https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12955

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. E124 OF 2023** **IN THE MATTER OF CONTRAVENTION AND INTENDED CONTRAVENTION OF FUNDAMETAL RIGHTS AND FREEDOMS UNDER ARTICLES 2, 27, 41, 47 AND 231 AND 258 OF THE CONSTITUTION OF KENYA, 2010.** **AND** **IN THE MATTER OF THE CENTRAL BANK OF KENYA, ACT** **AND** **IN THE MATTER OF ADVERTISEMENT FOR POSITION OF GOVERNOR AND DEPUTY GOVERNOR OF CENTRAL BANK OF KENYA** **AND** **IN THE MATTER OF PUBLIC SERVICE COMMISSION ACT** **AND** **IN THE MATTER OF FAIR ADMINISTRATION ACT** **AND** **IN THE MATTER OF CONTRAVENTION OF THE EMPLOYMENT ACT** **AND** **IN THE MATER OF CONTRAVENTION OF THE APPLICATION, ENFORCEMENT AND INTERPRETATION OF SECTIONS 12A, 13, 13B, 13C AND 14(1) OF THE CENTRAL BANK OF KENYA ACT** **-BETWEEN** **ISHMAEL NYARIBO t/a** **I.N. NYARIBO & COMPANY ADVOCATES ........................ PETITIONER** **-VERSUS-** **PUBLIC SERVICE COMMISSION ............................... 1ST RESPONDENT** **THE ATTORNEY GENERAL OF KENYA .................. 2ND RESPONDENT** **CENTRAL BANK OF KENYA ...................................... 3RD RESPONDENT** **THE NATIONAL ASSEMBLY .................................... 4TH RESPONDENT** **JUDGMENT** **Introduction** 1. The amended Petition dated 17th April 2023 challenges an advertisement dated 30th March 2023, issued by the 1st Respondent the Public Service Commission, inviting applications for the positions of Governor and Deputy Governor of the Central Bank of Kenya. The Petitioner Claims that the requirements set out in the advertisement, alongside the underlying statutory provisions of the Central Bank of Kenya Act, CAP 491 violate constitutional principles regarding equality, fair administrative action, non-discrimination, and fair labor practices. The Petitioner alleged that Sections 13, 13B, 13C, and 14(1) of the Central Bank of Kenya Act Cap 491 are unconstitutional because they violate Articles 27, 41, and 47 of the Constitution by unfairly discriminating against financial specialists. 2. The Petitioner Ishamel Nyaribo T/A I.N. Nyaribo & Company Advocates seeks the following reliefs: 3. ***A DECLARATION that Sections 13, 13B, 13C, and 14 of the Central Bank of Kenya Act, CAP 491 is inconsistent with the Constitution, and therefore void and invalid in terms of Article 2(4) of the Constitution.*** 4. ***A DECLARATION that Section 13, 13B, 13C and 14 of the Central Bank of Kenya Act Cap 491 is in part, and in whole unconstitutional and it accordingly stands to be struck off from the statute.*** 5. ***An ORDER that the Advertisement dated 30th March 2023 issued by the 1st Respondent be reviewed forthwith to abide by the constitutional provisions of the Constitution of Kenya 2010.*** 6. ***Any other equitable relief that the Honourable Court may wish to grant the Petitioner.*** 7. The Petition is supported by the sworn affidavit of the Petitioner on 14th April 2023 in which he asserts that the Public Service Commission’s advertisement for the positions of Governor and Deputy Governor of the Central Bank of Kenya is discriminatory against a large number of otherwise qualified professionals noting that the Governor and Deputy Governor positions are critical to Kenya’s economic well-being. 8. He avers that the advertisement was set to close on 19th April 2023, at 5:00 PM and that without the court’s intervention, the recruitment process will result in continued violations of the Constitution. 9. Concurrently with the Petition, the Petitioner had also filed a Notice of Motion Application dated 14th April 2023 seeking conservatory orders to stay the recruitment process pending the hearing and determination of this Petition by the Court. A Notice of Preliminary Objection was filed by the 3rd Respondent. 10. On 8th May 2023, this Court, differently constituted Ongudi J (as she then was) declined to issue conservatory orders and urged the parties to proceed with the hearing of the main suit on a priority basis. The subsequent responses therefore, addressed both the conservatory orders Application and the main Petition. The parties also took directions to canvass the Preliminary Objection in the main Petition. **Responses** 1. In response to the Petition, the 1st Respondent Public Service Commission through its Principal Legal Counsel Wangeci Gichangi, filed Grounds of Opposition dated 26th April 2023 seeking a dismissal of the Petitioner’s Notice of Motion Application and Petition with costs. 2. The key grounds of opposition pleaded are lack of precision where the 1st Respondent contends that the Application and Petition constitute an abuse of court process because the Petitioner merely cited statutory and constitutional provisions without setting out alleged violations or omissions with reasonable precision as set out in ***Anarita Karimi Njeru v Republic*** case. 3. That the petition is based on conjecture, apprehension and misapprehension, lacking solid factual pleadings. It is further asserted that the recruitment process and candidate qualifications for the CBK Governor and Deputy Governor positions are strictly governed by the Constitution, the Central Bank Act (CAP 491) and the Public Service Commission Act. 4. It is pleaded that *Sections 13, 13B, 13C, and 14 of the Central Bank Act* carry a presumption of constitutionality until proven otherwise as was held in *Ndyanabo v Attorney General*. 5. Additionally, it is contended that the Petitioner failed to meet established legal standards for granting conservatory orders as set out in ***Gatirau Peter Munya v Dickson Mwenda Kithinji* and *Nubian Rights Forum v Attorney General*.** 6. The 1st Respondent contends that no evidence of actual, imminent danger, irreparable harm, or rights violation under *Article 23 (3) (c)* was demonstrated to justify court intervention and that the court retains full power to quash the recruitment process later if it is found to be unconstitutional, meaning conservatory orders are unnecessary. 7. The 2nd Respondent, the Attorney General also filed Grounds of Opposition dated 24th April 2023, opposing the Petition on grounds that the Petitioner failed to demonstrate with precision how the Public Service Commission, the Attorney General or the Central Bank of Kenya violated any constitutional or statutory mandate during the recruitment process for the positions of Governor and Deputy Governor of the Central Bank of Kenya. 8. The Attorney General maintains that the statutory qualifications and recruitment procedures are clearly anchored under the Constitution, the Central Bank Act (CAP 491) and the Public Service Commission Act. Further that, *Sections 13, 13B, 13C, and 14 of the Central Bank Act* carry a presumption of legality that the Petitioner has failed to overcome. 9. The 2nd Respondent adds that any limitations on constitutional rights under *Articles 27, 41, and 47* meet the requirements of *Article 24,* and that the Petitioner’s personal difficulty in meeting statutory requirements does not make the law unconstitutional. 10. Characterising the petition as bad-faith, an afterthought and based on personal inclinations rather than a real controversy, the Attorney General highlights that the challenged statutory framework was enacted in 2012 and has guided successive appointments without prior challenge. Additionally, they argue that the Petitioner failed to satisfy the legal standard for conservatory orders established in ***Gatirau Peter Munya v. Dickson Mwenda Kithinji* and *Nubian Rights Forum v. Attorney General*.** 11. Another ground is that the Petitioner demonstrated no real, imminent danger, irreparable harm, or actual infringement of rights under *Article 23(3)(c).* 12. Finally, the 2nd Respondent warns that granting conservatory relief would delay filling vital monetary policy leadership roles, threaten financial stability and undermine *Article 231(2) of the Constitution*. It is further contended that because the recruitment process is reversible and could be quashed later if ultimately found invalid, both the Application and Petition be dismissed with costs. 13. The 3rd Respondent, The Central Bank of Kenya filed a Replying Affidavit and Preliminary Objection in opposing the Petition and Application. 