act Cap 446 Laws of Kenya**. Section 3** of the State Corporations Act Cap 446 provides that: ***Establishment of state corporations by the President*** ***(1) The President may, by order, establish a state corporation as a body corporate to perform the functions specified in that order.*** ***(2) A state corporation established under this section shall-*** ***(a) have perpetual succession;*** ***(b) in its corporate name be capable of suing and being sued;*** ***(c) subject to this Act, be capable of holding and alienating movable and immovable property.*** 1. That, the Act has elaborate processes for appointment and composition of Boards of State Corporations including the office of the Chief Executive Officer. Part III of the State Corporations Act provides for the Establishment and powers of State Corporations. **Section 5 (3)** provides that "A state corporation may engage and employ such number of staff, including the chief executive on such terms and conditions of service as the Cabinet Secretary may, in consultation with the Committee, approve." which it was established. 2. That, the Moi Teaching and Referral Hospital was established under Legal Notice No. 78 of 1998 which is a Presidential Order made pursuant to **Section 3(1)** of the State Corporations Act. The Hospital had been in existence since pre-colonial times and was only given its current status and name by legal notice number 78 of 1998 by the then President of the Republic of Kenya Daniel Toroitich Arap Moi. The legal notice number 78 of 1998 only served to put in place the board of management of the hospital and the composition of that Board of management and that was purely at the pleasure of the President of the Republic of Kenya and in accordance with the code of governance that was in place at that time. 3. That, the said legal notice number 78 of 1998 was amended by legal notice number 56 of 2002 which changed the composition of the board and such composition and amendment was made also pursuant to **Section 3(1)** of the State Corporations Act. The legal notice number 78 of 1998 was farther amended by legal notice number 40 of 2021 whose main aim was to change the composition of the board of directors and to provide for the appointment of the Chief Executive Officer of the Hospital and the Corporation Secretary in line with the Mwongozo Code of Governance 4. That, the allegation of the Board lacking the requisite power to appoint the CEO due to alleged lapse of the statutory Instrument is a misguided interpretation of the provisions of the State Corporations Act and the Statutory Instruments Act. The power of the Board to appoint the CEO is derived not only from the Legal Notice No. 78 of 1998 but also from the above-mentioned provisions of the State Corporations Act which have not been repealed by **Section 21** of the Statutory Instruments Act or any other written law. 5. That, in a similar vein, State Corporations are wound up under the said State Corporations Act CAP 446. **Section 27** of the State Corporations Act CAP 446 provides as follows: ***27. Functions of the Committee (State Corporations Advisory Committee)*** ***(1) The Committee shall, in consultation with the Attorney General and the National Treasury, advise the President on the establishment, reorganization or dissolution of state corporations.*** 1. That, the Petitioner has not demonstrated that any of the above steps have been taken in order to wind up the Hospital or dissolve the Board. The Hospital has not been wound up and it is not one of those earmarked for winding up. The Hospital and the Board as it stands is operating within the confines of the law. 2. That the amendment order, Legal Notice No. 40 of 2021 introduced changes particularly relating to the composition of the Board, the office of the CEO and the Corporation Secretary. The purpose and content of the MTRH Board Order (Legal Notice No 78 of 1988) is essentially to establish the Hospital as a state Corporation and to provide for its governing body. These provisions supplement the provisions of the State Corporations Act. The amendments made in 2021 were so substantial that they had the effect of re-enacting the entire instrument and therefore saving it from the lapse (If any) of the ten years under section 21 of the Statutory Instruments Act. 3. That, by purporting that the Legal Notice No. 78 of 1998 lacks the force of law, the Petitioner has invited the Court to adopt an interpretation that would have absurd results in that the Hospital would be considered to be operating outside the law. Such an interpretation does not serve the public interest. MTRH is a major referral hospital for patients in the East African region too. MTRH is not only a hospital but also a research and learning institution. In fact, one of the board members is the Principal of the College of Health Sciences, Moi University. 4. That the Petitioners cannot possibly purport to be human rights defenders while at the same time they are advocating for the dissolution of a national referral hospital which millions of Kenyans depend upon in their quest for emergency medical treatment as guaranteed under Article 43 of the Constitution. An interpretation that leads to the nullification of the establishing instrument would have a ripple effect on the students, patients, researchers, employees, all Kenyans and people in the entire region who depend on it in one way or another. 5. That, the Impugned process of the appointment of the CEO is pursuant to the Constitution of Kenya, State Corporations Act, legal notice number 40 of 2021 as well as the Mwongozo Code of Governance for State Corporations 2015. Section 3 (1) of Legal Notice No. 40 of 2021 provides that the CEO shall be appointed by the Board on such terms and conditions of service as the Cabinet Secretary may, in consultation with the Committee, approve. It is therefore inaccurate for the Petitioners to allege that the appointment of the CEO of the hospital is made by the President but rather it is made as it was by the Board in consultation with the Cabinet Secretary for the Ministry of Health, who in any event represents the President. 6. That, there are several government circulars which exist to further clarify or supplement the existing law which circulars come from either the parent ministry, the Public Service Commission, the Head of Public Service or the Statutory Corporations and Advisory Committee. The Circular no. OP/CAB,9/1A dated 25th November 2022 gave all Cabinet Secretaries an advisory that after the appointment of a CEO of a State Corporation and before confirmation of the same concurrence has to be sought from the Head of Public Service. The Head of Public Service sits in the office of the president and therefore gives his concurrence on behalf of the president. I verily believe that this provides an added level of checks and balances which ensure that candidates are suitably vetted and appointments are aligned with the constitutional tenets on diversity. (A copy of the Circular is at page 8 to 9 of the exhibit) 7. That, the Petitioner's averred that the requirement for concurrence by the Head of Public Service is contrary to the provisions of the Constitution or the Public Service Commission Act. However, the Petitioner did not identify the particular provisions of the Constitution of the Public Service Commission Act alleged to have been violated or how the alleged violation arose. The circular and requirement for concurrence is therefore binding and has the full force of the law. 8. That, the exercise by the Public Service Commission to authenticate academic certificates for all its employees in the public service has no relevance or bearing to the current petition and was being undertaken in all public institutions, including the Ethics & Anti-Corruption Commission, prior to the exercise of the recruitment of the CEO which is the subject of this Petition. 