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Supreme CourtPartially AllowedPetition E042 of 2024· [2026] KESC 5 (KLR)

Benjamin v Attorney General & 55 others

Supreme Court of Kenya
23 January 2026
8,635 words in judgment
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AI-assisted case brief
·~35 min to read original · ~4 min brief

The bottom line

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Supreme Court: Courts can hear constitutional challenges to presidential appointments even if a statutory objection process exists.

What this practically means

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The Supreme Court ruled that Dr. Magare Gikenyi J. Benjamin could challenge the President's appointment of 51 Principal Secretaries directly in court, without first using Parliament's objection process. The Court found that the statutory mechanism only allows contesting individual nominees' suitability, not broader constitutional issues like gender balance and ethnic diversity. Since Dr. Magare's case raised constitutional questions about Articles 10, 27, 73, 75, and 232, the lower courts wrongly blocked his petition on procedural grounds. The case now continues in the Employment and Labour Relations Court.

Executive summary

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The appellant, Dr. Magare Gikenyi J. Benjamin, challenged the appointment of 51 Principal Secretaries and one Principal Administrative Secretary by the President, arguing that the appointments violated constitutional requirements for gender balance and ethnic, regional, and cultural diversity under Articles 10, 27, 73, 75, and 232 of the Constitution. The Employment and Labour Relations Court (ELRC) struck out his petition on a preliminary objection, holding that he had failed to exhaust the statutory mechanism under Section 6(9) of the Public Appointments (Parliamentary Approval) Act, which allows persons to submit evidence contesting the suitability of nominees before Parliament. The Court of Appeal upheld that decision. On a second appeal to the Supreme Court, the Court first affirmed its jurisdiction under Article 163(4)(a), finding that the appeal involved the interpretation and application of the Constitution. On the merits, the Supreme Court held that the lower courts misapplied the doctrine of exhaustion. It distinguished the case from Albert Chaurembo Mumba & 7 Others v Maurice Munyao & 148 Others, noting that the doctrine is not a blanket bar. Relying on Nicholus Abidha v Attorney General & 7 others, the Court found that the appellant's challenge went beyond the suitability of individual nominees and raised broader constitutional questions about adherence to the two-thirds gender principle and equitable representation. The statutory mechanism under Section 6(9) was inadequate to address these issues. Therefore, the appellant was entitled to access the courts. However, the Court declined to remit the petition to the ELRC for determination on merit, noting that there were ongoing proceedings before the ELRC, including Petition No. E513 of 2022, which directly touched on the same issues. The Court allowed the appeal partially, declaring that the lower courts misapplied the doctrine of exhaustion, but let the pending proceedings take their course. Each party was ordered to bear its own costs, and the security for costs was directed to be refunded to the appellant.

Key legal issues

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01

Whether the Supreme Court has jurisdiction under Article 163(4)(a) to hear the appeal.

Holding

The Supreme Court has jurisdiction because the appeal concerns the interpretation and application of the Constitution, specifically Articles 10, 27, 73, 75, and 232, which were consistently at issue in the superior courts below.

Reasoning

The Court applied the principles from Nduttu & 6000 others v Kenya Breweries Ltd and Rutongot Farm Ltd v Kenya Forest Service, requiring that the constitutional provisions be a consistent and pivotal issue throughout the proceedings. The appellant's petition challenged the appointments for failing to reflect gender balance and ethnic, regional, and cultural diversity as demanded by the cited constitutional articles. Although the lower courts decided the matter on procedural grounds (exhaustion and justiciability), the constitutional questions were the gist of the dispute and were canvassed below. Therefore, the appeal meets the threshold under Article 163(4)(a).

02

Whether the superior courts below properly applied the doctrine of exhaustion and the doctrine of non-justiciability.

Holding

The superior courts below misapplied the doctrine of exhaustion. The appellant's challenge to the overall composition of the appointees on constitutional grounds could not have been effectively ventilated through the statutory mechanism under Section 6(9) of the Public Appointments (Parliamentary Approval) Act, which only allows contesting the suitability of individual nominees.

Reasoning

The Court distinguished the present case from Albert Chaurembo Mumba & 7 Others v Maurice Munyao & 148 Others, noting that the Chaurembo case should not be applied as a blanket bar. Relying on Nicholus Abidha v Attorney General & 7 others, the Court held that the availability of an alternative remedy does not necessarily bar constitutional relief if the alternative is inadequate. Here, the appellant's grievances were about the overall failure to meet constitutional diversity requirements, not the suitability of any particular candidate. The statutory mechanism under Section 6(9) was inadequate to address these broader constitutional questions. Therefore, the appellant was entitled to approach the courts, and the lower courts erred in striking out the petition on exhaustion grounds.