14. In the Notice of Preliminary Objection dated 24th April 2023, the 3rd Respondent asserts that the petition is bad in law, does not lie and should be struck out or dismissed with costs on the following grounds: - 15. ***The Petition seeks to challenge the autonomy of the Central Bank of Kenya as granted by Article 231 of the Constitution of Kenya ("the Constitution").*** 16. ***The power to enact legislation with regard to the composition, powers, functions and operations are, having been granted to Parliament by Article 231 of the Constitution to provide for the composition, powers, functions and operations of the Central Bank of Kenya ("the Bank"), and Parliament having pursuant thereto enacted the Central Bank of Kenya Cap. 491 ("the Act"), the same cannot be challenged by way of a Petition.*** 17. ***The Petition contradicts the provisions of Articles 10 and 73(2)(a) & (b) of the Constitution which provide for the guiding principles of leadership and integrity to include selection on the basis of personal integrity, competence and suitability, as well as objectivity and impartiality in decisions making and ensuring that decisions are not influenced by inter alia favouritism and improper motives.*** 18. ***The matters pleaded by the Petitioner are contrary to the principles of Leadership and Integrity as provided for under Chapter Six of the Constitution and more specifically the selection on the basis of personal integrity, competence and suitability and the necessity to avoid any conflict between personal interest and public official duties.*** 19. ***The Petitioner seeks the declaration of nullity with regard to Sections 13, 13B and 13C of the Act without providing any pleading or ground therefor. In the foregoing, the Petition does not meet the threshold under Article 258 of the Constitution as there is no contravention or a threat to contravene the Constitution.*** 20. ***The Petition, on the face of it, is an abuse of process as it does not set out with reasonable precision the constitutional violations or omissions by the 3rd Respondent as well as the provisions of the Constitution allegedly infringed contrary to the binding precedents set out in Anarita Karimi Njeru vs. Republic [1979] eKLR and Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5 others [2013] eKLR.*** 21. In the Replying Affidavit dated 25th April 2023 by Kennedy Kaunda Abuga, the General Counsel of the Central Bank of Kenya (CBK), the 3rd Respondent opposes the Petition and highlights that the advertisement set an application deadline of 19th April 2023, to replace the outgoing Governor and a Deputy Governor whose terms expired in June 2023. 22. He asserts that the statutory qualifications and disqualification criteria in *Sections 13, 13B, 13C, and 14 of the Central Bank Act (Cap 491*) are reasonable, proportionate and rationally connected to ensuring good governance, avoiding conflicts of interest and maintaining monetary policy independence under *Article 24* and *Chapter Six of the Constitution*. 23. The deponent further deposes that *Section 14(1)(c)* rightly excludes bank officers, directors, or shareholders to prevent severe conflict of interest and contends that the Petitioner failed to plead with precision how the statutory framework or recruitment process violates constitutional rights under *Articles 27, 47, 231, or 258*. 24. The deponent states that CBK neither issued a publication, the advertisement, nor is it statutorily mandated to conduct the recruitment, making the claims against the 3rd Respondent misplaced. 25. Finally, the CBK argues that declaring *Sections 13 and 13B* unconstitutional would ground the operations and financial sector regulation of the CBK, thereby *violating Article 231 of the Constitution*. It is their contention that the Petitioner is guilty of laches by waiting until the application window expired on 19th April 2023, before filing the petition and they prayed for the Petition to be dismissed with costs. 26. The 4th Respondent the National Assembly filed a Replying Affidavit sworn by Mr. Samuel Njoroge, the Clerk of the National Assembly dated 17th February 2025. The deponent opposes the Petitioner’s challenge to the constitutionality of *Sections 13, 13B, 13C, and 14 of the Central Bank of Kenya (CBK) Act (Cap 491)* and the Public Service Commission's advertisement dated 30th March, 2023 affirming that the impugned provisions of the CBK Act were procedurally and legally enacted in strict accordance with the Constitution of Kenya 2010 and the Standing Orders of the National Assembly. 27. The 4th Respondent argues that the Petition lacks the required constitutional specificity under *Rule 10(2),* as it fails to precisely state the infringed rights or injury caused. Further, that the Petitioner failed to exhaust available statutory remedies, such as petitioning Parliament under Article 119 to amend the law. 28. It is averred that granting the requested relief would violate the principle of constitutional avoidance and breach the separation of powers by interfering with Parliament’s exclusive legislative mandate under Article 94. 29. The National Assembly maintains that Sections 13, 13B, 13C, and 14 of the CBK Act are fully constitutional and enacted pursuant to Article 231(5). That the eligibility limitations under Section 14 are reasonable, proportionate and rationally designed to prevent conflict of interest and to ensure independent leadership. 30. It is asserted that differentials based on job requirements do not constitute illegal discrimination under Article 27 or the Employment Act, and that because the Petitioner failed to rebut the legal presumption of constitutionality, the Petition should be dismissed with costs. 31. Parties took directions to canvass the Petition and Preliminary Objection by way of written submissions which they also highlighted in Court on 18th June 2026. **The Petitioner’s Submissions** 1. The Petitioner’s Submissions on the Preliminary Objection raised by the 3rd Respondent are dated 3rd May 2023 stating that the 3rd Respondent’s objection raised factual arguments rather than pure points of law, rendering it improper as a preliminary bar to jurisdiction. 2. The Petitioner argues that under Article 159 of the Constitution, courts are mandated to administer justice without undue regard to technicalities. Counsel submits that the impugned provisions suppress principles of corporate governance and national values enshrined in Article 10 of the Constitution. 3. Reliance was placed on ***Petition 284 of 2019 as consolidated with Petition 355 of 2019, The Senate of the Republic of Kenya & 4 others v. The Speaker of the National Assembly and another*,** where a three-judge bench comprising Justices Anthony Ndung’u, Ngaah Jairus, and Mumbua T. Matheka is said to have declared 23 pieces of legislation to be unconstitutional for lack of proper public participation. 4. Counsel also cited ***Mugure & 2 others v. Higher Education Loans Board (Petition E002 of 2021) [2022] KEHC 11951 (KLR) (Civ*),** where Justice A. Mabeya is said to have quashed *Section 15(2) of the HELB Act for violating Article 43(1)(e)* and *(f)* as well as *Article 27 of the Constitution* by imposing interest rates exceeding the principal amount in violation of the *duplum* rule. 5. Regarding the court’s jurisdiction over ongoing recruitment processes, the petitioner cited *Katiba Institute v. Judicial Service Commission & 2 Others* and *Petition No. 101 of 2011, FIDA-K & others v. Attorney General & another*, emphasizing that failure to grant conservatory orders would render the main petition nugatory. The petitioner relied on *Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 others [2014]* and *Katiba Institute v. Judicial Service Commission & 2 Others* to urge the court to grant interim relief and preserve the substratum of the matter. 6. The Petitioner also filed submissions on the main petition dated 27th June 2023. The petitioner argued that *Sections 12A, 13, 13B, 13C, and 14 of the Central Bank of Kenya Act Cap 491* unfairly exclude qualified private sector professionals from recruitment, thereby violating Articles *2, 27, 41, 47, 231, and 258 of the Constitution*. 7. Counsel submits that the exclusion of private-sector candidates creates an arbitrary classification that fails the test of reasonable distinction under Article 27 of the Constitution, guaranteeing equality and freedom from discrimination and Article 232 of the Constitution on values and principles of public service. 