Katiba Institute & 2 others v Attorney General (On behalf of the President of the Republic of Kenya) & 53 others

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT THIKA** **CONSTITUTIONAL PETITION NO. E513 OF 2022** **IN THE MATTER OF: VIOLATIONS OF ARTICLES 1(3), 2(1), 3(1) & (2), 10(1) & (2), 19(1) & (2), 20(1), 21(1), (2) & (3), 22, 27(6) & (7), 35, 93(1) & (4), 118(1), 124(4), 129(1), 132(2), 155(1), 233 AND 234 OF THE CONSTITUTION** **AND** **IN THE MATTER OF: VIOLATIONS OF SECTIONS 4 AND 47 OF THE PUBLIC SERVICE COMMISSION ACT** **AND** **IN THE MATTER OF: VIOLATIONS OF SECTION 7 OF THE PUBLIC APPOINTMENTS (PARLIAMENTARY APPROVAL) ACT** **AND** **IN THE MATTER OF: VIOLATIONS OF SECTION 5 OF THE ACCESS TO INFORMATION ACT** **AND** **IN THE MATTER OF: VIOLATIONS OF SECTION 8 OF PUBLIC SERVICE VALUES AND PRINCIPALS ACT** **BETWEEN** **KATIBA INSTITUTE……..…….….…..………….…….................1ST PETITIONER** **KENYA HUMAN RIGHTS COMMISSION…...……………………2ND PETITIONER** **COMMUNITY ADVOCACY AND** **AWARENESS (CRAWN) TRUST……………………....................3RD PETITIONER** **VERSUS** **ATTORNEY GENERAL (ON BEHALF OF THE** **PRESIDENT OF THE REPUBLIC OF KENYA).......................1ST RESPONDENT** **PUBLIC SERVICE COMMISSION………..…...………………..2ND RESPONDENT** **NATIONAL ASSEMBLY…………………….…..…………………3RD RESPONDENT** **AND** **ABDI DUBAT FIDHOW…………………………………..1ST INTERESTED PARTY** **ABRAHAM K. SING’OEI………….…...…………………2ND INTERESTED PARTY** **ABUBAKAR HASSAN ABUBAKAR……..……………….3RD INTERESTED PARTY** **ALEX KAMAU WACHIRA……………….…………….....4TH INTERESTED PARTY** **ALFRED OMBUDO K’OMBUDO……...……………….…5TH INTERESTED PARTY** **AMOS KENNEDY N. GATHECHA………………………..6TH INTERESTED PARTY** **AUBERIA CHEPKIRUI RONO……....………………..…7TH INTERESTED PARTY** **BEATRICE MUGANDA INYANGALA……………………8TH INTERESTED PARTY** **BETSY MUTHONI NJAGI…………………………………9TH INTERESTED PARTY** **CAROLINE NYAWIRA MURAGE………………………10TH INTERESTED PARTY** **CHARLES MWANGI HINGA…………...………………11TH INTERESTED PARTY** **CHRIS KIPROTICH KIPTOO………...………………..12TH INTERESTED PARTY** **EDWARD NAMISIKO WASWA………...……………..13TH INTERESTED PARTY** **ELIJAH GITUMBU MWANGI………...………………..14TH INTERESTED PARTY** **EPHANTUS KIMOTHO KIMANI……………………….15TH INTERESTED PARTY** **ESTHER NGERO MUMBI………….…………………....16TH INTERESTED PARTY** **ESTHER THAARA MUORIA…………..………………...17TH INTERESTED PARTY** **EUSEBIUS JUMA MUKHWANA………..……………18TH INTERESTED PARTY** **FESTUS KIPKOECH NGENO…………………………19TH INTERESTED PARTY** **GENERALI NIXON KORIR……………………..……20TH INTERESTED PARTY** **GEOFRREY EYANAE KAITUKO..……….…………..21ST INTERESTED PARTY** **GITONGA MUGAMBI MUKETHA…………………..22ND INTERESTED PARTY** **HARRY KIMUTAI KACHUWAI……...……………..23RD INTERESTED PARTY** **IDRIS SALIM DOKOTA………….…………………..24TH INTERESTED PARTY** **ISMAEL MAALIM MADEY..………….………………25TH INTERESTED PARTY** **JAMES MUHATI BUYEKANE ………..……………..26TH INTERESTED PARTY** **JOEL ARUMONYANG’………………...…………..…27TH INTERESTED PARTY** **JOHN KIPCHUMBA TANUI………..……………….28TH INTERESTED PARTY** **JOHN LEKAKENY OLOLTUAA..…….….…………..29TH INTERESTED PARTY** **JONATHAN MWANGANGI MUEKE…..……………30TH INTERESTED PARTY** **JOSEPH MOGOSI MOTARI…………...…………….31ST INTERESTED PARTY** **JOSEPH MUNGAI MBUGUA…………………………32ND INTERESTED PARTY** **JOSEPHINE NJERI MBURU..…………………….…33RD INTERESTED PARTY** **JULIUS KIBET BITOK ………..…………………..….34TH INTERESTED PARTY** **JULIUS KIPLANGAT KORIR…………...............…35TH INTERESTED PARTY** **MOHAMED DAGHAR ABDULKARIM……………….36TH INTERESTED PARTY** **MOHAMED LIBAN..…………………...……………...37TH INTERESTED PARTY** **PATRICK KARIUKI MARIRU…………..….……….38TH INTERESTED PARTY** **PATRICK KIBURI KILEMI…….............………….39TH INTERESTED PARTY** **PAUL RONOH………….………………..…………….40TH INTERESTED PARTY** **PHILIP KELLO HARSAMA..…………..….…………41ST INTERESTED PARTY** **RAYMOND V. OJWANG OMOLLO…………………42ND INTERESTED PARTY** **RICHARD BELIO KIPSANG…………...…………..43RD INTERESTED PARTY** **ROSELINE KATHURE NJOGU……….....…………44TH INTERESTED PARTY** **SHADRACK MWANGOLO MWADIME……………45TH INTERESTED PARTY** **SUSAN AUMA MANGENI……………….……….46TH INTERESTED PARTY** **SYLVIA NASEYA MUHORO………….………....47TH INTERESTED PARTY** **TERESIA MBAIKA MALOKWE………………….48TH INTERESTED PARTY** **TUM PETER KIPLAGAT..………..……….……..49TH INTERESTED PARTY** **UMMI MOHAMMED BASHIR………………….50TH INTERESTED PARTY** **VERONICA MUENI NDUVA………….....……..51ST INTERESTED PARTY** **R U L I N G** **Brief Facts** 1. The petition dated 22nd November 2022 is supported by the petitioners’ affidavit of even date. 2. The petition challenges the nomination and appointment process of the Principal Secretaries for failing to meet the two thirds-gender rule. 3. The matter was scheduled for delivery of judgment but on careful assessment, the court came across unresolved jurisdictional tension over the matter with the ELRC Court which is/was handling identical matters whose decisions went to the Court of Appeal after it asserted jurisdiction over the same. By the time of this ruling the jurisdiction tension had not been resolved by the Court of Appeal. This Court thus decided deliver a ruling instead of a judgment with a view to preserving the matter instead of conclusively determining it. **The Petitioners’ Case** 1. The petitioners aver that on 7th September 2022, the Public Service Commission advertised Principal Secretary positions and published a shortlist of **477** applicants on 7th October 2022 but the next day revoked that list and replaced it with a list of **585 shortlisted applicants**. The Public Service Commission claimed that it was necessary to revise the list to ***‘include gender, marginalised and minority groups, the youth and persons living with disability’*** so that they also be considered. The Public Service Commission published an interview schedule for the 585 shortlisted candidates and conducted the interviews between 12th and 22nd October, 2022. 1. After completing the interviews, the Public Service Commission sent a list of 250 candidates to the President for consideration as widely reported in the media. However, the Public Service Commission did not publish the list in the mainstream media or make it accessible on its website. 2. On 2nd November 2022, the Executive Office of the President published the president’s list of 51 nominees for Principal Secretary positions. Of the 51 nominees, only 12 were women. There were 39 men resulting hence the nomination list was 76% male and 24% female. 3. The petitioners further disclosed that the Law Society of Kenya filed a petition against the respondents in the Employment and Labour Relations Court, being ELRC PET E192 of 2022. On 14th November the ELRC Court issued an order restraining the National Assembly from considering the nominees pending a hearing on 21st November 2022 and on 15th November, the Attorney General filed a notice of appeal against the order. 4. The petitioners argue that the president violated Article 27(8) by selecting nominees for Principal Secretary positions that did not comply with the requirement that no more than two thirds of the members of appointive bodies be of the same gender. 