Legal principles established

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  • The doctrine of exhaustion is not a blanket bar; courts can hear cases where alternative remedies are inadequate for constitutional violations.
  • Constitutional challenges to appointments that question overall compliance with diversity requirements are justiciable, not just individual suitability.
  • The Public Appointments (Parliamentary Approval) Act's Section 6(9) mechanism is inadequate for addressing systemic constitutional issues like the two-thirds gender rule.
  • The Supreme Court has jurisdiction under Article 163(4)(a) when constitutional interpretation is a consistent and pivotal issue throughout proceedings.
  • Courts must not apply the Albert Chaurembo Mumba precedent as a blanket bar to constitutional relief when alternative remedies are insufficient.

Court orders

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  1. 1.The Petition dated 10th December, 2024 and filed on 14th March, 2025 partially succeeds to the extent that we find that the superior courts below (ELRC & Court of Appeal) misapplied the doctrine of exhaustion in striking out and/or upholding the striking out of the appellant’s petition.
  2. 2.Each party will bear their own costs of the appeal.
  3. 3.We hereby direct that the sum of Kshs. 6,000 deposited as security for costs upon lodging of this appeal be refunded to the appellants.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 1
  • Constitution of Kenya, 2010Article 3
  • Constitution of Kenya, 2010Article 10
  • Constitution of Kenya, 2010Article 22
  • Constitution of Kenya, 2010Article 23
  • Constitution of Kenya, 2010Article 27
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 73
  • Constitution of Kenya, 2010Article 75
  • Constitution of Kenya, 2010Article 119(1)
  • Constitution of Kenya, 2010Article 131
  • Constitution of Kenya, 2010Article 155
  • Constitution of Kenya, 2010Article 155(3)
  • Constitution of Kenya, 2010Article 159
  • Constitution of Kenya, 2010Article 159(2)(c)
  • Constitution of Kenya, 2010Article 162
  • Constitution of Kenya, 2010Article 163(4)(a)
  • Constitution of Kenya, 2010Article 165
  • Constitution of Kenya, 2010Article 232
  • Constitution of Kenya, 2010Article 258
  • Constitution of Kenya, 2010Article 259
  • Public Appointments (Parliamentary Approval) ActSection 6(9)
  • Public Appointments (Parliamentary Approval) ActSection 7
  • Supreme Court ActSection 3
  • Supreme Court ActSection 22

Cases cited (21)

  • Albert Chaurembo Mumba & 7 Others v Maurice Munyao & 148 Others
    Petition 3 of 2016 [2019] KESC 83 (KLR)
  • Anthony Miano & Others v Attorney General & Others
    KEHC 12687 e(KLR)
  • Salaries and Remuneration Commission & another v Parliamentary Service Commission & 15 others; Parliament & 4 others (Interested Parties)
    [2020] KEHC 10370 (KLR)
  • Kenya Tea Growers Association & 2 others v The National Social Security Fund Board of Trustees & 13 others
    [2024] KESC 3 (KLR)
  • Coalition for Reform and Democracy (CORD) & 2 others v the Republic & another; Director of Public Prosecution & 6 Others (Interested Parties); Law Society of Kenya & Another (Amicus Curiae)
    Petition 628 & 630 of 2014 & 12 of 2015 (Consolidated) [2015] KEHC 7074 (KLR)
  • Patrick Ouma Onyango & 12 Others v The Attorney General & 2 Others
    Misc. Appl. No. 677 of 2005 (unreported)
  • Waity v Independent Electoral & Boundaries Commission & 3 Others
    [2019] KESC 54 (KLR)
  • Ngoge v Kaparo & 5 Others
    [2012] KESC 7 (KLR)
  • Nicholus Abidha v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties)
    Petition E007 of 2023 [2023] KESC 113 (KLR)
  • Okoiti & 2 Others v Attorney General & 14 Others
    [2023] KESC 31 (KLR)
  • Nduttu & 6000 others v Kenya Breweries Ltd & another
    [2012] KESC 9 (KLR)
  • Opore v Independent Electoral and Boundaries Commission & 2 others
    [2018] KESC 5 (KLR)
  • Peter Gatirau Munya v Dickson Mwenda Kithinji & Others
    Application 5 of 2014 [2014] KESC 30 (KLR)
  • Rutongot Farm Ltd v Kenya Forest Service & 3 others
    Petition 2 of 2016 [2018] KESC 27 (KLR)
  • Adega & 2 others v Kibos Distillers Limited & 5 others
    Petition 3 of 2020 [2020] KESC 36 (KLR)
  • Bia Tosha Distributors Ltd v Kenya Breweries Ltd & 6 Others
    Pet No 15 of 2020 [2023] KESC 14(KLR) (Const. and JR) (17 February 2023) (Judgment)
  • United Bank of India v Satyawati Tondon & Others
    (2010) 8 SCC
  • Geo Chem Middle East v Kenya Bureau of Standards
    [2020] KESC 1 (KLR)
  • Nyutu Agrovet Limited v Airtel Networks Kenya Limited; Chartered Institute of Arbitrators Kenya Branch
    [2019] KESC 11 (KLR)
  • Westmont Holdings SDN BHD v Central Bank of Kenya & 2 others
    [2023] KESC 11 (KLR)
  • Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others
    Petition 4 of 2012 [2014] KESC 31 (KLR)
On appeal from
Court of Appeal of Kenya
Civil Appeal No. E722 of 2023
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Key timeline