9. In view of the foregoing, the Petition dated 20th May 2024 lack any basis whatsoever. The Petition is frivolous, vexatious an abuse of court process and ought to be struck out with costs to the Respondents. 10. That, in view of the foregoing, the Petition dated 20th May 2024 lack any basis whatsoever. The Petition is frivolous, vexatious an abuse of court process and ought to be struck out with costs to the Respondents. 11. The principle set in the above case were meant for furtherance of justice. The Court of Appeal in the case of **Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR)** underscored this by stating that: ***“We cannot but emphasize the importance of precise claims in due process, substantive justice, and the exercise of jurisdiction by a court. In essence, due process, substantive justice and the exercise of jurisdiction are a function of precise legal and factual claims.*** ***However, we also note that precision is not coterminous with exactitude. Restated, although precision must remain a requirement as it is important, it demands neither formulaic prescription of the factual claims nor formalistic utterance of the constitutional provisions alleged to have been violated. We speak particularly knowing that the whole function of pleadings, hearings, submissions and the judicial decision is to define issues in litigation and adjudication, and to demand exactitude ex ante is to miss the point. However, our analysis cannot end at that level of generality. It was the High Court’s observation that the petition before it was not the “epitome of precise, comprehensive, or elegant drafting.”*** ***Yet the principle in Anarita Karimi Njeru (supra) underscores the importance of defining the dispute to be decided by the court. In our view, it is a misconception to claim as it has been in recent times with increased frequency that compliance with rules of procedure is antithetical to Article 159 of the Constitution and the overriding objective principle under section 1A and 1B of the Civil Procedure Act (Cap 21) and section 3A and 3B of the Appellate Jurisdiction Act (Cap 9). Procedure is also a handmaiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle.”*** 1. To demonstrate the lack of precision as explained in the **Anarita Karimi** case, the Petitioner challenged the recruitment of the CEOs of Athi Water Works Development Agency, Kenya Broadcasting Corporation and Kenya National Shipping Line Limited yet there isn’t an iota of evidence or argument made to show how the said recruitments were allegedly flawed or that their enabling statutory instruments were invalid. Even the allegations made against MTRH are not particularized in many instances as described above. 2. To that end, litigants should not use the courts as a tool to handle frivolous and vexatious petitions whose sole intention is to engage in a fishing expedition in the high seas of constitutional litigation. The reliefs sought herein have adverse consequences on not only MTRH and the other state corporations sued herein but also to the general public. The recruitment exercise for the CEOs of the 4 state corporations sued herein is an expensive venture which requires use of public funds to achieve. All the stakeholders involved at the recruitment and approval stages were conscious of the critical mandate bestowed upon them and the implications thereof and as such conducted the exercise in a transparent manner only for it to be halted through the grant of conservatory orders without them having had an opportunity to be heard through an inter partes process. The Petitioner now seeks that the government should spend additional public resources in redoing the exercise. This court should not sanction such a move. 3. In a claim alleging discrimination, the courts require an analysis of differential treatment based on certain comparators. This requires evidence and the maker of these allegations to be tested by cross examination. The Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) Practice and Procedure Rules envisage this and allow for oral hearing under Rule 20 thereof. We urge the court to dismiss the Petition on the basis that the contested facts should not have been presented in a petition, and having not been tested on cross examination, should fail. 4. In in conclusion it is submitted that, the Petition is devoid of merit and is an abuse of court process. The nullification of the appointments which disrupts the operations in the said state corporations does not serve the public interest in any way whatsoever. We pray that the Petition be dismissed in its entirety with costs to the Respondent so that justice will be served to the patients of MTRH and all members of the public who rely on the hospital to access and realize their right to health. **Submissions by the 21st Respondent;** 1. The 1st, 21st, 23rd and 25th Respondents recruited their Managing Director/ Chief Executive Officer and made a recommendation for the most suitable candidates for appointment to the said position. 2. That Vide a press release dated 17th May 2024; the Head of Public Service communicated the appointment of the 4th, 20th 22nd and 24th Respondents as the Chief Executive officer/Managing Directors of the 1st, 21st, 23rd and 25th Respondents. Aggrieved by the Press Release, the Petitioners filed the Petition and Application dated 20th May 2024 challenging the process of appointment. 3. The Respondents filed Applications and a Notice of Preliminary Objection challenging the jurisdiction of the Honourable Court to hear and determine the Petition dated 20th May 2024. In a Ruling delivered on 20th June 2024, the Court pronounced itself and upheld its jurisdiction. 4. Appeal numbers **COACA 107 of 2024** and **COACA E116 of 2024** were preferred against the Ruling dated 20th June 2024 before the Court of appeal at Nakuru. 5. The two appeals were consolidated and the Court of Appeal delivered a Ruling dated 23rd May 2025 upholding the jurisdiction of the High Court at Nakuru to hear the Petition dated 20th May 2024. 