Ngutari & 5 others v Okello. & 5 others (Civil Appeal E081 & E165 of 2021 (Consolidated)) [2025] KECA 505 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that the Judicial Service Commission, not Cabinet Secretaries, must appoint members of tribunals like the Business Premises Rent Tribunal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Business Premises Rent Tribunal is a local tribunal under Article 169(1)(d) of the Constitution and therefore a subordinate court
- 2.Whether the presiding officers of such local tribunals are judicial officers under Article 260 of the Constitution
- 3.Whether the Judicial Service Commission, rather than the Cabinet Secretary, is empowered to appoint members of the Tribunal
- 4.Whether the appointments complied with Articles 10, 47 and 232 of the Constitution and section 10 of the Public Service (Values and Principles) Act on fair competition and merit
- 5.Whether the composition of the Tribunal breached the two-thirds gender principle and whether progressive realisation applies to appointive positions
- 6.Whether the relief granted by the trial court, quashing the Gazette Notice and consequential actions, was appropriate relief under Article 23 of the Constitution
Key legal issues
#Status of the Business Premises Rent Tribunal under the Constitution
It is a local tribunal under Article 169(1)(d) and therefore a subordinate court
Reading Articles 1(3), 159, 162 and 169 holistically, the Court held that apart from superior courts, independent tribunals and tribunals established by or under the Constitution, any court or local tribunal established by an Act of Parliament is a subordinate court. Section 7 of the Sixth Schedule requires pre-existing laws to be construed to conform to the Constitution, so the distinction between tribunals existing at promulgation and later ones is untenable.
Appointing authority for members of local tribunals
The Judicial Service Commission, not the Cabinet Secretary
Presiding officers of local tribunals fall within the Article 260 definition of judicial officer. Under Article 172(1)(c) and section 32 of the Judicial Service Act, the Commission appoints judicial officers. Executive appointment of members of local tribunals contravenes separation of powers and Article 50(1). The pending Tribunals Bill itself contemplates appointment by the Commission.
Fair competition, merit and public participation in the recruitment
The recruitment process was unconstitutional for lack of fair competition and transparency
The Ministry relied solely on curricula vitae from its internal database of past applications and candidates it considered qualified. This denied qualified persons who had since developed interest or qualification an opportunity, failing Articles 10 and 232 of the Constitution and section 10 of the Public Service (Values and Principles) Act, and sidestepping public participation.
Two-thirds gender rule in appointive positions
Breached by appointing only one woman of five; progressive realisation does not apply to appointments
The appellants produced no evidence on the composition of courts and tribunals hearing land and environmental matters to support their aggregate-composition argument. The Court endorsed the position that Article 27(8) must be realised immediately in appointive positions, adopting a purposive interpretation of the constitutional guarantee.
Appropriate relief and structural interdict
The quashing of 'consequential actions' was not appropriate relief; the Court set aside that part and directed a supervised transition
The appointees had already made decisions affecting the public and their qualifications were unchallenged. Nullifying their decisions wholesale would expose the public to chaos. Borrowing from Mitu-Bell, the Court crafted a structural interdict: transition of the Tribunal to the Judiciary under the supervision of the ELRC, with progress reports within three months.
Effect of parties' positions in constitutional litigation
A court is not bound by the parties' positions or consents in constitutional interpretation, which proceeds in rem
The Judicial Service Commission supported the appeal, disclaiming any mandate to appoint Tribunal members. The Court held that constitutional interpretation is not in personam; judgments in rem bind the whole world, so an organ cannot evade a constitutional obligation by abdicating or posturing that the mandate lies elsewhere.
Legal principles established
#- Tribunals established by an Act of Parliament exercising judicial or quasi-judicial powers are local tribunals under Article 169(1)(d) and are subordinate courts that must be transitioned to the Judiciary
- Members of local tribunals under Article 169(1)(d) are judicial officers under Article 260 and must be appointed by the Judicial Service Commission under Article 172(1)(c)
- In constitutional interpretation, the court is not bound by positions or consents taken by parties, including by a state organ abdicating its mandate
- Public appointments must be made through an open, competitive, merit-based process; reliance on internal databases of past applicants falls short of Articles 10 and 232 and section 10 of the Public Service (Values and Principles) Act
- The two-thirds gender principle applies immediately to appointive positions; progressive realisation is available only for elective positions
Court orders
#- 1.The appeal was dismissed
- 2.The order quashing the decisions made by the 1st to 4th appellants was set aside
- 3.The Cabinet Secretary (or its successor, the Attorney General) and the Judicial Service Commission were directed to set in motion the process of transitioning the Business Premises Rent Tribunal to the Judiciary, if not already transitioned
- 4.A report on the progress of the transition to be filed with the Employment and Labour Relations Court within 3 months, which court shall give further orders on the process and progress of the transition
- 5.No order as to the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court, Nairobi
- Petition Nos. 99 and 100 of 2020 (consolidated)
- Jurisdiction invoked
- Appeal to the Court of Appeal from the Employment and Labour Relations Court; the specific constitutional or statutory provision is not stated in the judgment
- Consolidated with
- Civil Appeal No. E165 of 2021
Relief refused
#Allowance of the appeal and reversal of the trial court's judgment
The Court found that local tribunals under Article 169(1)(d) are subordinate courts whose members must be appointed by the Judicial Service Commission; executive appointment contravened separation of powers
Suspension of the effect of the judgment to avoid chaos in the Tribunal (as sought by the 3rd respondent)
The Court instead tailored relief by setting aside the quashing of decisions already taken while directing a supervised transition
Costs
There will be no order as to the costs of this appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Notwithstanding whether the Tribunals Bill will be enacted into an Act of Parliament, we return the verdict that it is the Judicial Service Commission that is empowered to appoint the members of the Tribunal.
Being a subordinate court, it must be transited to the judiciary.
In our view, whereas the principle of progressive realisation may be invoked in elective positions, there is no justification for invoking it in appointive positions.
While we therefore dismiss the appeal, we set aside the order quashing the decisions made by the 1st to the 4th appellants and direct the 5thand 6th appellants jointly with the 4th respondent
There will be no order as to the costs of this appeal.
Issues in the judgment
#The disposition refers to 'the 5th and 6th appellants' when directing the transition process, but the Cabinet Secretary is the 5th appellant and the 6th person is the 6th respondent (chairman); this appears to be a drafting error, as elsewhere the 6th person is a respondent.
The judgment inconsistently attributes the decision below, referring in one passage to 'the High Court' when the decision was that of the Employment and Labour Relations Court.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Nabakhwana Co-operative Society Ltd v Lois Holdings Ltd & 2 others (Environment and Land Case E058 of 2025) [2026] KEELC 2745 (KLR)[2026] KEELC 2745 (KLR)6 May 2026applied
- Parliament of Kenya & another v Okoiti & 2 others[2026] KESC 28 (KLR)31 Mar 2026
Cite this brief
#Cite this brief
Caselaw, "Ngutari & 5 others v Okello. & 5 others (Civil Appeal E081 & E165 of 2021 (Consolidated)) [2025] KECA 505 (KLR)", Case Analysis (2025). Civil Appeal No. E081 of 2021 (lead file), consolidated with Civil Appeal No. E165 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/505/eng@2025-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.