5. The further avers that the violation of Article 27(9) is a concomitant violation of Articles 1(3), 10(1) & (2), 19(1), (2) & (3), 20(1), 21(1), (2) & (3), 129(1) and 131(a) & (e). Further the president violated Article 27(6) by failing to redress historical disadvantages suffered by women when selecting its nominees for Principal Secretary positions. As the National Assembly has initiated the approval process, there is a risk that it will violate **Articles 1(3)(a), 94(1) and 94(4) of the Constitution** and **Section 7 of the Parliamentary Appointments (Parliamentary Approval) Act**. The Speaker of the National Assembly violated Article 27(8) by accepting the notification from the president and beginning the approval process for the nominees even though the list of nominees did not comply with the two thirds gender principle. The Public Service Commission violated **Article 35(3) of the Constitution** and **Section 5(1) of the Access to Information Act** by failing to publish and publicise the names of the 250 individuals forwarded to the president as potential nominees for the Principal Secretary positions. The public Service Commission violated the values and principles of governance, including the values and principles of transparency and accountability by failing to disclose the 250 candidates sent to the president. **The 1st Respondent’s Case** 1. The 1st respondent states that the petitioners have not demonstrated before the court how it has violated their constitutional rights. Further, the 1st respondent contends that the question of the appointment of the 51 interested parties as Principal Secretaries is the subject of an ongoing appeal at the Court of Appeal **in Nairobi vide Civil Appeal No. E722 of 2023 Dr. Magare Gikenyi vs AG & Others** seeking to challenge the ruling of the Employment & Labour Relations Court in Nairobi ELRC Petition E207 of 2022 Dr. Magare Gikenyi vs AG & Others. That notwithstanding, the Employment and Labour Relations Court in Nairobi ELRC Petition No. E207 of 2022 Dr. Magare Gikenyi vs AG & Others, determined the question of jurisdiction on matters touching on the appointment of Principal Secretaries where the court held that the ELRC has jurisdiction to hear the instant petition. 1. The 1st respondent argues that the issues raised including the alleged failure to comply with the two thirds gender rule are *sub judice* as the same were canvassed in the consolidated ELRC Petition E207 of 2022. Thus, it would be irregular and an abuse of the judicial system for the instant petition to proceed when the issues raised in it are currently up for determination before the Court of Appeal. 2. The 1st respondent contends that the petition is moot and has been overtaken by events as the President, pursuant to **Article 155(3)** and **(4) of the Constitution**, on 20th March 2025 as evidenced in the Executive Order No. 1 of 2025, reorganized and restricted the National Executive by nominating a number of persons for appointment to the ranks of Principal Secretaries and reshuffling the Principal Secretaries to 57 out of which seventeen (17) are women translating to 29.82% female representatives effectively meeting the 30% threshold, thus adhering to the two thirds gender principle. 3. The 1st respondent argues that under **Article 155(1) of the Constitution**, the office of the Principal Secretary is established as an office in the public service. Therefore, by dint of **Article 155(1)** and **(2) of the Constitution**, the two thirds gender parity principle should be considered in the context of either the public service taken as a whole or a given state department in particular. Thus, the burden is upon the petitioners to demonstrate that the composition of the entire public service or a given state department does not meet the two thirds gender principle, which burden has not been discharged in the instant petition. **The 2nd Respondent’s Case** 1. Remmy N. Mulati MBS the Acting Commission Secretary/CEO of the Public Service Commission swore the affidavit on behalf of the 2nd respondent and states that in pursuant to **Articles 10, 232 and 233(1) of the Constitution**, **Section 47 of the Public Service Commission Act** and **Regulation 26 of the Public Service Commission Regulations 2020**, the commission invited applications from suitable and qualified members of the public to submit their applications for consideration for recommendation for appointment as Principal Secretary vide Gazette Notice No. 10536 Vol. CXXIV-No. 180 of 7th September 2022. The said advertisement closed on 20th September 2022. However, due to the public interest attached to the position of Principal Secretary, on 21st September 2022, the commission extended the advert for a further 7 days. 2. On 6th October 2022, the commission issued a press statement regarding the selection process following the conclusion of the shortlisting process. On 7th October 2022, the commission published in the print and electronic media, the names of the 477 shortlisted candidates for the position of Principal Secretary. In the same publication, members of the public were invited to avail any credible information of interest relating to any of the shortlisted candidates to the Secretary/CEO of the Commission or online through psinterviews22@publicservice.go.ke so as to be received on or before 11th October 2022. On 8th October 2022, the commission reviewed the number of shortlisted candidates in order to deepen inclusivity with regard to gender, the marginalised and minority groups, the youth and persons living with disability in accordance with **Article 232(1)(h) of the Constitution** and consequently cancelled the earlier shortlist published on 7th October 2022. 1. The deponent reveals that on 8th October 2022, the commission published in print and electronic media, the names of 585 reviewed shortlisted candidates for the position of Principal Secretary and members of the public were invited to avail any credible information of interest relating to any of the shortlisted candidates to the Secretary/CEO of the Commission or online through psinterviews22@publicservice.go.ke so as to be received on or before 11th October 2022. After the publication of the reviewed list of the shortlisted candidates, the commission scheduled the interview which took place between 12th and 22nd October 2022. After the interview the commission submitted to His Excellency the President a list of the recommended nominees for appointment as Principal Secretaries paying attention to inclusivity in terms of gender, the diverse communities, persons with disabilities and the youth. The deponent argues that the commission duly discharged its constitutional and statutory duty as required under **Article 155(3)(a) of the Constitution** as read with **Section 47 of the PSC Act** and **Regulation 26 of the PSC Regulations**. Thus, there is no proper justification for the process to be initiated a fresh in the manner sought by the petitioners. 2. The deponent avers that the instant petition is *res judicata* because a similar petition had been filed at Nairobi being **ELRC Petition No. E207 of 2022 Dr. Magare Gikenyi J. Benjamin vs The Hon. Attorney General & 54 Others which was struck out on 27th April 2023 by Byram Ongaya J**. Being aggrieved with the said ruling, Dr. Magare moved the Court of Appeal at Nairobi vide Civil Appeal No. E722 of 2023 which was heard on 7th May 2024 and a judgment reserved for 26th July 2024. 