Law Society of Kenya v Attorney General & 4 others
The bottom line
#JSC members elected by peers don't need MP approval; President can't appoint them.
What this practically means
#The Supreme Court ruled that most Judicial Service Commissioners—like judges, lawyers, and other officials chosen by their peers—do not need to be vetted by Parliament before taking office. Only the two public representatives require MP approval. The Court also blocked the President from appointing these peer-elected commissioners, saying that power belongs to those who elect them. Section 15(2)(b) of the Judicial Service Act was struck down as unconstitutional.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a member of the JSC elected under article 171(2)(b), (c), (d), (f) and (g) ought to be vetted and approved by the National Assembly before appointment
- 2.Whether section 15(2) of the Judicial Service Act is inconsistent with the Constitution to the extent that it gives the President a role in appointment of JSC Commissioners elected and/or nominated under article 171(2)(b), (c), (d), (f) and (g) or for failure to require that all persons elected and or nominated as JSC Commissioners be subject to approval by the National Assembly
Key legal issues
#Whether article 171 is self-executing such that article 250's general provisions on appointment do not apply to the JSC
Article 171 is self-executing and provides a complete code for the composition, identification, and appointment of JSC members, thereby displacing the general provisions of article 250.
The court compared the detailed provisions of article 171 with the general framework of article 250, noting that article 171 specifies the exact number of members (11, not the 3-9 range in article 250), provides for renewable five-year terms (not the single six-year term in article 250), and distinguishes between categories of members with different appointment processes. The proviso in article 248(1) that chapter fifteen applies 'except to the extent that this Constitution provides otherwise' was held to accommodate article 171's self-contained scheme. The court also contrasted the JSC with other chapter fifteen commissions whose composition and appointment procedures are not fully specified in the Constitution, thus requiring recourse to article 250.
Whether elected JSC commissioners must be vetted and approved by the National Assembly before appointment
Elected JSC commissioners under article 171(2)(b), (c), (d), (f) and (g) are not subject to parliamentary approval; only the two public representatives under article 171(2)(h) require such approval.
The court held that the plain language of article 171(2)(h) expressly requires parliamentary approval only for the two public representatives, while the other categories are elected or nominated by their peers or nominating bodies. The court reasoned that an election by peers constitutes a form of vetting that cannot be replicated by Parliament, and that subjecting elected members to parliamentary approval would undermine the independence of the JSC and the Judiciary. The court also noted the historical context of the 2010 Constitution, which sought to reduce executive influence over the JSC.
Whether section 15(2) of the Judicial Service Act is unconstitutional for giving the President a role in appointing elected JSC commissioners
Section 15(2)(b) is void for inconsistency with article 171 to the extent it gives the President power to appoint elected and nominated JSC members under article 171(2)(b), (c), (d), (f) and (g).
The court found that article 171 does not give the President any role in the appointment of elected or nominated JSC commissioners; his power is limited to appointing the two public representatives under article 171(2)(h) with parliamentary approval. The court rejected the argument that the President's role is merely ceremonial, holding that the word 'appoint' in section 15(2) implies a substantive power inconsistent with the constitutional scheme. The court noted that the IEBC conducts the elections and issues certificates, and that the gazettement role should be performed by the IEBC or the Commission's secretary, not the President. The historical context of the 2010 Constitution, which aimed to insulate the JSC from executive control, supported this interpretation.
Legal principles established
#- Article 171 is self-contained for JSC appointments; Article 250's general rules do not apply.
- Peer-elected JSC members (e.g., judges, lawyers) are not subject to National Assembly vetting.
- Only the two public representatives on the JSC must be vetted and approved by MPs.
- The President cannot appoint peer-elected JSC commissioners; that role violates Article 171.
- Section 15(2)(b) of the Judicial Service Act is void for inconsistency with the Constitution.
- The JSC's independence is protected by limiting executive and legislative involvement in its membership.
Court orders
#- 1.The petition dated November 22, 2019 has merit and is hereby successful
- 2.There is no basis, constitutional or legal for a member of the JSC elected or nominated under article 171(2)(b), (c), (d), (f) and (g) to be vetted and approved by the National Assembly before appointment
- 3.Only those commissioners of the JSC upon whom there is a constitutional obligation for vetting before appointment have to be approved by the National Assembly
- 4.To the extent that section 15(2)(b) of the JS Act donates to the President the power to appoint elected and nominated members of the JSC under article 171(2)(b), (c), (d), (f) and (g), it is void for being inconsistent with article 171 of the Constitution
- 5.Parties to bear their own costs
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
The dissenting judge held that article 171 is not self-executing; that the President has a constitutional duty under articles 132 and 250 to appoint JSC Commissioners, and that all chapter fifteen commissioners, including elected JSC members, must be approved by the National Assembly before appointment, subject to safeguards for judicial independence.