6. Dissatisfied with the Ruling of the Court of Appeal, the 1st and 4th Respondents filed appeal number 33 of 2025 and the 2nd and 3rd Respondents filed appeal number 30 of 2025 before the Supreme Court. The said appeals were consolidated and are pending before the Supreme Court. 7. Despite the pendency of the Appeals before the Supreme Court, the High Court proceeded to direct that parties comply with the directions on disposal of the Petition. It is against this backdrop that the 21st Respondent files these submissions in opposition to the Petition dated 20th May 2024. 8. The 21st Respondent has fleshed the following issues for determination; 9. Whether the Court has territorial and subject matter jurisdiction to hear the Petition dated 20th May 2024; For record purposes, the 21st Respondent submits that, as stated in the Application dated 24th May 2024 filed by the 20th and 21st Respondents, the dispute in the Petition dated 20th May 2024 falls within the exclusive jurisdiction of the Employment and Labour Relations Court and this Court lacks both the subject matter and territorial jurisdiction to hear the same. 10. In **Samuel Kamau Macharia v Kenya Commercial Bank Ltd & 2 others [2012] eKLR,** the Supreme Court stated as follows on jurisdiction: ***“A court’s jurisdiction flows from either the Constitution or legislation or both jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law… without jurisdiction, the Court cannot entertain any proceedings…Where the Constitution exhaustively provides for the jurisdiction of a court of law, the court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation.”*** 1. That Jurisdiction of a Court must flow from the Constitution of Kenya, statutes or both. A Court should only exercise jurisdiction as conferred on it by the Constitution of Kenya or the law. A Court must not act by assuming jurisdiction it does not have. 2. That **Article 162(2)(a)** of Constitution of Kenya required Parliament to establish courts of equal status to the High Court to hear and determine disputes relating to Employment and Labour Relations and Environment and Land Court. 3. That, **Section 5** of the Employment and Labour Relations Court Act established the Employment and Labour Relations Court. **Section 12** of the Act, provides for the jurisdiction of that Court. The Court has exclusive, original and appellate jurisdiction to determine all disputes referred to it in accordance with **Article 162(2)** of the Constitution of Kenya, the provisions of the Act, and any other written law that extends jurisdiction to that Court. 4. That under **Section 12** of the Employment and Labour Relations Court Act, jurisdiction of the Employment and Labour Relations Court is on disputes relating to, or arising out of employment between an employer and an employee; an employer and a trade union; an employers’ organization and a trade union’s organization; between trade unions; between employer organizations; an employers’ organization and a trade union; a trade union an employer’s organization or a federation and a member thereof; concerning registration and election of trade union officials; and disputes relating to the registration and enforcement of collective agreements. 5. On the other hand, jurisdiction of the High Court is donated by **Article 165(3)** of the Constitution of Kenya. This Court has unlimited original jurisdiction in criminal and civil matters. The Court also has jurisdiction in terms of **Article 65(3)(d)(i)** of the Constitution of Kenya to hear any question respecting interpretation of the Constitution, including the determination of the question of whether anything said to have been done under the authority of the Constitution or of any law is inconsistent with, or in contravention of the Constitution. 6. Reliance is placed on the Court of appeal case of **United States International University V Attorney General & 2 Others (2012) eKLR** held that the jurisdiction of the Employment and Labour Relations Court is employment disputes as defined in **Section 12** of the Employment and Labour Relations Court Act and extends to disputes relating to or connected with employment and labour relations and these includes pre-contract, contractual and post-contract matters. 7. That recruitment of an employee of a public institution such as a Managing Director/Chief Executive Officer arises from an employment relationship and any disputes arising therefrom pertain to the employment and labour relations. 8. That, **Article 162(2)(a)** of the Constitution of Kenya as read together with **Section 12** of the Employment and Labour Relations Court Act, reveal that the core jurisdiction of the Employment and Labour Relations Court is to determine disputes that arise out of employer-employee relationship and related matters. The said disputes include not only existing contractual disputes but also grievances related to the process of recruitment, selection and appointment. 9. That the Supreme Court in **County Government of Nyeri & Another v Kenya National Union of Civil Servants (2022) eKLR,** stated the importance of respecting the specialized jurisdiction conferred upon specific Court by the Constitution of Kenya and statute. 10. It is the 21st Respondent’s submission that, where a dispute relates to the recruitment or appointment into an employment position and/or challenges the procedural propriety or fairness of the process, the dispute falls squarely within the jurisdiction of the Employment and Labour Relations Court. 11. As provided under **Article 165 (5) (b)** of the Constitution of Kenya, the High Court is ousted from such dispute given that the High Court hear matters which are outside the purview of the Employment and Labour Relations Court. This Court therefore lacks subject matter jurisdiction to entertain the dispute in the Petition dated 20th May 2024. 12. That Rule 8 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules provides that every case shall be instituted in the High Court within whose jurisdiction the alleged violation took place and despite sub rule (1), the High Court may order that a petition be transferred to another court of competent jurisdiction either on its own motion or on the application of a party. 13. In Kenya, suits are instituted in a Court that has territorial jurisdiction meaning the Court that has competent jurisdiction which is closest to the place where the cause of action arose. 14. That the Petition dated 20th May 2024 was filed before the High Court in Nakuru. The 21st and 23rd Respondents are located in Nairobi while the 1st Respondent is based in Eldoret and the 25th Respondent is located in Mombasa. In addition, the impugned press release was issued in Nairobi. The cause of action therefore arose within the Employment and Labour Relations Court in Nairobi, Eldoret and Mombasa and not in Nakuru. 15. In upholding its jurisdiction, the High Court at Nakuru stated that with technological advancement such as e-filing and virtual Courts, the Respondents were not occasioned any prejudice. In addition, that the state corporations’ geographic sphere of operation is Kenya and petitions against them can be filed in any High Court in Kenya. 