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2024-12-10
Dr. Magare files petition challenging appointment of 51 Principal Secretaries and one Principal Administrative Secretary.
2025-03-14
Petition formally filed at the Supreme Court.
2026
Supreme Court delivers judgment, partially allowing the appeal and finding lower courts misapplied the exhaustion doctrine.

Practical implications

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For lawyers

Challenge exhaustion rulings strategically

When clients face constitutional challenges to government appointments, do not automatically assume the statutory objection process must be exhausted first. If the grievance involves systemic constitutional issues like gender balance or ethnic diversity—beyond individual nominee suitability—you can argue directly to court. Cite this case to distinguish Albert Chaurembo Mumba and rely on Nicholus Abidha. Ensure your pleadings consistently frame the constitutional provisions at issue to secure Supreme Court jurisdiction under Article 163(4)(a).

For businesses

Monitor appointment challenges closely

This ruling opens the door for more direct court challenges to presidential appointments on constitutional grounds. If your business interacts with government ministries or relies on Principal Secretaries for approvals, expect potential delays or changes in leadership as cases like Dr. Magare's proceed. Stay informed about ongoing ELRC Petition No. E513 of 2022, which covers similar issues. Consider engaging legal counsel to assess how any court-ordered changes to appointment compositions might affect your regulatory or contractual relationships.

For individuals

Know your right to challenge appointments

If you believe a presidential appointment violates the Constitution—for example, by failing to meet gender or ethnic diversity requirements—you can go directly to court. You do not have to first use Parliament's objection process if your concern is about the overall composition, not just one person's suitability. The Supreme Court has confirmed that courts must hear such cases. To proceed, file a petition citing specific constitutional articles (like Articles 10, 27, 73, 75, or 232) and explain why the statutory process is inadequate for your claim.

Frequently asked questions

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Can I challenge a presidential appointment in court in Kenya without going to Parliament first?+

Yes, if your challenge is about broader constitutional issues like gender balance or ethnic diversity, not just one nominee's suitability. The Supreme Court ruled that the statutory objection process under Section 6(9) of the Public Appointments Act is inadequate for such claims, so you can go directly to court.

What is the doctrine of exhaustion in Kenyan law?+

It means you must use available administrative or statutory remedies before going to court. But the Supreme Court clarified it is not a blanket rule. If the alternative remedy cannot address your constitutional complaint—like challenging overall appointment diversity—you can bypass it and access the courts directly.

Does the Kenyan Constitution require gender balance in presidential appointments?+

Yes. Articles 10, 27, and 232 require the state to adhere to gender balance and ethnic, regional, and cultural diversity in public appointments. The Supreme Court confirmed that courts can hear cases alleging violations of these principles, even if a statutory objection process exists.

What happens to Dr. Magare's case after the Supreme Court ruling in Kenya?+

The Supreme Court partially allowed the appeal, meaning the lower courts wrongly blocked his petition. However, the Court did not send the case back for a full hearing because similar issues are already being handled in ELRC Petition No. E513 of 2022. That case will now proceed.

Later judgments citing this (8)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Benjamin v Attorney General & 55 others", Case Analysis (2026). Petition E042 of 2024. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2026/5/eng@2026-01-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.