Katiba Institute v Attorney General & 9 others
The bottom line
#President cannot appoint JSC members elected by others; only public representatives need presidential appointment.
What this practically means
#The Supreme Court ruled that the President does not have the power to appoint members of the Judicial Service Commission who are elected by other bodies, such as judges or lawyers. Only the two public representatives nominated by the President require his appointment. The court also said that fair competition is not required when choosing these public representatives, but merit and diversity still matter. A law giving the President appointment power over all JSC members was partly struck down.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there is a requirement for merit and fair competition in appointments to the JSC under articles 171(2)(g) and (h) as read with articles 10, 73(2)(a) and 250 of the Constitution
- 2.Whether section 15(2) of the Judicial Service Act was unconstitutional
- 3.Whether the nomination and subsequent appointment of the 5th, 6th and 7th respondents were valid
Key legal issues
#Whether there is a requirement for merit and fair competition in appointments to the JSC under articles 171(2)(g) and (h) as read with articles 10, 73(2)(a) and 250 of the Constitution
There is no requirement for fair competition in appointments to the JSC under article 171(2)(g) and (h). The Constitution itself makes provision on the manner and process of identification and appointment of members, and the court may not question the exercise of discretion as long as it is exercised in accordance with the Constitution and the law.
The court held that article 171(2)(h) only requires that a person be a woman or man and not a lawyer. The President, acting in good faith, must consider merit, national values, integrity, and diversity, but fair competition is not a mandatory requirement. The National Assembly's approval process provides a further check. For the PSC nominee under article 171(2)(g), the PSC has discretion to identify its nominee internally, guided by constitutional values, but fair competition is not a constitutional imperative specified in this regard. The court distinguished this from other appointments like Principal Secretaries or judges where the Constitution explicitly requires a competitive process.
Whether section 15(2) of the Judicial Service Act is unconstitutional
Section 15(2) of the Judicial Service Act is unconstitutional to the extent that it confers on the President the authority to appoint members elected and nominated to the JSC under article 171(2)(b), (c), (d), (f) and (g). However, it is not unconstitutional for failing to prescribe merit, diversity, and fair competition as prerequisites for appointment.
The court found that article 171 is a self-executing provision. Only under article 171(2)(h) does the President have the mandate to nominate two persons to represent the public. For elected members under (b), (c), (d), and (f), the appointment is concluded upon the declaration of election results. For the PSC nominee under (g), the name should be forwarded to the JSC, not the President. Section 15(2) contradicts article 171 by requiring all nominees to be submitted to the President for appointment, which infracts the principle that state organs must exercise power strictly in accordance with the Constitution.
Whether the nomination and subsequent appointment of the 5th, 6th and 7th respondents were valid
The three were duly nominated and, in the case of the 6th and 7th respondents, approved by the National Assembly. The approval of the 5th respondent by the National Assembly was unnecessary but did not invalidate his appointment.
The court found that the 5th respondent was nominated by the PSC, not the President, based on the evidence of Alice Otwala. The PSC's internal consultative process was sufficient. For the 6th and 7th respondents, the National Assembly properly considered the integrity issues raised against the 6th respondent and was satisfied with her explanation. The court declined to conduct a merit review of the National Assembly's decision, as it was not shown that the Assembly violated the Constitution or the law.
Legal principles established
#- No fair competition required for JSC appointments under article 171(2)(g) and (h).
- Section 15(2) of the Judicial Service Act is unconstitutional for giving President power to appoint elected JSC members.
- National Assembly approval is not needed for the Public Service Commission nominee to the JSC.
- Article 171 of the Constitution is self-executing for JSC membership; no additional appointment by President needed for elected members.
- President only appoints the two public representatives under article 171(2)(h).
- Merit, national values, and diversity still guide JSC appointments, but not a competitive process.
Court orders
#- 1.A declaration that there is no requirement for fair competition in appointments to the JSC under article 171(2)(g) and (h)
- 2.A declaration that section 15(2) of the Judicial Service Act is, to the extent that it confers on the President the authority to appoint members elected and nominated to the JSC under article 171(2), (b), (c), (d), (f) and (g), unconstitutional
- 3.A declaration that the approval by the National Assembly of the 5th respondent was irregular and unnecessary
- 4.A declaration that to the extent that section 15(2) confers on the President power to appoint the 5th respondent, it is inconsistent with article 171 and therefore invalid, but it is in harmony with article 171 in so far as it does not prescribe merit, diversity and fair competition as prerequisites for appointment of a representative of the PSC and the two members to represent the public in the JSC under articles 171(2)(g) and (h), respectively
- 5.Parties to bear their own costs
- 6.The sum of Kshs 6,000/- deposited as security for costs upon lodging of this appeal be refunded to the appellant
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Dissented on the constitutionality of section 15(2) of the Judicial Service Act, holding that the President has a constitutional duty to appoint all JSC Commissioners, including elected ones, and that the approval of the 5th respondent by Parliament and his subsequent appointment by the President was proper. She found section 15(2) unconstitutional only insofar as it imposed a three-day timeline for appointment.