16. It is the 21st Respondent’s submissions that technological advancement does not displace the territorial jurisdiction of the Court which is limited to the physical location where the case of action arose. 17. The Petitioners decision to file the Petition before the High Court in Nakuru was unrelated to the location where the cause of action arose or parties are located. The Petitioners’ chose to file the matter before the High Court in Nakuru for their personal convenience which is a contravention of Rule 8 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules. 18. That the High Court in Nakuru therefore lacks territorial jurisdiction to hear the Petition dated 20th May 2025 and should therefore down its tools as held in the case of Owners of Motor Vessel “Lillian S” V Caltex Oil Kenya Ltd (1989) KLR 1. 19. With regards to the 2nd issue as to whether the recruitment and appointment of the 20th Respondent as the Managing Director of the 21st Respondent complied with the law; 20. The recruitment and appointment process of the 20th Respondent was done in compliance with the Constitution of Kenya and employment and labour laws. The process was conducted with integrity, transparency, equality, inclusiveness and accountability following the values and principles enshrined in articles 10, 27, 232 and 259 of the Constitution of Kenya. 21. That, Article 27 of the Constitution of Kenya guarantees equality and prohibits discrimination. On the other hand, article 232 requires that all public appointments be based on merits, fairness and transparency. 22. That, Article 232 of the Constitution of Kenya contains values and principles of public service which include: high standards of professional ethics; fair competition and merit as the basis of appointments and promotions. Sub article (2) provides that the values and principles of public service apply to public service in—(a) all State organs in both levels of government; and (b) all State corporations. 23. That **Section 10(1)** of the Public Service (Values and Principles) Act, an Act that was to give effect to article 232 of the Constitution, provides that; ***“The public service, a public institution or an authorised officer shall ensure that public officers are appointed and promoted on the basis of fair competition, promotions and merit.*** ***It is worth noting, that the marginal note in the section reads Fair competition and merit as the basis of appointments and promotions” thus, emphasizing the importance of complying with these constitutional principles whenever making appointments to pubic offices.”*** 1. That **Section 37** of the Public Services Commission Act mandates that a public institution must have an open advertisement, competitive selection and merit-based appointment procedures. 2. The 21st Respondent advertised for the position of its Chief Executive Officer in the MyGov Newspaper. The said advertisement invited all qualified members of the public irrespective of their gender, race and ethnicity to submit their application in line with Article 27 of the Constitution of Kenya which provides for the right of every person to equality before the law. The said Applicants consisted of different genders and were from various ethnic groups and religious beliefs. 3. That the applications received were evaluated and scrutinized in accordance with the law and the 21st Respondent’s internal policies. The professional qualifications, experience, leadership skills and integrity were considered and eight (8) candidates were shortlisted including the 20th Respondent. 4. That the interviews of the eight (8) candidates were conducted fairly and uniformly thus affording all shortlisted candidates’ equal opportunity to present their credentials and capabilities. 5. It is the 21st Respondent’s submissions that, the recruitment process was conducted openly, fairly and in a transparent manner and no applicant was excluded on the basis of their gender, ethnicity and/or religion. 6. That, the allegations on discrimination, opaqueness, secrecy and lack of transparency advanced by the Petitioners were generalized, untrue and unsubstantiated. Further, there is no evidence that rights of the Petitioners were breached or violated or threated to be violated by the recruitment process of the 20th Respondent. The Petition dated 20th May 2024 is therefore unmerited and the Court should proceed to dismiss the same and uphold the lawfulness and validity of the recruitment process of the 20th Respondent. 7. With regards to the 3rd Issue as to whether the president and/or the head of public service usurped their authority; the 21st Respondent contends that its Board of directors is mandated to manage the recruitment process of its Chief Executive Officer by advertising, vetting selecting, interviewing and recommending the most suitable candidate in accordance with the Constitution of Kenya, the Water Act, Public Service (Values and Principles) Act and the Mwongozo Code of Governance. 8. That the 21st Respondent Board of directors carried out the recruitment process of its Chief Executive Officer in accordance with the law and submitted the names of the most suitable candidate, in order of merits, for appointment by the President. In a press release dated 17th May 2024, the Head of Public Service communicated the appointment of the 20th Respondent as the Chief Executive Officer of the 21st Respondent. 9. That, **Article 132 (2) (f)** of the Constitution of Kenya provides that the President shall nominate and, with the approval of the National Assembly, appoint, and may dismiss, in accordance with this Constitution, any other State or public officer whom the Constitution requires or empowers the President to appoint or dismiss. The president is therefore the ultimate appointing authority of state officers including the 20th Respondent. 10. That, **Section 8 (6)** of the National Government Coordination Act provides that the head of public service shall be the Chief of staff to the President and shall perform such other functions as may be assigned by the President. The role of the Head of Public Service in “other functions assigned by the President” as contemplated above include communication of the decisions made by the President. 11. It is the 21st Respondent’s submissions that communication of a decision made by the President does not amount to unlawful usurpation of presidential powers by the Head of Public Service. The Press Release dated 17th May 2024 therefore only played an administrative and informative role of the decision that had already been made by the President and cannot be construed as an act of appointment by the Head of Public Service. 12. Regarding the 4th issue as to whether the statutory instruments establishing the 2nd Respondent remain valid and operation in law, it is the 21st Respondent’s submissions that the State Corporations Act as read together with Legal Notice No. 78 of 1998 established and the existence and authority of the 2nd Respondent. Legal Notice No. 40 of 2021 amended the Legal Notice No. 78 of 1998. That after gazettement of the amendment in Legal Notice No. 40 of 2021, the amendment took effect in accordance with the Statutory Instruments Act and that ensured that the 2nd Respondent’s mandate and statutory functions continue without interruptions. 