3. The petition was disposed of by way of written submissions. **Petitioners’ Submissions** 1. The petitioners identified three issues for determination as follows: whether the respondents, in considering and appointing the interested parties as principal secretaries violated **Articles 27(6) and 27(8) of the Constitution**, whether the respondents in appointing the interested parties as principal secretaries violated **Articles 10** and **232 of the Constitution** that establishes a value based society and whether the respondents, in appointing the interested parties as principal secretaries violated **Article 35 of the Constitution** and the Access to Information Act. 2. The petitioners maintained that **Article 20(3) of the Constitution** requires that when applying a provision of the Bill of Rights, a court shall adopt an interpretation favouring the enforcement of a right or fundamental freedom. Further **Article 259(1)** requires that the Constitution be interpreted to promote its purposes, values and principles and advance the rule of law, human rights and fundamental freedoms in the Bill of Rights. Reliance was placed in the case of **In the Matter of the Kenya National Commission on Human Rights, Supreme Court Advisory Opinion Reference No. 1 of 2012; [2014] eKLR**, where the court held:- **But what is meant by a holistic interpretation of the Constitution? It must mean interpreting the Constitution in context. It is a contextual analysis of a constitutional provision, reading it alongside and against other provisions so as to maintain a rational explication of what the constitution must be taken to mean in the light of its history, of the issues in dispute and of the prevailing circumstances.** 1. The petitioners further affirmed that the values in the constitution have been described as the intestinal fluid which nourishes the Bill of Rights and the constitution, which therefore imposes an obligation on courts to avoid a structural minimalist approach, but it should in the performance of its judicial function, espouse the value system in the constitution. Reliance was placed in the case of **George Bala vs Attorney General [2017] eKLR** where the court echoed the same view that the interpretation and application of the constitution by the judiciary must therefore not be a mechanical one but must be guided by the spirit and the soul of the constitution itself as ingrained in the national values and principles of governance espoused in the preamble and among other things Article 10 of the Constitution. They further called for a purposive interpretation that promotes the constitution’s purposes, values and aspirations in considering the instant dispute. 2. On the issue of violation of the gender equality principle, the petitioners cited **Articles 27(6) & (8)** and **232 of the Constitution** and argued that the said provisions were inserted in the constitution to promote equality and affirmative action after the Kenyan people recognised the lack of representation of women in both elective and appointive bodies. They further argued that the president’s nomination and parliament’s inability to correct his short-sighted decision tacitly reinforce the insidious stereotypes that impede women’s access to political office in Kenya, stereotypes that are damaging to the psyche of Kenyan women and their conceptions of identity and personhood. To buttress that point, reliance was placed on the case of **Marilyn Muthoni Kamuru & Others vs Attorney General & Another [2016] eKLR** where the court held:- **It is in that spirit that Article 27(8) imposes upon the State the obligation to redress gender disadvantage by enacting laws that may be needed and also undertaking other measures including affirmative action that would ensure women are needed to redress any inequality that may manifest.** **Article 27(8) enjoins the State to be proactive and that may be achieved not just through legislation but through appointments as the Article itself dictates.** **With that understanding in mind, and having stated that the cabinet is a State organ within the context and meaning of Article 260 of the Constitution, it follows that Article 27(8) of the Constitution is applicable to the cabinet.** **I would therefore agree that Article 27(8), especially as far as the appointive positions are concerned, should be realised immediately in contrary to the submissions of Mr. Njoroge.** **The right to human dignity is the foundation of all other rights and together with the right to life, it forms the basis for the enjoyment of all other rights. Put differently, if a person enjoys the other rights in the Bill of Rights, the right to human dignity will automatically be promoted and protected while it will be violated if the other rights are violated. In the circumstances, and as a consequence of the violation of Article 27(8) of the Constitution, the petitioners’ right to dignity has been violated.** 1. Further reliance was placed in the case of **Centre for Rights Education & Awareness (CREW) & 8 Others vs Attorney General & Another Petition 207 & 208 of 2012** consolidated with **JR. Misc Application No. 2012** where the court stated:- **In matters of appointment or election to office in order to achieve gender equality and equity, there is no qualification of the state’s obligation as there is no outlay of resources required and which is shown to limit or inhibit the realisation of this right. This is particularly so in a scenario such as the one before the court where, on the respondents' own admission, there are at least another 16 female District Commissioners with the requisite qualifications to meet the criteria that the respondents had set for appointment as County Commissioners. There is really no justification or explanation for the president’s failure to observe the requirements of Article 27(8). The appointments or deployments whatever term is used, assuming that the president had power to make them, fail the test of constitutionality by disregarding the national values and principles set out at Article 10(b) and the principle contained in Article 27(8) of the Constitution.** 1. Contrary to the above caselaw, the petitioners argued that of the 51 principal secretaries’ nominees selected by the president, only 12 were women and 39 men, resulting in the nomination list that is 76% male and 24% female. Thus the failure of the National Assembly to decline to consider and approve the nominees who did not meet the two thirds gender rule is in total disregard of the constitution. Further, the Speaker of the National Assembly violated Article 27(8) by accepting the notification from the president and beginning the approval process for the nominees even though the list did not comply with the two thirds gender principle. The speaker’s violation of Article 27(8) is a concomitant violation of **Articles** **1(3), 10(1) & (2), 19(1), (2) & (3), 20(1), 21(1), (2) & (3)** and **94(4) of the Constitution**. The president violated Article 27(8) by selecting nominees for principal secretary positions that did not comply with the two thirds gender the requirement and Article 27(6) by failing to redress historical disadvantages suffered by women when selecting his nominees for the said positions. The violation of Article 27(6) and (8) is a concomitant violation of **Articles 1(3), 10(1) & (2), 19(1), (2) & (3), 20(1), 21(1), (2) & (3), 129(1)** and **131(a) and (e) of the Constitution.** 2. The petitioners submitted that the objective normative value-based system established in the constitution was not an accident but was Kenyan’s reaction to the unchecked powers vested in the executive branch. They envisioned a society founded on values and principles as seen in Article 10 of the Constitution. Reliance was placed in the case of **Trusted Society of Human** **Rights Alliance vs The Attorney General & 2 Others Petition No. 229 of 2012** where the court held:- **The people of Kenya did not intend that these provisions be merely suggestions, superfluous or ornamental; they did not intend to include these provisions as lofty aspirations. Kenyans intended that the said provisions should have substantive bite and that they will be enforced and implemented. They desired these values and principles be put into practice. It follows, therefore, that all state organs, state officers, public officers and all persons whenever any of them applies or interprets the constitution, enacts, applies or intercepts any laws or makes or implements public policy decisions must refer to Article 10 of the Constitution.