8. On the standard for non-discrimination, Counsel cited ***High Court Constitutional Petition 476 of 2015; The Coalition for Reforms and Democracy v. The Attorney General and 2 others*,** where a three-judge bench consisting of Justices P. Nyamweya, W. Okwany, and J. M. Mativo emphasized that at the heart of the prohibition of unfair discrimination lies the recognition of equal dignity and respect. The petitioner further supports the role of private sector expertise in governance by referring to persuasive foreign jurisprudence: the U.S. Supreme Court decision in ***Humphrey’s Executor v. United States (1935)*** regarding specialized expertise in independent regulatory bodies, ***Federal Reserve Board v. Chase National Bank (1943)*** on central bank independence from political influence, and ***Bank of Augusta v. Earle (1839).***Reliance was also placed on theUnited Kingdom’s *Bank of England Act 1998* to argue for independent, diverse governance structures free from political interference. 9. Addressing the legal standards for constitutional interpretation, the petitioner relies on ***Constitutional Petition 84 of 2018, Katiba Institute v. Attorney General and 2 others***, E. C. Mwita J ( as he then was) affirmed that under Article 259(1) of the Constitution of Kenya, constitutional interpretation must promote purpose, values, human rights, the rule of law, and good governance, relying on ***Re The Matter of Interim Independent Electoral and Boundaries Commission [2011] eKLR*, *Mahomed v. State v. Acheson 1991, and SA SOS*.** 10. Counsel highlights the principle of purposive interpretation laid down by the Supreme Court of Canada in **R. v. Big M Drug Mart Limited [1985] 1 SCR** **295.** To demonstrate the necessity of harmonious interpretation, the petitioner cites ***High Court Constitutional Petition 566 of 2012, Marilyn Muthoni Kamuru & 2 others v. The Attorney General & another*** and the decision of the Court of Appeal in ***Tinyefuza vs. The Attorney General Constitutional Appeal No. 1 of 1997*.** 11. Lastly, Counsel contends that *Sections 13 and 14(1)(c) of the Central Bank of Kenya Act Cap 491* directly contradict *Section 5(2), (3), and (6) of the Employment Act* as well as *Sections 36 and 37 of the Public Service Commission Act*, which prohibit discrimination in public recruitment processes. **The 1st Respondent’s Submissions** 1. The 1st Respondent filed its submissions dated 1st March 2024, made in opposition to the Petitioner’s application and Petition dated 17th April 2023. Counsel isolated the following issues for determination: *Whether Sections 13, 13B, 13C and 14 of the CBK Act are unconstitutional; Whether the 1st Respondent violated Articles 21(1) and 27 of the Constitution by advertising for vacancies in the office of CBK Governor and Deputy Governor; and Whether the Petitioner is entitled to the reliefs sought in the Petition dated 17th April 2023.* 2. On the first issue, Counsel for the 1st Respondent submits that the Petitioner failed to meet the pleading precision standard set in ***Anarita Karimi Njeru v. Republic [1979] eKLR*** and reaffirmed in ***Communications Commission of Kenya & 5 Others v. Royal Media Services Limited & 5 Others [2014] eKLR*,** which requires clear demonstration of the manner of constitutional violation. 3. Relying on ***Olum and another v. Attorney General [2002] EA, The Queen v. Big M Drug Mart Ltd (1986)* and *Centre for Rights Education and Awareness & another v. John Harun Mwau & 6 others [2012] eKLR*,** Counsel for the 1st Respondent asserts that evaluating statutory validity requires analysing both purpose and effect. The statutory disqualifications under *Section 14(1)(c) of the Central Bank of Kenya Act Cap 491* serve the legitimate object under *Section 4 of the Central Bank of Kenya Act Cap 491* to regulate financial systems and prevent conflicts of interest, constituting a permissible limitation under Article 24(1) of the Constitution of Kenya 2010. Quoting ***Nyarangi & 3 Others v. Attorney General HCCP No. 298 of 2008 [2008] KLR 688***, Counsel maintains that the law prohibits only unfair discrimination, not reasonable restrictions justified by democratic values and public interest. 4. Counsel further contends that the impugned statutory provisions enjoy a presumption of constitutionality, as established in ***Ndyanabo v. Attorney General [2001] EA 495*,** which the Petitioner failed to rebut. Referencing ***Muema Mativo v. Director of Criminal Investigation & 2 others [2021] eKLR*, *Jeminah Wambui Ikere v. Standard Group Ltd and Anor (Petition No. 466 of 2012)* and *Rapinder Kaur Atwal v. Manjit Singh Amrit (Petition No. 236 of 2011),*** Counsel submits that the court process cannot be used as a substitute to remedy administrative grievances without proving actual rights violations under *Article 23(1) of the Constitution*. Furthermore, regarding the alleged violation of *Articles 21(1) and 27 of the Constitution*, Counsel cites ***John Harun Mwau v. Independent Electoral and Boundaries Commission & Another [2013] eKLR*** to emphasize that establishing a constitutional breach requires proving a denial of equal protection rather than mere differentiation. Consequently, Counsel submits that the recruitment advertisement was lawfully conducted pursuant to its mandate, praying for the petition to be dismissed with costs. **The 2nd Respondent’s Submissions** 1. The 2nd Respondent’s written submissions on the petition are dated 31st January 2024. The Petitioner sought a declaration that *Sections 13, 13B, 13C, and 14 of the Central Bank of Kenya Act Cap 491* are unconstitutional for violating *Articles 27, 41, and 47 of the Constitution*. Counsel isolated one issue for determination being: the constitutionality of the impugned provisions as alleged in the petitioner’s pleadings. 2. Counsel for the 2nd Respondent submits that under *Article 259 of the Constitution*, constitutional interpretation must promote values, principles, human rights, and the rule of law, while *Article 159(2)(e) of the Constitution of Kenya 2010* mandates the court to protect and promote these principles. He relied on ***Center for Rights Education and Awareness & 2 others v. John Harun Mwau & 6 others [2012] eKLR*,** and emphasized that every Act of Parliament carries a presumption of constitutionality, requiring a holistic, purposive reading of the statutory object and effect. To reinforce this presumption, Counsel cites the Indian Supreme Court decision in***Hamdard Dawakhana & Anor v. The Union of India & Others (1960),*** where it was heldthat legislatures enact laws based on experience and common knowledge to address public needs. Relying on ***Federation of Women Lawyers Kenya (FIDA) v. Attorney General & another [2018] eKLR,*** Counsel stresses that all relevant constitutional provisions must be interpreted together to fulfil the greater purpose of the Constitution. 3. Addressing the equality claim under *Article 27 of the Constitution* Counsel submits that mere inequality of treatment or differentiation does not constitute unconstitutional discrimination unless it is arbitrary and lacks a rational connection to a legitimate statutory goal. Relying on ***Nyarangi & Others v. Attorney General [2008] KLR 688*, which cited the US Supreme Court case *Griggs v. Duke Power Company (1971)****,* Counsel highlights the legal distinction between direct and indirect discrimination. 4. Counsel for the 2nd Respondent further cites ***Kedar Nath v. State of West Bengal (1953)* and *John Harun Mwau v. Independent Electoral and Boundaries Commission & Another [2013] eKLR*** to argue that statutory differentiation requires proof of an unreasonable denial of equal benefit. Utilizing the three-pronged test formulated in ***Nelson Andayi Havi v. Law Society of Kenya & 3 Others (2018) eKLR*,** Counsel maintains that the qualifications and disqualifications in Sections 13, 13B, 13C, and 14 of the Central Bank of Kenya Act Cap 491 align with Section 4 of the Central Bank of Kenya Act Cap 491 to prevent conflicts of interest and preserve leadership integrity as mandated by Article 73(2) of the Constitution. 