Njenga v Judicial Service Commission & 9 others
The bottom line
#Kenya's Court of Appeal ruled the Supreme Court's five-men-two-women composition breached the Constitution's two-thirds gender rule, though the judge's appointment stood.
What this practically means
#Executive summary
#Key legal issues
#Whether merit is the primary consideration and gender secondary in recruitment of Supreme Court judges
No. Gender is a mandatory constitutional factor equal in importance to competency; the JSC must incorporate the gender imperative alongside merit in every recruitment.
Article 166(3) is given life through the Judicial Service Act and the Public Service (Values and Principles) Act, which require the JSC to consider gender, regional, ethnic and other diversities when nominating. Article 27(8) is framed in imperative terms and binds every State organ. Holding otherwise would produce appointments contrary to the Constitution.
Whether a Supreme Court of five men and two women complies with article 27(8)
No. Five of seven members of one gender exceeds two-thirds regardless of mathematical rounding; the correct interpretation caps one gender at four members.
The court adopted a purposive interpretation of articles 27(6) and (8), taking account of the spirit and history of the equality provisions. No mathematical maneuvering in decimals or fractions can bring five of seven within the two-thirds limit, so the composition violated a fundamental constitutional imperative.
Whether the appointment of the 4th respondent was unconstitutional
No. He was appointed under the procedure in the Judicial Service Act; at the time no mandatory affirmative-action obligations were in place, and progressive realization protected the appointment.
The applicable statutory provisions relegated gender to a guiding rather than primary consideration, causing the shortfall. Under progressive realization as explained in Advisory Opinion No 2 of 2012, previous actions do not violate the Constitution provided good-faith measures are initiated. By 2021 the Supreme Court had reached a compliant 3:4 ratio.
Whether whole-service gender balance excuses non-compliance in a single court
No. Each level of the judicial service must adhere as closely as possible to the two-thirds gender principle; aggregate balance across cadres is insufficient.
Substantive equality under article 27 requires recognition of past inequality and redress through affirmative action and structural changes in selection processes. Reliance on the magistracy's female majority to justify a non-compliant Supreme Court perpetuates discriminatory practices contrary to article 27.
Whether the NGEC's advisory opinion bound the JSC
No. Both are independent commissions under Chapter 15; nothing in the Constitution or statute makes the NGEC's advice binding on the JSC.
The NGEC is established by the National Gender and Equality Commission Act pursuant to article 59(4), and the JSC is an independent commission under article 248. Neither is subject to direction or control of any other authority, so the advisory opinion could be noted but not imposed.
Legal principles established
#- The two-thirds gender principle is a mandatory constitutional factor in judicial recruitment, equal in importance to merit and competency
- A superior court comprising five out of seven members of one gender violates the two-thirds gender principle; no more than four members of one gender are permissible in a seven-member court
- Compliance with the two-thirds gender principle must be assessed at each level of the judicial service, not across the service as a whole
- Advisory opinions of the National Gender and Equality Commission are not binding on the Judicial Service Commission, both being independent commissions
- Discrimination need not be intentional; adverse effect or systemic discrimination suffices
Court orders
#- 1.Declaration that the interpretation of article 27(6) and (8) of the Constitution is that there can be no more than four members of one gender in the Supreme Court
- 2.Finding that in 2016 the 1st respondent was required to take progressive steps to ensure the two-thirds gender principle was attained in accordance with Supreme Court Advisory Opinion No 2 of 2012
- 3.Finding that the recruitment of the 4th respondent was not unconstitutional
- 4.Finding that the 1st respondent bears responsibility to ensure the two-thirds gender principle is complied with in recruitment to all courts
- 5.Finding that advisory opinions given by the 3rd respondent to the 1st respondent are not binding
- 6.Each party to bear its own costs
- On appeal from
- High Court of Kenya
- Petition No 446 of 2016 (as consolidated with Petition 456 of 2016)
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules; constitutional interpretation of articles 27(6) and (8) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#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.
- Ngati & 3 others v Mutie & 7 others[2023] KEELC 17878 (KLR)18 May 2023applied
Cite this brief
#Cite this brief
Caselaw, "Njenga v Judicial Service Commission & 9 others", Case Analysis (2022). Civil Appeal 234 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1429/eng@2022-12-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.