I am still of the considered view that the three stages pursuant to article 250 of the Constitution, as illustrated above, are mandatory. An appointment cannot be concluded at the first stage of identification and recommendation, without going through the second step of parliamentary approval and the third step of appointment by the President.p. 31
- On appeal from
- Court of Appeal of Kenya
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
- Consolidated with
- SC Petition No 45 of 2019, Law Society of Kenya v Attorney General & 4 others
Relief refused
#Nullification of the appointments of the 5th, 6th and 7th respondents
The court found that the three were duly nominated and, in the case of the 6th and 7th respondents, approved by the National Assembly after satisfying itself as to their suitability. The approval of the 5th respondent was unnecessary but did not invalidate his appointment.
Costs
Parties to bear their own costs
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.
There is no requirement for fair competition in appointments to the JSC under article 171(2)(g) and (h).
Section 15(2) of the Judicial Service Act is, to the extent, that it confers on the President the authority to appoint members elected and nominated to the JSC under article 171(2), (b), (c), (d), (f) and (g), unconstitutional.
The approval by the National Assembly of the 5th respondent was irregular and unnecessary.
Parties to bear their own costs.
We hereby direct that the sum of Kshs 6,000/- deposited as security for costs upon lodging of this appeal be refunded to the appellant.
Key timeline
#Practical implications
#Challenge JSC appointment process
Lawyers can use this ruling to argue that any presidential appointment of JSC members beyond the two public representatives is unconstitutional. When advising clients on judicial appointments, note that elected members (e.g., from the Law Society) do not need presidential approval. Also, fair competition is not a legal requirement for public representatives, so challenges based on lack of competitive interviews will likely fail.
JSC composition affects judicial independence
Businesses rely on an independent judiciary. This ruling clarifies that the JSC's composition is protected from executive overreach: elected members are not appointed by the President. This strengthens judicial independence, which is good for contract enforcement and dispute resolution. However, the lack of fair competition for public representatives may reduce diversity, so businesses should monitor JSC appointments for merit and integrity.
Know your JSC appointment rights
Individuals can now understand that the President only appoints two members of the Judicial Service Commission – the public representatives. Other members (judges, lawyers, etc.) are elected by their own bodies and do not need presidential approval. If you have concerns about a JSC member's appointment, focus on whether the correct constitutional process was followed, not on whether there was a competitive interview.
Frequently asked questions
#Is fair competition required for JSC appointments in Kenya?+
No, the Supreme Court ruled that fair competition is not a constitutional requirement for appointing the two public representatives to the Judicial Service Commission under article 171(2)(h). However, merit, national values, and diversity must still be considered.
Can the President appoint any JSC member in Kenya?+
No. The President can only appoint the two public representatives nominated under article 171(2)(h). Other members – such as judges, lawyers, and the Public Service Commission nominee – are elected or nominated by their respective bodies and do not require presidential appointment.
Does the National Assembly approve all JSC nominees in Kenya?+
No. The Supreme Court held that National Assembly approval is unnecessary for the Public Service Commission nominee to the JSC. Only the two public representatives nominated by the President require approval. The court found the approval of the PSC nominee irregular but not invalid.
What did the Supreme Court decide about section 15(2) of the Judicial Service Act in Kenya?+
The court declared section 15(2) unconstitutional to the extent that it gave the President power to appoint JSC members who are elected or nominated by other bodies. The section remains valid only for the President's appointment of the two public representatives under article 171(2)(h).
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.
- Gachagua & 5 others v Maingi & 80 others (Civil Appeal E829 of 2024 & E022 of 2025 (Consolidated)) [2025] KECA 790 (KLR)[2025] KECA 790 (KLR)9 May 2025
- Attorney General & another v Nafula & 5 others; Attorney General (Interested Party) (Civil Application E121 & & E120 of 2021 (Consolidated)) [2021] KECA 647 (KLR)[2021] KECA 647 (KLR)27 Apr 2021
Cite this brief
#Cite this brief
Caselaw, "Katiba Institute v Attorney General & 9 others", Case Analysis (2023). Petition 17 of 2020. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/47/eng@2023-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.