5. Lastly, Counsel for the 2nd Respondent contends that the Petitioner failed to demonstrate how Articles 41 and 47 of the Constitution were violated, praying for the dismissal of the Petition. **The 3rd Respondent’s Submissions** 1. In its written submissions dated 28th April 2023, filed in support of its Preliminary Objection dated 24th April 2023, the 3rd Respondent the Central Bank of Kenya asks the Court to dismiss the Petition on the grounds that it fails to disclose any constitutional violation with precision and violates the presumption of constitutionality accorded to statutes. Counsel for the 3rd Respondent highlights that under *Article 231(5) of the Constitution*, Parliament was given the explicit mandate to enact legislation providing for the composition, powers, functions and operations of the Central Bank of Kenya. That inn line with this mandate, Parliament enacted the Central Bank of Kenya Act (Cap. 491), establishing the qualifications and disqualifications for the positions of Governor, Deputy Governor and Board Members under Sections 13, 13B, 13C, and 14(1)(c) of the Central Bank of Kenya Act. 2. Counsel emphasizes that the Petitioner fails to demonstrate with reasonable precision how these provisions infringe upon Article 27 of the Constitution on equality and freedom from discrimination, Article 41 on fair labour practices or Article 47 on fair administrative action, relying on the precedent set in ***Anarita Karimi Njeru v. Republic (No. 1) [1979] KLR 154* and *Mumo Matemu v. Trusted Society of Human Rights Alliance & Society [2013] eKLR*,** which require constitutional claims to be pleaded with high specificity. 3. Counsel submits that statutory enactments enjoy a rebuttable presumption of constitutionality, as established in ***Ndyanabo v. Attorney General [2001] EA 485*,** meaning the onus rests entirely on the Petitioner to prove unconstitutionality. Counsel for the 3rd Respondent contends that *Section 14(1)(c) of the Central Bank of Kenya Act* which disqualifies directors, officers, employees, partners, or shareholders of specified financial institutions from serving as Governor, Deputy Governor, or Director is aligned with *Article 73(2)(a) of the Constitution on avoidance of conflict of interest* and *Section 16 of the Leadership and Integrity Act (No. 19 of 2012).* 4. Reaffirming the central role of the Central Bank as the licensing authority and regulator for banks under Section 4 of the Banking Act (Cap. 488), Counsel argues that avoiding conflict of interest is essential to maintaining institutional integrity and public trust under *Article 10(2)(d) of the Constitution*. Counsel further maintains that the Petitioner cannot directly challenge *Article 80 of the Constitution* or the validity of constitutional provisions, relying on ***Attorney General & another v. Andrew Kiplimo Sang* *Muge & 2 others [2017] eKLR*,** which affirms that the Constitution is the supreme law and its provisions cannot be challenged before any court. Finally, relying on *Article 259(1)(a) of the Constitution*, Counsel concludes that the Petition constitutes an abuse of process and should be dismissed with costs. 5. In their submissions dated 17th September 2025 on the main Petition and the Notice of Motion Application, Counsel submits that the Petition lacks specificity, discloses no cause of action against the Bank and has been rendered academic and moot. Counsel points out that the advertisement dated 30th March 2023, issued by the 1st Respondent (Public Service Commission) for the positions of Governor and Deputy Governor, had already achieved its purpose, leading to appointments published via Gazette Notice:Vol. CXXV – No. 134 dated 13th June2023. 6. Applying the principles from ***Kenya National Examinations Council v. Republic ex parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR,*** Counsel submits that reviewing or quashing an advertisement that has already been fully executed would be an exercise in futility. Additionally, the 3rd Respondent asserts that it was neither responsible for publishing the advertisement nor mandated to undertake the recruitment, as recruitment falls under the mandate of the Public Service Commission. 7. On the merits of the statutory challenge, Counsel submits that the Petitioner failed to displace the presumption of constitutional validity attached to *Sections 13, 13B, 13C, and 14 of the Central Bank of Kenya Act (Cap. 491)*. He cited ***Law Society of Kenya v. Attorney General & another (Petition 4 of 2019) [2019] KESC 16 (KLR)*** and the Indian Supreme Court decision in ***Hamdard Dawakhana Keshava v. Union of India and Others (1960 AIR 554),*** and reiterated that courts must presume statutes to be constitutional unless convincing evidence is presented to the contrary. 8. Counsel highlights that any limitation imposed by Section 14(1) of the Central Bank of Kenya Act satisfies the proportionality and reasonableness tests under *Article 24(1) of the Constitution*. That the provision is directly anchored in Chapter Six of the Constitution, specifically *Article 73(2)(a) and Article 73(2)(c) of the Constitution*, as well as *Section 8 of the Conflict of Interest Act (Act No. 11 of 2025)* and *Sections 10 and 12 of the Leadership and Integrity Act (No. 19 of 2012)*, which mandate that public officers avoid situations where personal interests conflict with public duties. 9. The 3rd Respondent refutes claims of discrimination under *Article 27 of the Constitution* or fair labour violations under *Article 41 of the Constitution* relying on ***Mohamed Abduba Dida v. Debate Media Limited & another [2018] eKLR***and **the *International Labour Organization Discrimination (Employment and Occupation) Convention, 1958*,** to show that setting objective, conflict-of-interest disqualifications for regulatory offices does not amount to unconstitutional discrimination. Reaffirming ***Anarita Karimi Njeru v. Republic (No. 1) [1978] KLR 154 and Mumo Matemu v. Trusted Society of Human Rights Alliance & Society [2013] eKLR*,** Counsel concludes that the Petitioner failed to meet the required threshold of precision in constitutional litigation and prays that the Petition be dismissed with costs to the Bank. **The 4th Respondent’s Submissions** 1. The 4th Respondent, the National Assembly in its undated submissions isolated the following issues for determination: *Whether the petition meets the requirements for specificity? Whether the petitioner exhausted all available remedies? Whether the impugned sections of the CBK Act are constitutional?* 2. Counsel representing the National Assembly submits that the Petition and Application are incompetent, lack merit and constitute an abuse of the court process. They raise three main preliminary and procedural objections alongside a substantive defense of the constitutionality of the Central Bank of Kenya Act provisions. 3. Firstly, Counsel for the National Assembly submits that the Petition lacks the requisite specificity under ***Rule 10(2) of the Constitution* *(Protection* *of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013*** and asserts that the Petitioner failed to plead with precision the specific constitutional provisions infringed, the exact areas of contention, or the nature of the injury suffered. Relying on ***Anarita Karimi Njeru v Republic (1979) KLR 154, Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR,* and *Thorp v Holdsworth (1876) 3 Ch. D. 637,*** the 4th Respondent emphasizes that litigants must narrow and define the issues to prevent delay, expense, and prejudice. 4. Secondly, Counsel for the National Assembly argues that the Petitioner failed to exhaust alternative administrative and statutory remedies before invoking the Court’s jurisdiction. Specifically, it is argued that the Petitioner did not exercise the right under *Article 119 of the Constitution* to petition Parliament to amend or repeal the legislation pursuant to the *Petition to Parliament (Procedure) Act, 2012*. 5. Relying on the doctrine of exhaustion as outlined in ***Black’s Law Dictionary (10th Edition), Speaker of National Assembly v Karume [1992] KLR 21,* and *William Odhiambo Ramogi & others v Attorney General & 4 others (2020) eKLR****,* Counsel for the 4th Respondent contends that prescribed statutory procedures must be strictly followed and that the principle of constitutional avoidance restrains courts from premature intervention. 