** 1. By entrenching the values of transparency and accountability in the constitution, Kenyans wanted to move from a society founded on secrecy to one that is open and accountable. To buttress that point, reliance was placed in the decision of **Samura Engineering Ltd & Others vs Kenya Revenue Authority Nairobi Petition No. 54 of 2011** where Majanja J noted that “***by placing the values of rule of law, good governance, transparency and accountability at the centre of the constitution, we must now embrace the culture of justification which requires that every official act must find its locus in law and underpinning in the constitution***.” 2. The petitioners submitted that the values must guide the state and its state organs even when making public appointments or recruitment. Reliance was placed in the case of **Community Advocacy and Awareness Trust and Others vs Attorney General Nairobi Petition No. 243 of 2011** where the court held:- **27 August 2010 ushered in a new regime of appointments to public office. Whereas the past was characterized by open corruption, tribalism, nepotism, favouritism, scrapping the barrel and political patronage, the new dispensation requires a break from the past. The constitution signifies the end of the ‘jobs for the boys’ era. Article 10 sets out the values that must be infused in every decision making process including that of making appointments.** 1. Further reliance was placed on the case of **Consumer Federation of Kenya (COFEK) vs Attorney General & 2 Others [2012] eKLR** where the court held:- **These values and principles provide a foundation upon which Kenyans have determined that our democratic state shall be built; they are the intestinal fluid which nourishes the bill of rights and the constitution. Thus when making appointments to public office, every selecting, appointing and nominating authority must take into account these values and principles.** 1. The petitioners argued that the respondents violated **Article 10 of the Constitution** by the Public Service Commission failing to publish and publicise the names of the 250 individuals forwarded to the president as potential nominees; failure to publish important information about the nation and failure to publish the names of those recommended to the president as potential nominees for the principal secretary positions. Similarly, the Public Service Commission violated **Section 4 of the Public Service Commission Act** and **Section 8 of the Public Service Values and Principals Act** which addresses the requirement that public officers be transparent and provide information timely and accurately. 2. On the final issue, the petitioners cited **Article 35 of the Constitution,** **Section 5(1) of the Access to Information Act** and the case of **Mercy Nyawade vs Banking Fraud Investigations Department & 2 Others** **[2017] eKLR** and submitted that Article 35 must not be constrained by narrow interpretation. The court rendered itself:- **In line with the dictates of the Constitution, this court will reject the narrow, literal reading of the above provisions and opt for a construction that promotes wider access to information.** 1. The petitioners relied on the case of **President of the Republic of South Africa vs M & G Media** (no citation given) where the court recognised the right to access information is necessary for the realization of other rights. It held:- **The right of access to information is also crucial to the realization of other rights in the Bill of Rights. The right to receive or impart information or ideas, for example, is dependent on it. In a democratic society such as our own, the effective exercise of the right to vote also depends on the right of access to information.** 1. Further reliance was placed in the case of **Brummer vs Minister for Social Development & Others CCT 25/09 [2009] ZACC 21;2009** where the court stated:- **Apart from this, access to information is fundamental to the realization of the rights guaranteed in the Bill of Rights. For example, access to information is crucial to the right to freedom of expression which includes** **freedom of the press and other media and freedom to receive or impart information or ideas.** 1. The petitioners submitted that the right to access information encompasses a duty on state bodies to proactively disclose information. Information such as the one in the instant petition was necessary for the public to know the people recommended for appointment, people who were going to occupy public offices held in trust by the people. Further, the information was necessary for the people to ensure that those who had been recommended for appointment owe their appointment to their qualifications rather than cronyism, which more often than not leads to undesired practices such a corruption. Reliance was placed in the case of **Nairobi Law Monthly Company Limited vs Kenya Electricity Generating Company & 2 Others [2013] eKLR** where the court stated:- **The second consideration to bear in mind is that the right to information implies the entitlement by the citizen to information, but it also imposes a duty on the State with regard to provision of information. Thus the State has a duty not only to proactively publish information in the public interest. This I believe is the import of Article 35(3) of the Constitution which imposes an obligation on the State to publish and publicise any important information affecting the nation.** 1. The petitioners submitted that the Public Service Commission violated **Article 35 of the Constitution**, **Section 5 of the Access to Information Act**, **Section 4 of the Public Service Commission Act** and **Section 8 of the Public Service Values and Principals Act** by failing to publish and publicise the names of the 250 individuals forwarded to the president as potential nominees for the principal secretary positions. 2. On the issue of relief to be granted, the petitioners argued that an appropriate remedy must mean an effective remedy. Reliance was placed in the case of **Fose vs Minister of Safety and Security** (no citation given) where the court held:- **In our context, an appropriate remedy must mean an effective remedy, for without effective remedies for breach, the values underlying the rights entrenched in the constitution cannot properly be upheld or enhanced. Particularly in a country where so few have the means to enforce their legal rights through courts, it is essential that on those occasions when the legal process does establish that an infringement of an entrenched right has occurred, it be effectively vindicated. The courts have a particular responsibility in this regard and are obliged to forge new tools and shape innovative remedies if needs be, to achieve this goal.