I am however, with profound respect, of a different opinion on their findings in response to the following issues: i. Whether a member of the JSC elected under article 171(2)(b), (c), (d), (f) and (g) ought to be vetted and approved by the National Assembly before appointment; ii. Whether section 15(2) of the Judicial Service Act is inconsistent with the Constitution to the extent that it gives the President a role in appointment of JSC Commissioners elected and/or nominated under article 171(2)(b), (c), (d), (f) and (g) or for failure to require that all persons elected and or nominated as JSC Commissioners be subject to approval by the National Assembly.p. 32
- On appeal from
- Court of Appeal of Kenya
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Declaration that all JSC commissioners must be approved by the National Assembly
The court held that article 171 is self-executing and only the two public representatives under article 171(2)(h) require parliamentary approval
Costs
each party to bear its 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.
article 171 is fully self-executing. From a plain reading of the three articles, 171, 248 and 250, it is apparent that the former was intended to apply exclusively and specifically to the establishment of the JSC, its composition, mode of appointment and term of office of its members, while article 250 was to regulate and guide on the composition, appointment and terms of office of commissions and independent offices generally.
There is no basis, constitutional or legal for a member of the JSC elected or nominated under article 171(2)(b), (c), (d), (f) and (g) to be vetted and approved by the National Assembly before appointment.
Had the people of Kenya or the Legislature intended that all elected members of the JSC be first approved by the National Assembly before being appointed, nothing would have been easier than to expressly state so, the same way they have done for the two members representing the public.
To give the President power to appoint or even to 'appoint' by mere gazettement of names is to forget our history and the mischief article 171 was intended to cure.
Parties to bear their own costs.
Key timeline
#Practical implications
#Disputed JSC appointments resolved
The ruling clarifies that only two JSC seats require parliamentary approval. If you advise a client nominated by a professional body, you can now confirm they do not need MP vetting. The President's role in appointing peer-elected commissioners is off the table, reducing lobbying risks.
Judicial appointments less political
Businesses relying on predictable dispute resolution benefit from a more independent JSC. With fewer political hurdles, commissioner appointments should be faster and less prone to delay. Monitor JSC elections in your sector—they may now run without presidential interference.
How JSC members are chosen
If you are a lawyer or judge elected to the JSC, you no longer need a parliamentary nod. The Court said peer elections are sufficient vetting. For Kenyans, this protects the JSC from political meddling, potentially improving judicial accountability and reducing bias in handling complaints.
Frequently asked questions
#Which JSC members in Kenya need parliamentary approval?+
Only the two public representatives on the Judicial Service Commission must be vetted and approved by the National Assembly. All others—judges, lawyers, and officials elected by their peers—do not need Parliament's approval to take office.
Can the President of Kenya appoint JSC commissioners?+
The President can only appoint the two public representatives on the JSC, after they are approved by MPs. He cannot appoint members elected by judges, lawyers, or other bodies. The Court struck down that power as unconstitutional.
What does the Supreme Court ruling mean for JSC independence in Kenya?+
The ruling strengthens JSC independence by removing executive control over appointments. Peer-elected commissioners are not subject to political vetting, and the President's appointment role is limited. This protects the judiciary from outside interference.
Is section 15(2)(b) of the Judicial Service Act still valid in Kenya?+
No. The Supreme Court declared section 15(2)(b) void for being inconsistent with the Constitution, to the extent it gave the President power to appoint peer-elected JSC commissioners. That part of the law cannot be relied upon.
Later judgments citing this (6)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kamande v Judicial Service Commission[2025] KESC 48 (KLR)15 Aug 2025
- National Hospital Insurance Fund Management Board v Kenya Union of Commercial Food and Allied Workers & another; Attorney General (Interested Party)[2025] KESC 37 (KLR)30 May 2025followed
- 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
- National Assembly v Katiba Institute & 6 others (Civil Appeal 243 of 2018) [2023] KECA 1174 (KLR)[2023] KECA 1174 (KLR)6 Oct 2023
- Katiba Institute v Attorney General & 9 others[2023] KESC 47 (KLR)16 Jun 2023applied
- Mbogo & another v Kimani (Appeal 4 of 2018) [2022] KEELC 3784 (KLR)[2022] KEELC 3784 (KLR)30 Jun 2022applied
Cite this brief
#Cite this brief
Caselaw, "Law Society of Kenya v Attorney General & 4 others", Case Analysis (2023). Petition 45 of 2019. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/19/eng@2023-03-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.