6. Thirdly it is the 4th Respondent’s assertion that the Petition violates the doctrine of separation of powers anchored in *Article 94 of the Constitution*, which vests exclusive legislative authority in Parliament. He relied on ***Nairobi Metropolitan PSV Sacco Union Ltd & 25 Others v County of Nairobi Government (2013); Poverty Alleviation Network & Others v* *President of the Republic of South Africa (2008) ZACC;* and *US v Butler 297 US 1 (1936*)** as cited in ***Maharashtra State Board of Secondary and Higher Education v Kumarsheth & Others (1985); Nature Foundation Limited v Minister for Information, Communication and Another;* and *British American Tobacco, Kenya PLC v Kenya Tobacco Control Alliance & 2 others (2017****),* the 4th Respondent submits that courts must exercise judicial restraint and refrain from interfering with legislative policy or questioning the wisdom of statutes. 7. Finally, regarding the substantive merits, the National Assembly contends that *Sections 13, 13B, 13C, and 14(1) of the CBK Act* are fully constitutional. The qualifications and limitations under *Section 14(1)(c)* are rationally connected to ensuring independent, impartial and competent leadership for the Central Bank and preventing conflicts of interest. 8. Quoting ***Federation of Women Lawyers (FIDA) Kenya & 5 Others v Attorney General & Another [2011] eKLR***, the 4th Respondent notes that differentiation does not amount to unconstitutional discrimination under *Article 27* unless it is arbitrary and unjustifiable. Furthermore, statutes carry a legal presumption of constitutionality, as affirmed in ***Hambarrda Wakhana v Union of India [1960] AIR 554, Ndayanabo v AG [2001] 2 EA 485, Olum and Another v Attorney General of Uganda [2002] 2 EA 508, Dr Jaya Thakur & ORS v Union of India & ANR (Writ Petition No. 14 of 2024),* and *Law Society of Kenya v Attorney General & 2 others [2013] eKLR***. It is their submission that, since the Petitioner failed to discharge the burden of rebutting this presumption, the Petition be dismissed with costs. **Analysis and Determination** 1. From the above summarized pleadings and the rival arguments of the parties in their respective submissions, the issues for my determination are as follows: - 2. ***Whether the 3rd Respondent’s Notice of Preliminary Objection is merited.*** 3. ***Whether the challenge against the Advertisement dated 30th March 2023 has been rendered moot by virtue of the recruitment being allowed to proceed in the absence of conservatory orders.*** 4. ***Whether the Petition meets the threshold of pleading precision required in constitutional litigation.*** 5. ***Whether Sections 13, 13B, 13C, and 14 of the Central Bank of Kenya Act (Cap. 491) are unconstitutional.*** 6. ***Who bears the Costs?*** 7. ***Whether the 3rd Respondent’s Notice of Preliminary Objection is merited.*** 8. The nature of Preliminary Objection was set out in the case of **Mukisa Biscuit Manufacturing Co. Ltd. v. West End Distributors Ltd . [1969] E.A. 696.** Where the Court of Appeal held thus; - Per, Law, JA at p 700:- ***“I agree that the application for the suit to be dismissed for want of prosecution should have taken the form of a motion, and not that of a ‘preliminary objection’ which it was not. So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration .”*** And to the same effect Newbold, P stated at p.701: ***“The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of preliminary objection. A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issues. This improper practice should stop.”*** 1. Thus, a preliminary objection can only be raised on a pure point of law and the facts in question must not be in contest. In the present petition, the grounds supporting the Notice of Preliminary Objection essentially say that the Petition is fatally flawed because it improperly challenges the constitutional independence of the Central Bank of Kenya, fails to demonstrate any actual violation of the Constitution, contradicts principles of leadership and integrity, and does not meet the strict pleading standards required by precedent, making it an abuse of the court process. 2. The 2nd Respondent the Attorney General argued that the statutory qualifications and recruitment procedures for the two positions referred to by the Petitioner herein are clearly anchored under the Constitution, the Central Bank Act, CAP 491 and the Public Service Commission Act. 3. Counsel for the Petitioner argues that the preliminary objection is misplaced because it raises disputed facts rather than pure points of law, and that under *Article 159 of the Constitution,* the court must prioritize substantive justice over technicalities. Secondly, the petitioner submitted that the High Court’s jurisdiction to invalidate unconstitutional statutes and oversee ongoing processes is clear as encapsulated in various cases where laws were struck down for lack of public participation or violation of rights and decisions affirming the court’s authority to intervene in recruitment matters to preserve the subject of litigation. 4. In considering these arguments, I find that the 3rd Respondent’s grounds primarily speak to issues that would require this Court to probe the facts of the case to establish whether the Constitutional Petition threshold has been met as was stated in the ***Anarita Karimi Njeru*** Case and whether there is proof of any constitutional violations. This disqualifies those grounds as issues of law. 5. Further, the 3rd Respondent raised issue with the Petitioner’s challenge of the 1st Respondent’s the Public Service Commission (PSC) advertisement dated 30th March 2023 inviting applications for the positions of Governor and Deputy Governor of the Central Bank of Kenya on the basis that it interferes with the constitutional autonomy of Central Bank. This implies a jurisdictional issue under Article 231 of the Constitution which states that: ***231. Central Bank of Kenya*** 1. ***There is established the Central Bank of Kenya.*** 2. ***The Central Bank of Kenya shall be responsible for formulating monetary policy, promoting price stability, issuing currency and performing other functions conferred on it by an Act of Parliament.*** 3. ***The Central Bank of Kenya shall not be under the direction or control of any person or authority in the exercise of its powers or in the performance of its functions.*** 4. ***Notes and coins issued by the Central Bank of Kenya may bear images that depict or symbolise Kenya or an aspect of Kenya but shall not bear the portrait of any individual.*** 5. ***An Act of Parliament shall provide for the composition, powers, functions and operations of the Central Bank of Kenya.*** 6. This Court’s understanding of the autonomy mentioned under sub-Article 3 above is that it applies to the functions and powers of the 3rd Respondent which are outlined under Sections 4 of the Central Bank of Kenya Act. This in particular provides that the principal object of the Bank shall be to formulate and implement monetary policy directed to achieving and maintaining stability in the general level of prices. The issue of recruitment of the Governor and Deputy Governor of Central Bank positions under Sections 13, 13B and 13C does not fall under the purview of the functions of the Bank as outlined in Sections 4 and 4A. Those are the functions of the 1st Respondent herein, and is what is being challenged based on the qualification or disqualification criteria set out in Section 14 of the Act. 7. While the 3rd Respondent’s objection raises fundamental legal questions regarding the presumption of constitutionality and Chapter Six requirements, evaluating whether statutory exclusions are proportionate requires assessing factual contexts and the purpose of the CBK Act. Thus, the Preliminary Objection in this case cannot operate as an absolute threshold bar to jurisdiction because it is grounded on facts inextricably linked to the substantive evaluation of the Petition. 8. My conclusion on this is that, the Preliminary Objection herein does not lie and fails to find merit. It is accordingly dismissed. 9. ***Whether the challenge against the Advertisement dated 30th March 2023 has been rendered moot by virtue of the recruitment being allowed to proceed in the absence of conservatory orders.*** 10. The 3rd Respondent claimed that the advertisement dated 30th March 2023 issued by the Public Service Commission for the positions of Governor and Deputy Governor had already achieved its purpose, leading to appointments published via ***Gazette Notice: Vol. CXXV – No. 134* dated *13th June 2023*.