** 1. The petitioners further submitted that the court is not bound by the remedies requested in the petition nor the remedies provided under Article 23 of the Constitution. The court has the power to formulate a new remedy, a position endorsed by the Supreme Court when it granted a structural interdict in **Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 others Petition No. 14, 14A, 14B & 14C of 2014 Mitu-Bell Welfare Society vs Kenya Airports Authority & 2 Others; Initiative for Strategic Litigation in Africa (Amicus Curiae) (Petition 3 of 2018) [2019] KESC 34 (KLR)**. **The 1st Respondent’s Submissions** 1. The 1st respondent identified four issues for determination as follows; whether the petition is caught by the doctrine of *sub judice*; whether this Honourable Court has jurisdiction to determine the subject matter of the petition; whether the petition is moot and what is the legal propriety of the petition in light of the provisions of **Article 155(1) and (2) of the Constitution**. On the first issue, the 1st respondent submitted that the issues raised in the current petition was a live issue in Nairobi ELRC Petition E207 of 2022 filed in public interest and the judgment in that petition is pending appeal before the Court of Appeal in Nairobi Civil Appeal No. E722 of 2023 Thus, the present petition is caught by the doctrine of *sub judice* pursuant to **Section 6 of the Civil Procedure Act** and must down its tools. Reliance was placed in the case of **Kenya National Commission on Human Rights vs Attorney General; Independent** **Electoral & Boundaries Commission & 16 Others (Interested Parties) [2020] eKLR** where the court held: **The purpose of the sub judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res sub judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.** 1. The 1st respondent argued that on account of having established that the instant petition is *sub judice*, thereby amounting to abuse of the court process, the right remedy in the circumstances is a dismissal order. Reliance was placed in the case of **Gathariki vs Cheko Plot Owners Association & Another (Civil Appeal 116 of 2019) [2025] KECA 313 (KLR) (21 February 2025) (Judgment)** where the court held:- **Even though Section 6 of the Civil Procedure Act provides for stay of subsequent suits, the learned judge dismissed the suit for being an abuse of court process. The question is whether the learned judge erred in so finding. We do not think so. The practice of litigants filing parallel proceedings seeking similar or substantially similar orders arising from the same set of facts and circumstances should be abhorred for obvious reasons. One consequence of the said practice is that it amounts to abuse of court process. As was held by the High Court in Graham Rioba Sagwe & Others vs Fina Bank Limited & 3 Others [2017] eKLR the court has inherent jurisdiction to protect itself from abuse or to see that its process is not abused. The Black’s Law Dictionary, 10th Edition defines abuse of process as inter alia a wrongful process of law. The situations that may give rise to abuse of court process are inexhaustive. It involves situations where the process of court has not been resorted to fairly, properly, honestly to the detriment of the other party. The High Court in Graham Rioba Sagwe & Others vs Fina Bank Limited & 3 Others [2017] eKLR provided the following examples which constitute abuse of the court process:** 1. **Instituting a multiplicity of actions on the same subject matter against the same opponent, on the same issues or multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action.** 2. **Instituting different actions between the same parties simultaneously in different courts even though on different grounds.** 3. **Where two similar processes are used in respect of the exercise of the same right.** 4. **Where an application for adjournment is sought by a party to an action to bring another application to court for leave to raise issue of fact already decided by the court below.** 5. **Where there is no iota of law supporting a court process or where it is premised on recklessness. The abuse in this instance lies in the inconvenience and inequalities involved in the aims and purposes of the action.** 6. **Where a party has adopted the system of forum shopping in the enforcement of a conceived right.** 7. **Where an appellant files an application at the trial court in respect of a matter which is already subject of an earlier application by the respondent at the Court of Appeal.** 8. **Where two actions are commenced, the second asking for a relief which may have been obtained in the first.** **Abuse of court process creates a scenario where a party is pursuing the same matter in two court processes. A litigant has no right to pursue pari pasua two processes, which will have the same effect in two courts at the same time with a view of obtaining victory in one of the process or in both. In the above High Court decision, it was stated that litigation is not a game of chess where players outsmart themselves by dexterity of purpose and traps. On the contrary, litigation is a contest by judicial process where the parties place on the table of justice their different position clearly, plainly and without tricks. Pursuing two processes at the same time constitutes and amounts to abuse of court/legal process.** **Thus the multiplicity of actions on the same matter between the same parties even where there exists a right to bring the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right rather than exercise of right per se. The abuse consists in the intention, purpose and aim of exercising the right to harass, irritate and annoy the adversary and interface with the administration of justice. In our view, the learned judge correctly termed the filing of two substantially identical suits as an abuse of court process.** **The upshot of our above findings is that this appeal is devoid of merit. Accordingly, we dismiss it with no orders as to costs since the respondent did not participate in the appeal.** 1. On the issue of jurisdiction, the 1st respondent cited the ruling dated 27th April 2023 in **Benjamin vs Attorney General & 2 Others; Malokwe & 53 Others (Interested Parties) (Petition E207 of 2022) [2023] KEELRC 962 (KLR) (27 April 2023) (Ruling)** where the Employment and Labour Relations Court, in pronouncing itself on a preliminary objection raised on whether it had the jurisdiction to hear the matter of nomination, vetting and appointment of 51 principal secretaries in 2022 for the failure to abide by two thirds gender principle under Article 27(8) of the Constitution, held that it had jurisdiction over the matter. The court held as follows: **To answer the 4th issue, the Court returns that it enjoys the relevant jurisdiction to hear and determine the petition but for the finding that the statutory alternative dispute procedure had not been invoked and exhausted. The applicant object to jurisdiction on account that there is no employer –employee relationship. However, the Court of appeal in Narok County Government & Another –Versus- Richard Bwongo Birir & Another [2015]eKLR (Waki JA, Nambuye JA and Kiage JA) upheld that all public servants and state officers serving in the Legislature, the Judiciary and the Executive or other public bodies are all servants of the people and their employment is governed by constitutional, statutory and lawful policy provisions and, practices. The Court is on its part guided by that holding of the Court of Appeal. In that regard the Court follows its previous holdings aligned with that holding of the Court of Appeal such as follows. In the ruling delivered on 12.04.2019 in Okiya Omtatah Okoiti –Versus- The National Executive of the Republic and 6 Others [2019]eKLR, thus, “The Court has also held that in the public service under the Constitution of Kenya 2010, there are no masters and servants so that in public service in the new Republic, the test of master – servant does not obtain towards establishing existence of employment. In Paul Nyadewo Onyango –Versus- Parliamentary Service Commission and Another [2018]eKLR the Court stated, “In the present case, the Court will not therefore place emphasis on the relationships between individual public or state officers. None was a servant or master of the other. What is paramount, in the opinion of the Court, is that the officers interrelate and work together within the lawful prescription of the standards of a good public service delivery. They have no private treaties binding one officer to the other but only the constitutional, statutory and lawful policies or practices that are applicable to the public service and incorporated in the individual officer’s contract of service.” In Okiya Omtatah Okoiti & Another –Versus- Cabinet Secretary for Information, Communications and Technology & 2 Others; Mohmoud Mohamed Noor and 9 Others [2019]eKLR; and Okiya Omtatah Okoiti –Versus- Attorney General & 2 Others, Francis Muthaura (AMB) & 5 Others [2019]eKLR; were all decisions consistent with that Court of Appeal guidance. On the jurisdictional question, the Court as well finds for the petitioners that it was adequately addressed by Nduma J in the ruling delivered in the consolidated petitions and now said to be subject of appeal as preferred by the applicant herein against that ruling.** 1. Being a ruling of the court of equal status to the high Court, under Article 162(2) of the constitution, the 1st respondent argued that it is not available for the petitioners to seek to revisit the issue. 2. The 1st respondent further argued that the Constitutional and human rights division of the High Court is only a division of the High Court and exercises jurisdiction as donated by **Article 165 of the Constitution**. It has no special jurisdiction and is not above any other division of the High Court or superior courts. To buttress that point, reliance was placed in the case of **Philip** **Kipchirchir Moi vs The Hon. Attorney General & Another (Nairobi Petition No. 65 of 2012) [2013] eKLR** where the court held: **I must begin by dispelling the fallacy that the constitutional and human rights division of the High Court in Nairobi has jurisdiction to superintend, supervise, direct, guide, shepherd and/or purport to mend the mistakes, real or perceived, of other divisions of the High Court in Nairobi or elsewhere in Kenya. In spite of the continued and consistent stand of judges of that division that it cannot have the intention of the framers of the constitution that such a position should exist, parties in every conceivable case, continue to invoke that fallacious and misguided jurisdiction.** 1. Further reliance was placed in the case of **Peter Nganga Muiruri vs Credit Bank Ltd & Others (Nairobi Civil Appeal No. 203 of 2006) [2008] eKLR** where the Court of Appeal rendered itself:- **There is no provision in the constitution which establishes what Nyamu J referred to as the constitutional court. In Kenya we have a division of the High Court at Nairobi referred to as ‘Constitutional and Judicial Review’ division. It is not an independent court but merely a division of the High Court. The wording of Section 67 of the Constitution which donates power to the High Court to deal with questions of interpretation of sections of the constitution or parts thereof does not talk about a constitutional court. Instead it talks about the High Court.** 1. The 1st respondent further argued that the essence of filing the current petition is to, through craft, reopen/relitigate upon the decision of Justice Byram Ongaya in Benjamin vs Attorney General & 2 Others; Malokwe & 53 Others (Interested Parties) (Petition E207 of 2022) [2023] KEELRC 962 (KLR) (27 April 2023) (Ruling), jurisdiction which is not available to this Honourable Court. Reliance was placed in the case of **Kenya Hotel Properties Limited vs Attorney General & 5 Others Petition No. 16 of 2020 [2022] KESC 62 (KLR)** where the court held:- **As was thus rightly noted by the High Court and Court of Appeal, the rule of thumb is that superior courts cannot grant orders to reopen or review decisions of their peers of equal and competent jurisdiction much less those court higher than themselves.** 1. The 1st respondent asserted that the instant suit is an abuse of the court process which concept was defined in the case of **Kenya Section of the International Commission of Jurists vs Attorney General & 2 Others [2012] eKLR** where the Supreme Court held:- **The concept of ‘abuse of the process of the court’ bears no fixed meaning, but has to do with the motives behind the guilty party’s actions; and with a perceived attempt to manoeuvre the court’s jurisdiction in a manner incompatible with the goals of justice.** 1. Further reliance was placed in the case of **Satya Bhama Gandhi vs Director of Public Prosecutions & 3 Others [2018] eKLR** where the court stated: **The concept of abuse of court/judicial process is imprecise. It involves circumstances and situation of infinite variety of conditions. It is recognised that the abuse of process may lie in either proper or improper use of the judicial process in litigation. However, the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponents.** **The situation that may give rise to an abuse of court process are indeed in exhaustive, it involves situations where the process of the court has not been or resorted to fairly, properly, honestly to the detriment of the other party. However, abuse of court process in addition to the above arises in the following situations:** **Where there is no iota of law supporting a court process or where it is premised on recklessness. The abuse in this instance lies in the inconvenience and inequalities in the aims and purposes of the action.** 1. On the third issue, the 1st respondent affirmed that the instant petition is moot as the president on 20th March 2025 reorganized and restructured the National executive by nominating a number of persons for appointment to the ranks of principal secretaries and reshuffling the principal secretaries to 57 out of which 17 are women making 29.82% thus meeting the 30% threshold. Thus, the claim by the petitioners is no longer a live controversy. Reliance was placed in the case of **Institute for Social Accountability & Another vs Senate & 5 Others (Petition 1 of 2018) [2022] KESC 39 (KLR) (8 August 2022) (Judgment)** where the Supreme Court held:- **The common thread from the above decisions is that a matter is moot when it has no practical significance or when the decision will not have the effect of resolving the controversy affecting the rights of the parties before it. If a decision of a court will have no such practical effect on the rights of the parties, a court will decline to decide on the case. Accordingly, there has to be a live controversy between the parties at all stages of the case when a court is rendering its decision. If after the commencement of the proceedings, events occur changing the facts or the law which deprive the parties of the pursued outcome or relief then, the matter becomes moot.