Benjamin v Attorney General & 55 others
The bottom line
#Supreme Court: Courts can hear constitutional challenges to presidential appointments even if a statutory objection process exists.
What this practically means
#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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court is properly seized of jurisdiction under Article 163(4)(a) of the Constitution.
- 2.Whether both superior courts below properly applied the doctrine of exhaustion as well as the doctrine of non-justiciability.
- 3.And if the answer to (ii) is in the negative, what reliefs should be issued.
Key legal issues
#Whether the Supreme Court has jurisdiction under Article 163(4)(a) to hear the appeal.
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.
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).
Whether the superior courts below properly applied the doctrine of exhaustion and the doctrine of non-justiciability.
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.
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
#- 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
#- 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.Each party will bear their own costs of the appeal.
- 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.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal of Kenya
- Civil Appeal No. E722 of 2023
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Remittal of the petition to the trial court for determination on merit
The Court found it prudent to let ongoing proceedings before the ELRC, including Petition No. E513 of 2022, take their course to their logical conclusion, and declined to pre-empt their determination.
Determination of the correct court (ELRC or High Court) for such disputes
The Court declined to pronounce itself on the jurisdictional question to avoid prejudicing pending proceedings.
Costs
Each party will bear their own costs of the 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.
the doctrine of exhaustion is not to be applied as a blanket principle. We clarified that the right to access the court for redress of alleged constitutional violations should not be impeded or stifled in a manner that frustrates the enforcement of fundamental rights and freedoms.
the appellant’s challenge went beyond the suitability of individual nominees and touched on broader constitutional questions regarding adherence to the two-thirds gender principle and the equitable representation requirements under Articles 10, 27, 73, 75 and 232 of the Constitution, issues that squarely fall within the province of judicial determination.
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.
Each party will bear their own costs of the appeal.
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.
Key timeline
#Practical implications
#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).
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.
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
#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 (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Parliament of Kenya & another v Okoiti & 2 others[2026] KESC 28 (KLR)31 Mar 2026followed
Cite this brief
#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.