** In their submissions, Counsel for the 3rd Respondent explicitly argues that based on these completed appointments, the Petition has been rendered academic and moot. Relying on ***Kenya National Examinations Council v. Republic ex parte Geoffrey Gathenji Njoroge & 9 others*,** Counsel argues that reviewing or quashing an advertisement that has already been fully executed would be an exercise in futility. 11. I have considered thee provisions of Articles 23 (1) of the Constitution which provides: - ***23. Authority of courts to uphold and enforce the Bill of Rights*** 1. ***The High Court 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.*** 2. Further, Article 165 sets out this Court’s jurisdiction. In particular, Article 165 (3)(d)(i) provides: - 3. ***Subject to clause (5), the High Court shall have—*** ***(d) jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—*** ***(i) the question whether any law is inconsistent with or in contravention of this Constitution;*** ***(ii) the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;*** 1. This Court’s jurisdiction under Articles 23(1) and 165 (3) (d) to determine constitutional consistency cannot be ousted merely because the impugned process has been concluded. The fact that appointments were gazetted does not strip the Court of its power to review whether the underlying advertisement, recruitment, or statutory provisions are unconstitutional. 2. Constitutional adjudication is not rendered moot by subsequent administrative acts, because the Court retains its inherent authority to scrutinize and declare past actions invalid, set aside unconstitutional appointments and issue consequential orders to restore legality. Unlike ordinary disputes where futility may bar relief, constitutional jurisdiction is non‑negotiable. Once an aggrieved party invokes constitutional reliefs, the Court must pronounce itself on alleged violations to safeguard the supremacy of the Constitution, even if the challenged process has already been executed. 3. For these reasons, I find that the Petition in itself is not moot because this Court is still required to determine the constitutionality of the impugned provisions. 4. ***Whether the Petition meets the threshold of pleading precision required in constitutional litigation.*** 5. The threshold for constitutional petitions was established in the case of **Anarita Karimi Njeru v Republic (1976) Republic [1979] eKLR and reaffirmed in Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5 others [2013] eKLR** thus: - ***“42. 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. What Jessel, M.R said in 1876 in the case of Thorp v Holdsworth (1876) 3 Ch. D. 637 at 639 holds true today:*** ***The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules…was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues, and thereby diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.”*** ***43…….*** ***44. We wish to reaffirm the principle holding on this question in Anarita Karimi Njeru (supra). In view of this, we find that the petition before the High Court did not meet the threshold established in that case. At the very least, the 1st respondent should have seen the need to amend the petition so as to provide sufficient particulars to which the respondents could reply.”*** 1. The above case sets the principle that a party seeking constitutional relief must state with reasonable clarity the provisions infringed and the manner in which they are violated. 2. **Rule 10 Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013** is a true reflection of this principle. It stipulates that: - ***10. Form of petition*** 1. ***An application under rule 4 shall be made by way of a petition as set out in Form A in the Schedule with such alterations as may be necessary.*** 2. ***The petition shall disclose the following—*** 3. ***the petitioner’s name and address;*** 4. ***the facts relied upon;*** 5. ***the constitutional provision violated;*** 6. ***the nature of injury caused or likely to be caused to the petitioner or the person in whose name the petitioner has instituted the suit; or in a public interest case to the public, class of persons or community;*** 7. ***details regarding any civil or criminal case, involving the petitioner or any of the petitioners, which is related to the matters in issue in the petition;*** 8. ***the petition shall be signed by the petitioner or the advocate of the petitioner; and*** 9. ***the relief sought by the petitioner.*** 10. Turning to the present petition, I note that the Petitioner alleges that Sections 13, 13B, 13C, and 14 of Cap. 491 are unconstitutional because they discriminate against financial specialists, in violation of Articles 27, 41, and 47 of the Constitution. 11. The 1st Respondent, the Public Service Commission, argued that the Petitioner merely cited constitutional and statutory provisions without setting out violations with the precision required under ***Anarita Karimi Njeru v. Republic,*** arguing that the pleadings are speculative, based on conjecture and misapprehension and therefore lack a solid factual foundation. In their submissions, they emphasize that the Petitioner failed to demonstrate the manner of violation as reaffirmed in *Communications Commission of Kenya v. Royal Media Services Limited*. 12. The 2nd Respondent, the Attorney General, similarly contends that the Petition is defective because the Petitioner did not demonstrate with precision how the 1st – 3rd Respondents violated any constitutional or statutory mandate during the recruitment process. They assert that the Petition is vague and fails to establish a nexus between the alleged violations and the actions of the Respondents. 13. The 3rd Respondent, the Central Bank of Kenya, raised a preliminary objection and further argued that the Petition is an abuse of process as it does not set out constitutional violations with reasonable precision, contrary to ***Anarita Karimi Njeru* and *Mumo Matemu*.** In their replying affidavit and submissions, the CBK contended that the Petitioner failed to show how the statutory framework or recruitment process infringes Articles 27, 41, or 47 of the Constitution and said that the Petition lacks specificity and does not meet the constitutional pleading standard. 14. The 4th Respondent, the National Assembly, argues that the Petition fails to comply with *Rule 10(2) of the Constitution (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013,* which requires precise identification of infringed rights and injury caused. In its submissions, the National Assembly underscores that the Petitioner did not plead with precision the specific constitutional provisions infringed, the areas of contention, or the nature of the injury suffered, referencing **Anarita Karimi Njeru, Mumo Matemu and Thorp v. Holdsworth** to in support of the argument. 15. Having perused the amended Petition, I note that the Petitioner cited several constitutional provisions of the Constitution. However, he fails to demonstrate with factual specificity how he himself or any distinct class of persons were directly aggrieved or subjected to arbitrary injury. The Petition references *Articles 27, 41, and 47* then links them to *Sections 13, 13B, 13C,* and *14 of the Central Bank of Kenya Act* and the advertisement of 30th March 2023, but it fails to demonstrate with reasonable particularity the specific injury suffered, the exact group or individuals affected and the precise manner in which the alleged discrimination or violation occurred. The Petitioner merely states in a generalized manner at paragraphs 8 and 9 of the Petition that: ***8.The Petitioner's claims against the Respondents' advertisement elaborate are the callous manner in which the advertisement by the 1" Respondent was made expressly discriminating, and alienating a large pool of highly qualified professional candidates that fit the advertised roles.*** ***9.The Petitioner's further claim against Respondent's unconstitutional, discriminatory and designed application of the Law in the adverts is the possibility of the Respondents having preferred candidate/s of choice for the said advertised positions*** 1. How the advertisement alienated a ‘large pool of highly qualified professional candidates’ that fit the advertised roles or how the said advert leaves room for the respondents to have a preferred candidate of choice for the said advertised positions is not clearly spelt out in the petition. It is not known to this Court which people comprise this **‘large pool’ of highly qualified professional candidates.