** 1. On the final issue, the 1st respondent submitted that under **Article 155(1) of the Constitution**, the office of the principal secretary is established as an office in the public service. Thus, by dint of **Article 155(1) and (2) of the Constitution**, the two thirds gender parity principle should be considered in the context of either the public service taken as a whole or a given state department in particular. Further under **Sections 107, 108 and 109 of the Evidence Act** and in the case of **Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR** , the burden is upon the petitioners to demonstrate that the composition of the entire public service or a given state department does not meet the two thirds gender principle, which burden has not been discharged in the present petition. 1. The 1st respondent affirmed that as is and based on the presumption of regularity of government decisions or actions, it is deemed that the entire public service taken as a whole and all state departments in particular meet the two thirds gender principle. Reliance was placed in the case of **Chief Land Registrar & 4 Others vs Nathan Tirop Koech & 4 Others (2018) eKLR** where the court held:- **There is a presumption that all acts done by a public official have lawfully been done and that all procedures have been duly followed. The presumption of regularity is a presumption that executive officials have properly discharged their official duties. The presumption is aptly captioned in the ancient latin maxim “omnia praesumuntur rite esse acta” which roughly translated means “all things are presumed to have been done rightly.”** **The 2nd Respondent’s Submissions** 1. The 2nd respondent identified three issues for determination as follows: whether the commission discharged its role in accordance with constitution, the PSC Act and PSC Regulations 2020; whether the instant petition has been overtaken by events, hence moot and whether the instant petition *is res judicata*. On the first issue, the 2nd respondent cited **Article 233(1) of the Constitution**, **Section** **47 of the Public Service Commission Act** and **Regulation 26 of the Public Service Commission Regulations, 2020** and submitted that the commission is only required to recommend names and forward to the president for nomination for appointment of persons as principal secretaries who are then appointed after approval by the National Assembly and thus its role in the appointment stood terminated at the point it submitted the list of recommended nominees in accordance with the constitution and the law. 1. On the second issue, the 2nd respondent reiterated that on 20th March 2025, the president re-organised and restructured the National Executive by appointing 57 principal secretaries out of which 17 were women thereby abiding by the two thirds gender principle under **Article 27(6) and (8) of the Constitution**. Thus, the issue of non compliance with the two thirds gender rule is no longer a live controversy and has been rendered otiose. Reliance was placed on the case of **Institute for Social Accountability & Another vs Senate & 5 Others (Petition 1 of 2018) [2022] KESC 39 (KLR) (8 August 2022) (Judgment)** where the Supreme Court held:- **The common thread from the above decisions is that a matter is moot when it has no practical significance or when the decision will not have the effect of resolving the controversy affecting the rights of the parties before it. If a decision of a court will have no such practical effect on the rights of the parties, a court will decline to decide on the case. Accordingly, there has to be a live controversy between the parties at all stages of the case when a** **court is rendering its decision. If after the commencement of the proceedings, events occur changing the facts or the law which deprive the parties of the pursued outcome or relief then, the matter becomes moot.** 1. On the final issue, the 2nd respondent argued that the petition is *res judicata* because a similar petition had been filed at the Employment and Labour Relations Court at Nairobi being ELRC Petition No. E207 of 2022 Dr. Magare Gikenyi J. Benjamin vs The Hon. Attorney General & 54 Others which was struck out vide a ruling delivered by Hon. Byram Ongaya J. on 27th April 2023. Being aggrieved with the said ruling, Dr. Magare moved the Court of Appeal at Nairobi vide Civil Appeal No. E722 of 2023 and the appeal was dismissed. The 2nd respondent further argued that the issues in the instant petition were directly and substantially in issue before the ELRC Court and they were determined conclusively. In that regard, and whereas the petitioner was not a party in the ELRC suit, the suit herein is res judicata under **Section 7 of the Civil Procedure Act**. Reliance was placed in the case **of Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 Others [2014] KESC 53 (KLR)** where the Supreme Court held:- **The concept of res judicata operates to prevent causes of action or issues from being relitigated once they have been determined on the merits. It encompasses limits upon both issues and claims and the issues that may be raised in subsequent proceedings. In this case, the High Court relied on “issue estoppel” to bar the 1st, 2nd and 3rd respondents’ claims. Issue estoppel prevents a party who previously litigated in a claim and lost, from taking a second bite at the cherry. This is a long standing common law doctrine for bringing finality to the process of litigation; for avoiding multiplicities of proceedings; and for the protection of the integrity of the administration of justice all in the cause of fairness in the settlement of disputes.** **This concept in incorporated in Section 7 of the Civil Procedure Act which prohibits a court from trying any issue which has been substantially in issue in an earlier suit. It thus provides:-** **No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court.** 1. Similar reliance was placed in the case of **Kenya Pharmaceutical Distributors Association & Another vs Anti-Counterfeit Authority & 2 Others; Kenya Industrial Property Institute & 3 Others (Interested Parties) (Petition E536 of 2022) [2024] KEHC 13766 (KLR)** **(Constitutional and Human Rights) (7 November 2024) (Ruling)** where this court held: **……..res judicata not only bars identical suits from being re-litigated between the same parties or their representatives but equally extends to issue based estoppel that precludes an issue in a former suit that was decided from being reintroduced by a party or the representative of such party in a later claim/suit even though the suit may be different but the issue in the former suit is recurring.** 1. The 2nd respondent thus submitted that the instant petition is *res judicata* and ought to be struck out in view of the decision by the ELRC Court. **Analysis and Determination** 1. Upon careful consideration of the pleadings and the parties’ submissions, this Court finds the following to be the issues for determination in the instant Petition: 2. *Whether the instant petition is* ***sub judice.*** 3. *Whether the instant petition is* ***res judicata****.* 4. *Whether the petition is* ***moot.*** **Whether the instant petition is sub judice.** 1. The term *sub judice* is defined in the Black’s Law Dictionary, Tenth Edition to mean ‘*under a Judge’ or before the Court for determination*. It thus describes a case that is under active consideration by a Court or Judge. 2. Statutorily, the principle is codified by Section 6 of the Civil Procedure Code which states thus: ***6. Stay of suit*** *No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.