13. That the Petitioners allege that the instrument establishing the 2nd Respondent had expired by dint of **Section 21** of Statutory Instruments Act which provides that: ***“Subject to subsection (3), a statutory instrument is by virtue of this section revoked on the day which is ten years after the making of the statutory instrument unless-*** ***(a) It is sooner repealed or expires;*** ***(b) A regulation is made exempting it from expiry.”*** 1. The statutory instruments that were in force as of the date of commencement of the Statutory Instruments Act, that is 24th January 2013, remained in force for a period of ten unless repealed pursuant to section 21 of the Act. Before the ten years period could lapse, the Cabinet Secretary for the National Treasury and Economic Planning vide legal notice no 217 of 2022 enacted the Statutory Instruments (Exemption from Expiry) Regulations which extended the validity of the regulations listed therein for a period of the 12th months up to 24th January 2024. 2. The constitutionality of the Finance Act, 2023 was challenged before the High Court in **Okoiti & 6 others v Cabinet Secretary for the National Treasury and Planning & 3 others; Commissioner-General, Kenya Revenue Authority & 3 others** and the Court held that, section 89 of the Finance Act, 2023 seeking to repeal **Section 21** of the Statutory Instruments Act was unconstitutional, null and void. That, subsequently, the Statutory Instruments (Amendment) Bill, 2024, was introduced in the National Assembly and read a first time on 14th February 2024. The said Bill is still pending before the National Assembly. 3. That, the Court of appeal in the case of **Cabinet Secretary for the National Treasury and Planning & 4 Others V Okoiti & 52 Others (2024 eKLR** held that **Section 89** of the Finance Act, 2023 in an appeal seeking the repeal of **Section 21** of the Statutory Instruments Act, stated that the said issue has been caught up by the doctrine of mootness, therefore, they present no live controversies given that it a matter before the National Assembly. 4. The Supreme Court in the case of **National Assembly & Another V Okoiti & 55 Others (2024) eKLR** partially upheld the position taken by the Court of Appeal on grounds that the Statutory Instruments (Amendment) Bill, 2024 pending before the National Assembly will address the grounds given by the High Court and set aside the decision that the entire Finance Act 2023 was unconstitutional. Clause 89 which had deleted **Section 21** of the Statutory Instruments Act was declared constitutional. 5. In view of the Supreme Court findings, it is our humble submissions that the instruments establishing the 1st and 2nd Defendants are 2nd Respondent are still operation and the 2nd Respondent as established by Legal Notice 78 of 1998 has power to recruit its Chief Executive Officer. 6. It is the 21st Respondent’s further submissions that the law presumes continued validity for a statutory instrument until an instrument expressly repeals and/or revokes the said instrument. In this case, there is no competent authority and/or law that has repealed and/or revoked the instrument which establishes the existence of the 1st and 2nd Respondents. 7. In light of the above, the Petitioners’ allegations of invalidity of the statutory instrument establishing the 2nd Respondent and the challenge on the 2nd Respondent’s authority amounts to a misunderstanding of the statutory interpretation principles enshrined in the Constitutional of Kenya and the Interpretation of General Provisions Act and is contrary to the public policy. 8. That the Petitioners submits that the 2nd Respondent did not allow for public participation during the process of recruitment of their Chief Executive Officer/Managing Director. In support of the said submissions, the 1st petitioner relied on the case of British American Tobacco Kenya PLC V cabinet secretary for the ministry of health & 2 Others and Kenya tobacco control alliance & another (interested parties); mastermind tobacco Kenya limited 9affected party (2019) KESC 17 (KLR). 9. The cases relied upon by the Petitioners related to the question of public participation in enactment of a subsidiary legislation that is, Tobacco Control Regulations 2014. The facts and the circumstances of the two cases are different and this Honourable Court cannot be guided /persuaded by the said cases. 10. There is no specific law requiring public participation in the recruitment of the Chief Executive Officer/Managing Director of the 21st Respondent and/or the other Respondents. 11. As to whether the Petition dated 20th May 2024 is merited that, the Court of appeal in the case of **Matemo V Trusted Society of Human Rights Alliance & 5 Others (2013) KECA 445 (KLR)** stated that a constitutional petition must be pleaded with a reasonable degree of precision on that which is complained of, the provision of the constitution infringed and the manner of infringement. 12. The Petitioners challenged the recruitment of the Chief Executive Officer/Managing Director of the 1st, 21st, 23rd and 24th Respondents. A perusal of the documents before the Honorable Court, there is no iota of evidence on the allegations made against the 21st, 23rd and 25th Respondents. 1. It is the 21st Respondent’s submissions that the Petition dated 20th May 2024 lacks precision and the articles allegedly infringed were merely thrown before the Court without specifics on how the Petitioners’ rights have been infringed. In light of the above, the Respondents submit that the Petition dated 20th May 2025 lacks merit. 2. The process of recruitment of the Respondents was lawful, transparent and based on merits. The process was done in accordance with the principles of the constitution and statutes. 3. The Petitioners have the legal and evidential burden to prove the allegation of opaqueness, lack of public participation, discrimination and breach of constitutional right made in the Petition as held in the High Court in the case of **Matendechele V Sunstar Hotel Nairobi (2023) KEHC 1921 (KLR**). The Petitioners failed to discharge the said burden and the Petition dated 20th May 2024 and should be dismissed with costs to the Respondents and the interim orders emanating therefrom discharged unconditionally. . **The 22nd Respondent’s Submission** 1. The 22nd Respondent in its filed written submissions dated 5th August 2024 namely submits on two issues; 2. Whether the 22nd Respondent Appointment as Managing Director of the 23rd Respondent is merited? 3. Whether the recruitment process, and appointment of the 22nd Respondent was constitutional and lawful? **As to whether the 22nd Respondent's appointment is merited?