** There is also no evidence adduced at all of people who were aggrieved by the said recruitment on account of its allegedly discriminatory advertisement. 2. Even the alleged violation of the Public Service Commission Act by advertising on the 1st Respondent’s website is vaguely stated by the petitioner as follows in Part C of the petition: ***When advertising for vacancies in the office of the Governor, and Deputy Governor on the 1t Respondent's advert on their website, is that it directly contravenes Article 21(1) of the Constitution of Kenya, 2010, which provides that it is a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights.*** ***Therefore, the statute in Sections 13 & 14 grossly contradict the superior law of the land in Article 27 of the Constitution of Kenya, 2010,*** 1. I find that mere assertion that statutory criteria exclude certain professionals without demonstrating how those exclusions lack rational justification or who the actual professionals are, falls short of the rigorous pleading threshold required to overturn parliamentary enactments. I Further find the Petitioner’s grievances to be broad, speculative and unsupported. 2. I therefore find that the Petition does not meet the constitutional litigation threshold in ***Anarita Karimi Njeru* and *Mumo Matemu,*** is deficient of reasonable precision in identifying the constitutional violations and the manner of such infringement. 3. That said, I shall proceed to consider and determine in detail, the question of whether the cited sections of the Central Bank of Kenya Act are unconstitutional, null and void as alleged. 4. ***Whether Sections 13, 13B, 13C, and 14 of the Central Bank of Kenya Act (Cap. 491) are unconstitutional.*** 5. It is a foundational principle of constitutional interpretation that every statute enacted by Parliament carries a presumption of constitutionality. This was aptly explained in **Ndyanabo vs. Attorney General (2001) 2 EA 485** in which Hon. Chief Justice Samatta stated as follows: - ***“....Thirdly; until the contrary is proved, a legislation is presumed to be Constitutional. It is a sound privilege of Constitutional construction that, if possible, a legislation should receive such a construction as will make it operative and not inoperative.*** ***Fourthly, since, as stated, a short while ago, there is a presumption of Constitutionality of legislation, the onus is upon those who challenge the Constitutionality of the legislation, they have to rebut the presumption.*** ***Fifthly where those supporting a restriction on a fundamental right rely on a claw back or exclusion clause in doing so, the onus is on them, they have to justify the restriction.”*** ***I am still persuaded by the above-mentioned principles of Constitutional interpretation. In the Bishop Joseph Kimani case, the court observed as follows: -*** ***“It is a very serious legal and Constitutional step to suspend the operation of statutes and statutory provisions. The courts must wade with care, prudence and judicious wisdom. For the High Court to grant interim orders in this regard, I think one must at the interlocutory stay actually show that the operation of the legislative provision are a danger to life and limb at that very moment.”*** ***…It is my view that the principle of presumption of Constitutionality of Legislation in imperative for any state that believes in democracy, the separation of powers and the Rule of Law in general. Further the courts to be able to suspend legislation during peace times where there is no national disaster or war, would in my view be interfering with the independence and supremacy of Parliament in its Constitutional duty of legislating law.”*** ***I think that I shall hold the said views and that legislation should only be impugned in any manner only where it has been proven to be unconstitutional, null and void. Conservancy orders to suspend operation of statutes, statutory provisions or even Regulations should be wholly avoided except where the national interest demand and the situation is certain.”*** 1. This doctrine posits that unless proved otherwise, statutes are deemed constitutional and valid and may only be nullified in the clearest of cases. The burden of proof lies squarely on the Petitioner to displace this presumption by cogent legal reasoning and evidence. 2. Article 231(5) of the Constitution grants Parliament its explicit mandate to enact the Central Bank of Kenya Act. It directs that: - ***(5). An Act of Parliament shall provide for the composition, powers, functions and operations of the Central Bank of Kenya.*** 1. The Petitioner’s grievance is that Section 14 of Cap. 491 disqualifies officers, directors, employees, or shareholders of institutions regulated by or operating within the financial sector and that this violates Article 27 on Equality and Freedom from Discrimination. Section 14 provides: - ***14. General disqualifications for all Board members*** 1. ***No person shall be appointed as Chairperson, Governor, Deputy Governor or a Director who is—*** 2. ***a member of the National Assembly or a member of a local authority established under the Local Government Act (Cap. 265);*** 3. ***a salaried employee of any public entity (except on a secondment basis);*** 4. ***a director, officer, employee, partner in or shareholder of any specified bank or specified financial institution:*** ***Provided that—*** 1. ***paragraph (b) shall not be applicable to the representative of the National Treasury; and*** 2. ***the President may in exceptional cases waive any of the above provisions with respect to any Director (other than the Governor or Deputy Governor) if it is in the interests of the Bank and likely to promote the objects of the Bank under section 4.*** 3. Article 27 provides for equality and non-discrimination. Article 27 (4) and (5) the Constitution provides that no person or State organ may directly or indirectly discriminate against another 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. 4. The Petitioner asserts that in setting out a disqualification criterion, the CBK Act and by extension the 1st Respondent are acting in violation of the Constitution. 5. I have examined the disqualification criteria and what stands out is that the members of the National Assembly and professionals holding positions in banking and financial institutions are explicitly excluded from seeking appointment in the role of Governor and Deputy Governor. 6. The rationale here is obvious. The Act is not openly or arbitrarily discriminating; instead, it is providing a differentiation. At the same time the alleged discrimination cannot be termed as unfair but is instead positive discrimination which is permissible in law. 7. In **John Harun Mwau v Independent Electoral and Boundaries Commission & another (Petition 26 of 2013) [2013] KEHC 6762 (KLR) (Constitutional and Human Rights) (1 November 2013) (Judgment),** where Lenaola J. *(as he then was)* explained that differentiation based on objective, rational criteria connected to a legitimate statutory objective does not constitute unconstitutional discrimination. He cited the South African Constitutional Court in the case of **Jacques Charl Hoffmann vs. South African Airways, CCT 17 of 2000,** where it was stated that: - ***“This court has previously dealt with challenges to statutory provisions and government conduct alleged to infringe the right to equality. Its approach to such matters involves three basic enquiries: first, whether the provision under attack makes a differentiation that bears a rational connection to a legitimate government purpose. If the differentiation bears no such rational connection, there is a violation of Section 9(1). If it bears such a rational connection, the second enquiry arises. That enquiry is whether the differentiation amounts to unfair discrimination. If the differentiation does not amount to unfair discrimination, the enquiry ends there and there is no violation of Section 9(3). If the discrimination is found to be unfair, this will trigger the third enquiry, namely, whether it can be justified under the limitations provision. Whether the third stage, however, arises will further be dependent on whether the measure complained of is contained in a law of general application.”