The case—Petition E202 of 2024—was heard against a backdrop of growing scrutiny of public appointments in Kenya. ./FILEIn a landmark ruling issued on Thursday, May 29, 2025, the Employment and Labour Relations Court in Nairobi declared a series of senior promotions within the Office of the Attorney General unconstitutional, citing violations of the constitution and public service regulations.
Justice Byram Ongaya found that the appointments of Senior Deputy Solicitor General and other top state counsel positions—made without competitive processes—violated Articles 10, 27, 41, 232, and 234 of the constitution, as well as provisions of the Public Service Commission (PSC) Act and related regulations.
The case was filed by Dr Magare Gikenyi, Dishon Keroti Mogire, and Philemon Abuga Nyakundi seeking nullification of some 227 appointments and promotions in the AG's office.
The petition challenged the promotions announced via a memo from the Solicitor General dated November 26, 2024, based on a decision by the Advisory Board meeting chaired by the Attorney General on October 17, 2024.
Justice Ongaya stated, “The court is satisfied that the petitioners have established that the promotions were not subjected to any competitive process. There was no call for applications, no shortlisting, no interviews and no evaluation.”
The petitioners argued that the promotions lacked transparency and failed to reflect ethnic, gender, and regional diversity.
Of the 15 individuals promoted, 12 were women and nine hailed from the same ethnic community—raising concerns of bias.
The respondents—the Attorney General, the Solicitor General, and the Public Service Commission—defended the process as necessary for succession management, citing long periods of stagnation and acting appointments, some exceeding seven years.
However, the court found this reasoning insufficient.
“Succession management is not a licence to violate constitutional principles. The constitution demands fairness, competition, and merit in public appointments,” the judge ruled.
On December 12, 2024, the petitioners filed the case, seeking to quash the promotions and halt any further non-competitive appointments.
The court granted multiple declarations, including an order nullifying the promotions, preventing implementation of the impugned appointments and compelling future appointments to be competitive and merit-based.
“This court is obligated to uphold constitutionalism and the rule of law. Public appointments must reflect national values, and no public office is exempt from this obligation,” Justice Ongaya ruled.
In a significant constitutional finding, the judge also declared as null and void the amendments introduced through the Statute Law (Miscellaneous Amendments) Act No. 3 of 2024, which had transferred some PSC powers to the Attorney General’s office.
The judge found that the amendments were made without public participation and amounted to an unconstitutional usurpation of PSC’s mandate.
“The amendments undermined the independence and constitutional authority of the Public Service Commission, which is not permissible,” ruled Justice Ongaya, emphasising that delegation of PSC powers must comply with Article 234(5) of the Constitution.
The ruling mandates that within one month from May 29, 2025, the Office of the Attorney General must develop and submit human resource management instruments to the PSC for approval.
The PSC was also ordered to investigate personnel practices in the Attorney General’s Office and report back to the court within three months.
"Each party to bear own costs of the proceedings," Justice Ongaya concluded.
The case—Petition E202 of 2024—was heard against a backdrop of growing scrutiny of public appointments in Kenya.
The judgment is likely to have far-reaching implications across government institutions.