** 1. The 23rd Respondent opened applications for the position of Managing Director as advertised on the 23rd Respondent's Website and MyGov Weekly Review Magazine dated 13 February. Upon noticing the advert, the 22nd Respondent applied for the position on satisfying herself that she meets the required competencies namely; Academic, Experience, and integrity issues applied for the position of Managing Director. The Respondent holds a Bachelor's degree in communication from Daystar University and other training from various institutions, has previously held senior positions in various institutions including Chief Operating Officer at the Star Newspaper, a seasoned media leader with over 17 years of experience in the industry. The Respondent has also been involved in strategic planning, business development, financial management, and operational management. She has also been the Chair of the Media Owners Association, an umbrella body that represents media houses in Kenya and speaks Additionally, she serves on the Supervisory Board of the World Association of Newspapers. Therefore, given her excellent educational background and rich experience in the Media industry, the 22nd Respondent merits as a Managing Director of the 23rd Respondent. 2. On the 2nd issue as **to whether the recruitment process and appointment of the managing director by the 23rd respondent was constitutional and lawful?** 3. On 13th February, 2024, the 23rd Respondent advertised the position of its Managing Director in its Website (https://www.kbcmkg) and MyGov Weekly Review Magazine dated 13th February, 2024. 4. The 22nd Respondent saw the Advert on the 23rd Respondent’s website and applied for the position of Managing Director after satisfying herself that she meets the qualifications, Experience and Competencies as spelt out in the advert. 5. On 19th March 204 the name of the 22nd Respondent and Seven others were published in MyGov Weekly Review and the website, wherein she was invited to attend interview on 26th March 2024 which she attended. 6. On 17th May, 2024, the Respondent was informed that after the rigorous interview on 26th March, 2024 she was successful and therefore appointed as the Managing Director of the 23rd Respondent. 7. The Appointment was done by the Cabinet Secretary in charge of Information, Communication and The Digital Economy in consultation with the 23rd Respondent’s Board after her successful interview. 8. Contrary to what the Petitioners allege, the appointment was done by the Cabinet Secretary in charge of Information, Communication and The Digital Economy in consultations with the Board of the 23rd Respondent. The allegations by the Petitioners that the 22nd Respondent’s appointment was done by the Head of Public Service and/or Government Spokesman are unsubstantiated and no evidence has been put before the Court to proof the said allegations. 9. The procedure for appointment of a Managing Director for the 23rd Respondent is provided for under **Section 5 (1)** of Kenya Broadcasting Corporation Act, Cap 221 Laws of Kenya, and Mwongozo. 10. That **Section 3** of Kenya Broadcasting Corporation Act, Cap 221 Laws of Kenya, provides that: ***5. Managing Director*** ***(1) There shall be a managing director of the Corporation who shall be appointed by the Cabinet Secretary after consultation with the Board whose terms and conditions of service shall be determined by the Cabinet Secretary in the Instruments of appointment or otherwise in writing from time to time: Provided that the first Managing Director shall be appointed by the Cabinet Secretary without the consultation under this subsection.*** 1. That in Mwongozo, Chapter 1.18 states that:- ***1.18: The Board should*** ***a) Appoint and remove CEO*** ***b) Ensure that the CEO is recruited through a competitive process*** ***c) Ensure that the CEO possesses the minimum qualifications and experience*** 1. From the going, it is clear that the recruitment and appointment of the 22nd Respondent was procedurally done and complied with the Constitution, the Law(s) and Mwongozo. 2. In their allegations, the Petitioners have alleged that the process was not in compliance with the Constitution and the Law. The petitioners have failed to point out the violations of the Constitution and the Law except generalization of the violations. Further they have failed to demonstrate how the Violations infringe their rights. Reference is made on the case of **Republic v Nzoia Sugar Company & another ex parte Jack Mukdango Munialo [2017] eKLR** in which the court held; ***96. Whereas the applicant may well be entitled to such information pursuant to Article 35 of the Constitution, where the applicant contends that the actions of the Respondents were unlawful, it behoves the applicant to place before the Court material upon which such a decision ought to be arrived at.*** ***97. In this case I am afraid that there is no satisfactory material upon which this Court can find that the appointment of Mr. Godfrey Sifuna Wanyonyi as Managing Director of Nzoia Sugar Company Ltd was irregular and that the Respondents' actions were unlawful.*** 1. The Petitioners have alleged that the appointment of the 22nd Respondent is based on ethnic discrimination. Nothing has been put before the Court to proof which ethnic community has largely been appointed to the disadvantage of other communities and whether the Respondent herein comes from that largely dominating community to the disadvantage of others. Reliance is placed on the case of **Okiya Omtatah Okoiti Vs The Board, Kenya Pipeline Company Limited & 2 others; John Ngumi (Chairman) & 10 others (Interested Parties) [2020] eKLR** in which the Court held: - ***The petitioner has raised several issues about the appointment of the 11th Interested Party as Managing Director of KPC. He is particularly uncomfortable with the tribe of the Managing Director whom he avers is a Kikuyu and would make the ethnic balance in the KPC Board which he avers is already ethnically imbalanced to be worse.*** ***As I have already pointed out, the petitioner has not submitted evidence of the tribal imbalance except by reference to names. The fact that the petitioner has not proved the allegations made herein however does not mean that the petition is frivolous. The issues he raised, if he had proved them, would have provided sufficient ground for intervention by the court*** 1. None of the shortlisted candidates and those who appeared for the interview has questioned the legality or any unfairness of the recruitment process leading to the Respondent's appointment. Therefore, the petitioners cannot allege any wrong doing which has not been challenged by any of the shortlisted candidates. 2. The 22nd Respondent submits that she was lawfully appointed in compliance with the Constitution, the Statute(s), and Mwongozo. She has a legitimate expectation to serve having been appointed. Under Article 41 of the Constitution 2010, 22nd Respondent parties has a right to fair labour practices including assuming office and executing her duties as the Managing Director of the 3. 