*** 1. I have considered the role of the Central Bank of Kenya as established under Article 231 which is an independent authority tasked with formulating monetary policy, promoting price stability and regulating the banking sector. I have also considered the provisions of section 14(1)(c) of Cap. 491. In the view of this Court, that section is designed to prevent severe conflict of interest between regulators and regulated financial entities. 2. From the Act, the Governor and Deputy Governors’ roles are strategic to the core mandate of the Central Bank of Kenya such that if the person who is appointed at the helm of its leadership is affiliated to any banking or financial institution, then an obvious conflict of interest emerges where the said person is acting as a Regulator of those financial institutions. 3. Similarly, since a Governor and Deputy Governor nominee are appointed by the President with the approval of the National Assembly as provided for under Section 13 (1) of the Act, the restrictions in section 14 acts as safeguards of the integrity and independence of the recruitment process because Parliament is the body that vets and approves the nominee. Accordingly, allowing a sitting legislator to be considered for the post of Governor or Deputy Governor would create a clear conflict of interest, as the same institution would be vetting one of its own. 4. The legislature in enacting those provisions understood that a country’s money cannot be left vulnerable to the shifting winds of politics or the temptations of private entrepreneurs. That is why Section 14 exists, acting as an architectural blueprint for institutional integrity, ensuring that the Governor and Deputy Governor wake up every day with only one master to serve- the economic stability of Kenya. 5. Moreover, legislators are inherently political actors and permitting them to vie for the position risks politicizing the Central Bank, an institution whose credibility depends on neutrality, professionalism and insulation from partisan influence as set out in Article 231 (3) of the Constitution. By barring Members of Parliament or members of the County Assembly as the case may be, the Act ensures that the vetting process remains objective and that the leadership of the Central Bank is free from political affiliations that could compromise its constitutional mandate of maintaining monetary stability and financial integrity. 6. As earlier stated, regarding the restriction at section 14(1) (c), the provision is intended to prevent the Regulator from becoming the Regulated. thus, one cannot be the referee they own one of the teams. Section 14 disqualifies anyone who is a director, employee, or shareholder of a specified bank or financial institution. This is essential because, if a Governor held financial stakes in a private bank, human nature dictates that they might look the other way during an audit or favour their own financial interests. By cutting these ties completely, the law removes any suspicion of favouritism, ensuring the public can trust that all banks are policed fairly. 7. On the limitation under section 14 (1) (b), the law recognizes the power of divided focus**.** Managing a country’s entire financial apparatus is an exhausting, monumental task. The law prohibits the bank's leadership from holding any other salaried public or private jobs. This is the doctrine of ***singular dedication***. The law demands their full attention, ensuring their intellectual energy and loyalties are never split between competing responsibilities. 8. On the wisdom of proactive protection,it is not enough for an institution to be fair; it must *look* undeniably fair to the public. In this regard, Section 14 acts as a proactive firewall. Instead of waiting for a conflict of interest to happen and then asking a court of law to clean up the mess, the law closes the door before the trouble can walk in. It relies on objective rules of exclusion, completely eliminating the need to guess someone's hidden motives later on. 9. It is equally important to note that trust in itself is a currency and that ultimately, money relies entirely on trust. If Kenyans lose faith in the independence of the Central Bank, the value of the country’s currency and the stability of our markets collapse. Section 14 is the legal anchor that keeps Article 231 from becoming a hopeless theory. It keeps our financial leadership firmly rooted in neutrality, objective duty and public trust, thereby shielding the national economy from private capture and political whims. 10. On alleged discrimination of the impugned provisions, which discrimination was not substantiated, my finding is that this alleged discrimination by exclusion is positive because such disqualification is directly anchored in Chapter Six of the Constitution, specifically Article 73(2)(a) and (c) and Section 16 of the Leadership and Integrity Act which mandate that public appointments be made on the basis of personal integrity, competence and suitability, ensuring that decisions are free from conflict between personal interest and public duty. 11. My overall consideration of this issue is that in enacting the impugned provisions, Parliament acted in good faith to preserve the integrity of the recruitment process of Governor and Deputy Governor of Central Bank of Kenya and not to guard the personal interests of conflicted individuals. This Court finds that the limitations imposed by the impugned sections meets the test of reasonableness and proportionality under Article 24 of the Constitution. 12. Furthermore, preserving the integrity, objectivity and financial sector stability of the Central Bank far outweighs the private interests of individuals holding active public sector roles or equity in financial institutions who wish to serve simultaneously as regulators. 13. Additionally, it is not lost to this Court that there is no challenge to section 5 of the Employment Act which stipulates, inter alia, that: ***5(4) It is not discrimination to—*** ***(a) take affirmative action measurers consistent with the promotion of equality or the elimination of discrimination in the workplace;*** ***(b) distinguish, exclude or prefer any person on the basis of an inherent requirement of a job;*** 1. Consequently, it is my finding that there is no evidence adduced by the Petitioner to demonstrate the manner in which the impugned provisions directly, unfairly and or negatively discriminate against the alleged large pool of professionals in the recruitment of Governor and Deputy Governor of the Central Bank of Kenya. The Petitioner has also failed to displace the presumption of constitutionality attaching to Sections 13, 13B, 13C, and 14 of the Central Bank of Kenya Act, Cap. 491. I find the impugned sections to be constitutionally sound. 2. As I conclude, I am well aware of the recent Supreme Court’s decision in the case of **Moi Teaching and Referral Hospital & 3 others v Gikenyl & 74 others (Petition E030 & E033 of 2025 (Consolidated)) [2026] KESC 50 (KLR) (Civ) (3 July 2026) (Judgment)**where the apex Court held that ELRC has the jurisdiction to hear and determine pre-employment disputes but nonetheless found that the High Court which was seized of the matter had jurisdiction to hear and determine the petition before it stating: ***“75…..The dispute as presented and prosecuted was clearly not one of private law between an employer and employee, but one implicating a contest in the public law regime between citizens and state organs concerning alleged constitutional violations. Those questions could and can only be properly raised for determination before the High Court under Article 165(3)(b) and (d) of the Constitution.”*** 1. In the present petition, the petitioner describes himself as a human rights defender. The petition was brought in the public interest and not between employee and employer but one implicating a contest in the public law regime citizens and state organs concerning alleged constitutional violations. In the end, I find that this Court has jurisdiction to hear and determine the Petition as presented. 2. Taking into account all the matters discussed above, the amended Petition dated 17th April, 2023 is found to be devoid of merit. It is hereby dismissed. 3. Each party to bear their own costs. **Dated, Signed & Delivered virtually at Nairobi this 18th Day of August, 2026** **R.E. ABURILI** **JUDGE**