Gikenyi B & 2 others v Attorney General & 4 others; Mwangi & 225 others (Interested Parties) (Petition E202 of 2024) [2025] KEELRC 1575 (KLR)
The bottom line
#Kenya's Employment Court invalidated promotions in the Attorney General's office and struck down a 2024 law that had stripped the Public Service Commission of its oversight powers.
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 court has jurisdiction to determine the petition, including the constitutionality of the impugned statute
- 2.Whether the amendment of the Office of the Attorney General Act by the Statute Law (Miscellaneous Amendments) Act No 3 of 2024, which transferred some powers of the Public Service Commission to the Office of the Attorney General, is unconstitutional, null and void
- 3.What remedies flow from the findings
Key legal issues
#Jurisdiction of the ELRC over the petition and the constitutionality of a statute
The court has jurisdiction, relying on the Supreme Court's decision in Kenya Tea Growers Association v NSSF that the ELRC may determine constitutional validity of a statute lying at the centre of an employment dispute
The 1st, 2nd and 4th respondents' preliminary objection that the court cannot pronounce on the legality of statutes was described as a 'tired preliminary point' and appears abandoned. Guided by the Supreme Court in Kenya Tea Growers, the court held that within its article 162(2)(a) jurisdiction, the ELRC is not precluded from determining constitutional validity of a statute at the centre of the dispute, otherwise it would be 'jurisdictionally hum-strung'.
Constitutionality of the Statute Law (Miscellaneous Amendments) Act No 3 of 2024 amendments
The amendments were unconstitutional on two grounds: inadequate public participation, and purpose and effect that undermined the PSC's constitutional mandate and independence
Following Omtatah Okoiti v Communications Authority, miscellaneous amendment Bills are reserved for minor non-controversial amendments; these were highly controversial and substantive. Public participation fell short of the British American Tobacco framework - the SRC received only one day's notice and the Committee failed to resolve the PSC's serious objections. The amendments also proceeded on the false premise that the Attorney General's office was an independent office under Chapter 15, and blurred the roles of the Advisory Board and the Attorney General free of oversight.
Legality of the impugned promotions by the Advisory Board
The promotions were unconstitutional and irregular - conducted without advertisement, competition, interviews or Commission-approved instruments, and in one case into a non-existent post
The court found the respondents completely disregarded the PSC's constitutional powers by promoting officers without advertisement or meritorious competitive interviews, contrary to article 232, the PSC Act 2017 and Regulations 2020, and appointed an officer to a non-existent post of Senior Deputy Solicitor General. The Advisory Board also usurped the Attorney General's statutory power to effect promotions under section 21 of the Office of the Attorney General Act.
Legal principles established
#- The ELRC has jurisdiction to determine constitutional validity of a statute where the dispute falls within its employment and labour relations jurisdiction
- Omnibus statute law miscellaneous amendments must be confined to minor, non-controversial, house-keeping amendments; substantive or controversial amendments cannot be smuggled through that procedure
- Public participation in legislation must be real, purposive and meaningful, with reasonable notice and opportunity; the onus lies on the public entity
- A statute's constitutionality is assessed by its purpose and effect
Court orders
#- 1.Declaration that the actions of the 1st and 2nd respondents in respect of the impugned promotions violated articles 10, 27, 41, 47, 232, 234(2) of the Constitution, sections 36 and 37 of the Public Service Commission Act, 2017 and regulations 16, 17, 18 and 20 of the PSC Regulations, 2020
- 2.Declaration that all appointments and promotions in the Office of the Attorney General must be based on fair competition and merit, gender balance and ethnic and regional balance
- 3.Declaration that human resource functions in the Office of the Attorney General must be based on instruments approved by the Public Service Commission under article 234(2)
- 4.Declaration that the advisory board established under section 20A of the Office of the Attorney General Act has no legal authority to appoint or promote persons to the specified grades
- 5.Declaration that the Advisory Board usurped the statutory function vested in the Attorney General
- 6.Declaration that the entire promotion process communicated by memo dated November 26, 2024 is unconstitutional, irregular, null and void
- 7.Judicial review order of certiorari quashing the advisory board's promotion decision communicated on or around November 26, 2024