23rd Respondent submits that, the Petition dated 20th May, 2024 be dismissed with costs to the 22nd Respondent. **Analysis & Determination;** 1. The Issue of section 21 of the statutory instruments Act is now moot as the same was repealed. 2. The singular issue is whether the Recruitment of CEO’S by 1st 21st 23rd and 25th Respondents process was fair, just and constitutional principles governing public service enshrined under Articles 73(2) and 232 of the Constitution which spell out the values and principles of public service as follows respectively: ***Article 73(2) provides as follows:*** ***(2) The guiding principles of leadership and integrity include –(a)selection on the basis of personal integrity, competence and suitability, or election in a free and fair elections;*** 1. **Article 232** on the other hand provides thus: ***232. (1) The values and principles of public service include—*** ***(a) high standards of professional ethics;*** ***(b) efficient, effective and economic use of resources;*** ***(c) responsive, prompt, effective, impartial and equitable provision of services;*** ***(d) involvement of the people in the process of policy making;*** ***(e) accountability for administrative acts;*** ***(f) transparency and provision to the public of timely, accurate information;*** ***(g) subject to paragraphs (h) and (i), fair competition and merit as the basis of appointments and promotions;*** ***(h) representation of Kenya’s diverse communities; and*** ***(i) affording adequate and equal opportunities for appointment,*** 1. This Court is guided by established precedents **Judicial Service Commission v Mbalu Mutava & another [2015] eKLR** in finding that the 1st 21st, 23rd and 25th Respondents had failed to discharge their evidentiary burden. ***“public bodies cannot not hide the metrics of its decision and simultaneously ask a constitutional court to presume its legality. On the structural duty to give written reasons, the Petitioner relied on, where the Court of Appeal observed:*** ***"The right to be afforded written reasons is intended to ensure transparency and prevent arbitrary decisions. It allows the affected party to inspect the mind of the decision-maker and enables the court to test the rationality and legality of the impugned action."*** 1. Furthermore, in the case of **Dry Associates Limited v Capital Markets Authority [2012] eKLR**, where the Court held: - ***"The constitutionalization of administrative justice under Article 47 means that the traditional common law exceptions to natural justice are severely restricted. A public officer or institution must act in a manner that openly exhibits fairness, and the failure to give reasons where rights are affected constitutes a fatal procedural defect.*** 1. Furthermore, in the case of **Nairobi Law Monthly Company Limited v Kenya Electricity Generating Company & 2 others [2013] eKLR,** the High Court held:- ***"Information held by the State or its organs belongs to the citizens. It does not belong to the officeholders. When a citizen requests information to test the validity of a public process, the State has a high constitutional obligation to disclose it, unless it falls within the narrow, strictly proved exceptions of national security."*** 1. In this instance the 1st Respondent sought refuge under the data protection Act and official secrets Act as a basis of not tabling any single documents to justify the integrity of the process. 2. It is equally the finding of the Court that, the 4th Respondent was conflicted when he participated in the interviews in which he was a candidate in fact, by his act of formally convening the Board meeting to consider the Application is the manifest expression of the conflicted nature of the process. 3. Furthermore, in the case of **Trusted Society of Human Rights Alliance v Attorney General & 2 others [2012] eKLR,** the Court of Appeal held: - ***"The values of integrity, merit, and transparency under Articles 10, 73, and 232 are objective thresholds. A public body cannot merely declare that a candidate is or is not qualified. There must be an auditable record showing the criteria used, the weight attached to those criteria, and the comparative assessment of the candidates to justify the choice made."*** 1. In this instance the public bodies were to justify the recruitment as strictly complying with the constitutional tenets. And it is the finding of this court that the 1st 21st, 23rd and 25th Respondents were unable to present to the court an auditable paper trail vouching for the integrity of the recruitment process. 2. The 1st Respondent conceded that the compliance with chapter six of the constitution was never undertaken during the recruitment. 3. Respondents had the opportunity to demonstrate that the process of recruitment was constitutionally compliant but opted not to do so hiding under statutory instrument. Evidence of the shortlisting criteria and scoring and deliberations on affirmative action would have effortlessly exonerated them from blame. 4. The 22nd Respondent failed to annex any of the documents referred to as exhibits in her affidavit. 5. The Supreme Court in the case of **British American Tobacco Kenya, PLC (formerly British American Tobacco Kenya Limited) v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties);Mastermind Tobacco Kenya Limited (The Affected Party) [2019] eKLR** set out the following guidelines to ascertain whether the principle of public participation was attained: 6. ***As a constitutional principle under Article 10(2) of the Constitution, public participation applies to all aspects of governance.*** 7. ***The public officer and or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation.*** 8. ***The lack of a prescribed legal framework for public participation is no excuse for not conducting public participation; the onus is on the public entity to give effect to this constitutional principle using reasonable means.*** 9. ***Public participation must be real and not illusory. It is not a cosmetic or a public relations act. It is not a mere formality to be undertaken as a matter of course just to ‘fulfill’ a constitutional requirement. There is need for both quantitative and qualitative components in public participation.*** 10. ***Public participation is not an abstract notion; it must be purposive and meaningful.*** 11. ***Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness will be determined on a case to case basis.*** 12. ***Public participation is not necessarily a process consisting of oral hearings, written submissions can also be made. The fact that someone was not heard is not enough to annul the process*** 13. ***Allegation of lack of public participation does not automatically vitiate the process. The allegations must be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation is to be determined on a case to case basis*** 14. ***Components of meaningful public participation include the following:*** 15. ***clarity of the subject matter for the public to understand;*** 16. ***structures and processes (medium of engagement) of participation that are clear and simple;*** 17. ***opportunity for balanced influence from the public in general;*** 18. ***commitment to the process;*** 19. ***inclusive and effective representation;*** 20. ***integrity and transparency of the process;*** 21. ***capacity to engage on the part of the public, including that the public must be first sensitized on the subject matter.