* 1. Public interest matters such as the present case are not immune from the principle of *sub judice*. If it is shown that the matter or the cause of action before the Court is identical to another case that is pending before different Court of competent jurisdiction, whether filed by a different party in public interest, the Court will decline to try the matter having contemporaneous proceedings of the same issue in different courts. In ***Okiya Omutatah Vs*** ***Communication Authority of Kenya (2015) eKLR,*** the Court asserted this position by holding thus: **“34. Further to the above, explanation (6) of the Civil Procedure Act makes it clear that Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating….”** 1. The present petition seeks to challenge the constitutionality of the nomination and appointment of principal secretaries that was made in the year 2022. It is not in dispute that several matters were filed in relation to the same factual matrix among the Employment and Labour Relations cases- Nairobi ELRC Petition E207 of 2022 Dr. Magare Gikenyi vs The Hon. Attorney General & Public Service Commission & 55 Others (Interested Parties) and Nairobi ELRC Constitution Petition No. 20 of 2022 Stephen Kariuki Maina vs The Hon. Attorney General & Others which similarly impugn the constitutionality of the nomination and appointment of principal secretaries. In ELRC Petition E207 of 2022, a preliminary objection was raised in regard to the jurisdiction of the court to hear the subject matter of the nomination, vetting and appointment of 51 principal secretaries in 2022. Vide a ruling dated 27th April 2023, the court held that: - **To answer the 4th issue the Court returns that it enjoys the relevant jurisdiction to hear and determine the petition but for the finding that the statutory alternative dispute procedure had not been invoked and** **exhausted. The applicant object to jurisdiction on account that there is no employer –employee relationship. However, the Court of appeal in Narok** **County Government & Another –Versus- Richard Bwongo Birir & Another** **[2015]eKLR (Waki JA, Nambuye JA and Kiage JA) upheld that all public servants and state officers serving in the Legislature, the Judiciary and the Executive or other public bodies are all servants of the people and their employment is governed by constitutional, statutory and lawful policy provisions and, practices. The Court is on its part guided by that holding of the Court of Appeal. In that regard the Court follows its previous holdings aligned with that holding of the Court of Appeal such as follows. In the ruling delivered on 12.04.2019 in Okiya Omtatah Okoiti –Versus- The National Executive of the Republic and 6 Others [2019]eKLR, thus, “The Court has also held that in the public service under the Constitution of Kenya 2010, there are no masters and servants so that in public service in the new Republic, the test of master – servant does not obtain towards establishing existence of employment. In Paul Nyadewo Onyango –Versus- Parliamentary Service Commission and Another [2018]eKLR the Court** **stated, “In the present case, the Court will not therefore place emphasis on the relationships between individual public or state officers. None was a servant or master of the other. What is paramount, in the opinion of the Court, is that the officers interrelate and work together within the lawful prescription of the standards of a good public service delivery. They have no private treaties binding one officer to the other but only the constitutional, statutory and lawful policies or practices that are applicable to the public service and incorporated in the individual officer’s contract of service.” In Okiya Omtatah Okoiti & Another –Versus- Cabinet Secretary for** **Information, Communications and Technology & 2 Others; Mohmoud Mohamed Noor and 9 Others [2019]eKLR; and Okiya Omtatah Okoiti –Versus- Attorney General & 2 Others, Francis Muthaura (AMB) & 5 Others [2019]eKLR; were all decisions consistent with that Court of Appeal guidance.** **On the jurisdictional question, the Court as well finds for the** **petitioners that it was adequately addressed by Nduma J in the ruling delivered in the consolidated petitions and now said to be subject of appeal** **as preferred by the applicant herein against that ruling.** 1. Being aggrieved with the said ruling, Dr. Magare lodged an appeal to the Court of Appeal in Nairobi being Civil Appeal E722 of 2023 where the court rendered its judgment on 22nd November 2024 and holding that it could not determine the competing jurisdictional issue between the High Court and ELRC because ELRC had treated the jurisdictional question has having been adequately addressed in related constitutional petitions that were already subject of appeal. It considered that it would thus be improper to pronounce itself on the issue else it embarrasses the bench seized of that related appeal. The Court of Appeal stated thus: **Lastly, although the appellant urged us to determine whether it is the High Court or the ELRC that has jurisdiction to determine cases regarding constitutionality of appointments of principal secretaries, we shall not do so because the learned judge in his impugned ruling stated:** **On the jurisdictional question, the Court as well finds for the petitioners that it was adequately addressed by Nduma J in the ruling delivered in the consolidated petitions and now said to be subject of appeal as preferred by the applicant herein against that ruling.** **In the circumstances it would be improper for us to pronounce ourselves on the issue as that may embarrass the bench that is seized of the appeal.** 1. It is evident that the issue of jurisdiction was raised in the Employment and Labour Relations Court which is a court of equal status to the current court. It affirmatively found that it has jurisdiction to deal with the matter. It would be remiss for this Court to continue the trial of this in matter fully when it is clear that the factual matrix upon which it is premised is similar to what is before the ELRC, (a Court of equal status that has already affirmatively assumed jurisdiction) and despite the issue of competing jurisdiction as between the High Court and ELRC, the the Court of Appeal has not authoritatively pronounced itself on the matter by clarifying with certainty which of the two Courts, between this Court and ELRC has jurisdiction over this matter. In the circumstances, I decline to hold parallel proceedings by determining this matter with finality before this position is known especially after the assertion of jurisdiction by the ELRC Court. This preserves judicial comity. 1. The prudent and proper course to take would be to stay the instant proceedings to await the Court of Appeal definitive determination of the jurisdictional question so that once the issue is decided, the parties would know the direction to take in the litigation. 1. I accordingly order that a stay of further proceedings shall issue, pending the determination of the jurisdictional question as which of the two Courts, (the High Court or ELRC) shall the petitions proceed in. 2. The matter shall be mentioned before the presiding Judge of the Constitutional and Human Rights Division in three months time to wit, 3/12/2026, for the parties to update the Court on the position reached by the Court of Appeal on the jurisdictional question to enable the Court give further directions. ***DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 3RD DAY OF SEPTEMBER, 2026.*** \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ **L.N MUGAMBI** **JUDGE**