- 8.Judicial review order of prohibition restraining the 1st, 2nd and 4th respondents from implementing the advisory board's decision
- 9.Judicial review order of certiorari quashing all letters of promotion issued to the interested parties
- 10.Declaration that respondents shall undertake competitive, merit-based promotions based on Commission-approved human resource instruments
- 11.Direction that the Public Service Commission investigate, monitor and evaluate the organisation, administration and personnel practices in the Office of the Attorney General and report to court by December 31, 2025
- 12.Direction that the 1st, 2nd and 4th respondents conclude recommendations on human resource management instruments within one month and submit them to the Commission
- 13.Declaration that the amendment of the Office of the Attorney General Act by the Statute Law (Miscellaneous Amendments) Act 2024 transferring some PSC powers is unconstitutional, null and void
- 14.Declaration that the Commission may issue instructions and regulations for delegated powers, including proposing statutory amendments
- 15.Declaration that the Commission should within three months resolve the promotional plight of affected officers
- 16.Each party to bear own costs of the proceedings
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 162(2)(a) and 165(5)(b) of the Constitution and section 12(2) of the Employment and Labour Relations Court Act
Relief refused
#Judicial review order of mandamus compelling the 3rd respondent (PSC) to assist in training the 1st respondent's staff on recruitment and promotion processes
The petitioners did not demonstrate that they had demanded such training and the Commission had declined or neglected to act
Prayer to revoke the approval letter dated around March 18, 2023 (ref no PSC/EMCS/19/(15))
Not included in the final orders ultimately granted by the court
Costs
Each party to bear own costs of the proceedings.
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.
Accordingly, the court has jurisdiction to hear and determine the dispute about the exercise of human resource functions with respect to employees of the Ofice of the Attorney General and as per impugned decisions in the instant petition including whether the statutory provisions under which the impugned appointments or promotions have been made is unconstitutional.
In my view an amendment that has an impact on either the letter or the spirit of the Constitution however remotely cannot be termed as "minor non-controversial and generally house-keeping amendments."
the petitioners have established that the purported public participation did not meet the tests set by the Supreme Court in British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 others Petition No 5 of 2017.
The court finds that the impugned promotions proceeded upon no or against current Commission's approved human resource instruments – such as organizational structures and as urged for the 3rd respondent.
The court finds as valid the petitioners' lamentation that the Advisory Board had usurped the Attorney General's statutory power to efiect the impugned promotions in exercise of purported power to appoint in section 21 of the Office of the Attorney General Act.
The declaration be and is hereby issued that the amendment of the Ofice of Attorney General Act vide Statute Law (Miscellaneous Amendments) Act 2024 Act No 3 of 2024 which transferred some powers of the 3rd respondent (PSC) to the Ofice of Attorney General is unconstitutional, null and void.
The judicial review order of certiorari is hereby issued quashing the decision of the advisory board communicated vide the internal memo from the Solicitor General dated on or around November 26, 2024
Each party to bear own costs of the proceedings.
Issues in the judgment
#The judgment gives inconsistent dates for the advisory board meeting that approved the promotions, alternating between October 17, 2024 and 'November 17, 2024' / 'October 17, 2014'
The internal memo communicating promotions is dated November 26, 2024 in most passages but referred to as November 6, 2024 in one passage
The period given to the Commission to resolve the promotional plight of affected officers is stated as six months in the body of the judgment but three months in the final orders
The case number of the petition before the court is not stated anywhere in the judgment text provided
The 5th respondent's submissions describe the Bill as 'Statute Law (Miscellaneous Amendments) (No.) Bill (National Assembly Bill No 68 of 2024)' while elsewhere it is 'Bill No 68 of 2023'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gikenyi B & 2 others v Attorney General & 4 others; Mwangi & 225 others (Interested Parties) (Petition E202 of 2024) [2025] KEELRC 1575 (KLR)", Case Analysis (2025). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1575/eng@2025-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.