*** 22. In this instance where the 1st 2nd, 21st, 23rd and 25th Respondents were upon allegations on failure to adhere to the constitutional standards of recruitment being made were expected to place their best feet forward laying bare their assertions and proving the same by availing to court documentary proof that the Respective boards undertook the recruitment in line with the law which they failed to demonstrate. 23. Public participation is not limited to public advertisements of vacancies, shortlist and Leadership and Integrity requirements for all public and state officers during recruitment, the candidates must prove their suitability and competence by obtaining mandatory clearance certificates from statutory bodies before employment or appointment and not after appointed as alluded to by the petitioners. 24. The Respondents boards had the obligation to demonstrate that they independently recruited their CEO’s as they legally mandated to maintain accurate records and allow public access under the Constitution of Kenya, 2010 which record have deliberately been kept away from this court. 25. As for the requirement on consensus/concurrence in such recruitment by the 13th Respondent, the same is not anchored in law as well as the final notification of successful candidates and the respective boards and/ appointing authority were legally mandated to make the final decision. 26. This court takes a dim view of a wholesale approach in joining in respective board members in their individual capacity finds that no case has been proven against the 5th - 12th Respondents and the 16th to the 19th Respondent in their individual capacities. 27. The Court finds partial merit to the Petition dated 20th May 2024 with the following resultant orders; 28. ***A Declaration is hereby made that, the Announcement, shortlisting, interviewing and eventual appointment of Chief Executive Officer or any other post of the 1st 21st, 23rd and 25th Respondents must at all material time meet the requirements of the National Values and principles of Governance and Public Service on appointments in Public Service provided at inter alia Articles 2, 10, 27, 73 and 232 of the constitution and relevant laws.*** 29. ***A Declaration is hereby made that, the purported announcement and/or appointment and/or gazettement of the 4th Respondent and/or any person as Chief executive officer of the 1st Respondent-Moi Teaching and Referral Hospital by the Respondents and/or any other person as communicated by the press release and/or gazette notice and/or any letter and/or any document dated 17/5/2024 or any other date without constitutional, statutory and all enabling provisions of the law inter alia article1,3,10,19,20, 27,28,41,43,47,73,75,129,131,132,135,154 AND 232,233,248,249, and 232 of the constitution and other relevant laws is unconstitutional and therefore, invalid, null and void ab initio.*** 30. ***A Declaration is hereby made that, the purported recruitment process, action and/or appointment as Chief executive officer of the 1st Respondent Moi Teaching and Referral Hospital without constitutional and statutory provisions is contrary to article 1,2,3,10, 27,28,35,41,43,54,55,56,73,75,94,201 and 232 of the constitution (2010) and other relevant laws is unconstitutional and therefore, invalid, null and void ab initio.*** 31. ***A Declaration is hereby made that, the purported requirement concurrence of their appointment with the 13th Respondent, chief of staff head of the public service, Mr. Felix K. Koskei, and/or the president and/or any other person is usurpation of powers of the respective state corporations’ boards has no basis in law hence its illegal and unconstitutional, Null and Void.*** 32. ***A Declaration is hereby made that, there is no requirement by boards of state corporations requiring them concurrence of their appointment with the 13th Respondent, chief of staff head of the public service, Mr. Felix K.Koskei or any other office/officer.*** 33. ***A Declaration is hereby made that, the Respondents or any person’s actions and/or omissions done and/or omitted during the period when Statutory Instruments for the respondents had expired/not valid/not in force has no force in law hence Null and Void.*** 34. ***A Declaration is hereby made that, the 14th Respondent (public service commission) and 15th Respondent the honourable Attorney General failed to advise the Respondents of the correct way of handling state corporations’ appointments.*** 35. ***The court is pleased to issue an Order of Judicial Review by way of CERTIORARI, quashing the Respondent’s press release and or gazette notice and/or any document dated 17/5/2024 or any other date produced for the purpose of the purported appointment of any person as Chief executive officer of the 1st Respondent-Moi Teaching and Referral Hospital.*** 36. ***The court is pleased to issue an Order of Judicial Review by way of CERTIORARI Quashing the appointment of Dr. Philip Kiptanui Kirwa 4th Respondent herein as the 1st Respondent hospital chief executive officer, CEO.*** 37. ***An Order of Judicial Review by way of PROHIBITION, is hereby made prohibiting the Respondents and/or interested party and /or any other person from performing and/or in any way acting in any way or manner as Chief executive officer of the 1st Respondent-Moi Teaching and Referral Hospital Principal.*** 38. ***An Order of Judicial Review by way of MANDAMUS, is hereby made compelling the respondents herein to initiate a fresh proper/legal process of filling the positions of Chief executive officer of the 1st Respondent-Moi Teaching and Referral Hospital and other institutions as contemplated in the statutory instrument, constitution and all enabling provisions of the law.*** 39. ***The court is pleased to issue an Order of Judicial Review by way of CERTIORARI, quashing the Respondent’s press release and or gazette notice and/or any document dated 17/5/2024 or any other date on appointment of 20Th, 22nd and 24Th Respondents as Chief Executive Officer (CEO) and/or managing directors of 21St, 23rd and 25Th state corporations/entities respectively;*** 40. ***An Order of Judicial Review by way of MANDAMUS, compelling the Respondents herein to initiate a fresh proper/legal process of filling the positions of Chief executive officers/managing directors of the 21St, 23rd and 25Th state corporations/entities within the next 60 days;*** 41. ***Parties shall bear their own costs.*** Orders accordingly **Dated, signed and delivered Virtually on Teams Platform** **this 6th day of July 2026.** **Mohochi S.M.** **JUDGE**