Attorney General & 4 others v Law Society of Kenya & 3 others

Gazette Notice No. 6265 Vol CXXVI- No. 70 of 24 May 2024, was unconstitutional, as it encroached into the mandate of the Public Service Commission under Article 234 of the Constitution. 2. The High Court allowed the petition and made the following orders: a. A declaration is hereby issued that Executive Order No.3 of 2024 promulgating the Guidelines on management and Terms and Conditions of Service for Board Members and Sta of State Corporations, May 2024 contravene and violate Articles 2, (4), 132 (4) and 234(2), 249 of the Constitution and the decision and action thereto contained in Gazette Notice No. 6265 Vol. CXXVI- No. 70 dated 24th May, 2024 is invalid, null and void and unconstitutional. b. A declaration is hereby issued that the authority to develop and recommend guidelines on management of terms and conditions of service in the public service is vested on the Public Service Commission under Article 234 (2) unless delegated in writing to any ocer, body or authority in the public service by the Public Service Commission by dint of Article 234(5) of the Constitution. c. A declaration is hereby issued that Sections 5(3) and 27(c) of the State Corporations Act are unconstitutional for being in contravention of Article 234(2) of the Constitution. d. A declaration is hereby issued that State Corporations and Public Universities, being part of the public service, are subject to the constitutional and statutory mandate and control of the Public Service Commission as outlined in Article 234 of the Constitution. e. A declaration is hereby issued that the State Corporations Advisory Committee (SCAC) being a public entity in the public service is subject to the constitutional and statutory mandate and control of the Public Service Commission as outlined in Article 234 of the Constitution on matters relating to public service. f. A declaration is hereby issued that the 6th Respondent, Cabinet Secretary, the National Treasury had no authority to exercise the powers and functions vested on Salaries and Renumeration Commission Under Article 230 of the Constitution as well as Salaries and Renumeration Commission Act. g. An order of judicial review by way of certiorari is hereby issued quashing Executive Order No. 3 of 2024 dated 24th May, 2024 in so far as the same relates to the Guidelines on management and Terms and Conditions of Service for Board Members and Sta of State Corporations, May 2024. h. An order of judicial review by way of certiorari is hereby issued quashing the Guidelines on management and Terms and Conditions of Service for Board Members and Sta of State Corporations, May 2024. i. This being a public interest litigation... no orders as to costs. 3. Aggrieved by the judgment, the applicants led a notice of appeal, and now seek orders to stay the judgment pending hearing of the intended appeal. 4. In the application, the applicants fault the judgment of the High Court on the argument inter alia that State Corporations fall under a special category and governance framework; that the High Court erred in holding that it is the Public Service Commission (PSC) which has the mandate of approving the human resource instruments for State Corporations and Public Universities; that the mandate of the PSC covers the mainstream public service known as ‘civil service’ and does not extend to State Corporations; that the judgment will impede the implementation of the Executive Order and that https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1825/eng@2026-09-25 2

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all current appointments of Chief Executive Ocers (CEOs) and sta of State Corporations stand in limbo and legally exposed; that the enforcement of the judgment will cripple the operations of the State Corporations Advisory Committee (SCAC) and ability to discharge its functions as well as cause confusion within State Corporations and Public Universities regarding approval of human resource instruments; that the judgment has rendered redundant the human resource instruments approved vide the advice of SCAC (2nd applicant) which are currently used by the State Corporations and Public Universities, and exposes all decisions and actions made pursuant to the said instruments null and void, potentially exposing State Corporations and Public Universities to labour disputes and nancial exposure which will paralyze their operations; that if stay is not granted there is a real risk of the intended appeal being rendered nugatory and damage occasioned by the judgment will be irreparable. 5. The application is opposed by the Law Society of Kenya (5th respondent) and the PSC (2nd respondent). The 5th respondent, through the replying adavit of Florence Wairimu Muturi, its Chief Executive Ocer, contends that the application does not meet the threshold for grant of stay before this Court. In a nutshell she is of the view that the High Court properly interpreted the Constitution in arming the mandate of the PSC under Article 234 of the Constitution. She avers that if stay is granted, this will nullify the decisions and directives of the PSC, including the human resource instruments, and it will not be in the public interest to reverse the decision. Further, that if stay is granted, this will allow unconstitutional provisions of the State Corporations Act to continue operating. 6. The PSC has opposed the application through the replying adavit of Paul Famba, its Secretary/ CEO. He also contends that the application does not meet the threshold for grant of stay orders. He deposes that the impugned Executive Order had been stayed on 5 June 2024 pending hearing of the petition and those orders remained in force until the judgment was delivered on 7 November 2025. He deposes that the guidelines in the Executive Order have never been implemented and have not been in force. He has also referred to conservatory orders issued on 21 September 2023 in Nairobi High Court Constitutional Petition No. E303 of 2023 where the court directed the PSC to continue being the focal point for approving Human Resource Instruments for all public oces including State Corporations and Public Universities, which orders still remain in force, as judgment in the said petition is yet to be delivered. He deposes that contrary to the allegations of the applicants, State Corporations and Public Universities are operating smoothly and there has been no crisis whatsoever, with the PSC continuing to exercise its functions and powers over the said State Corporations and Public Universities, including approving human resource instruments. He asserts that there will be no confusion in State Corporations and Public Universities if stay is not granted and he is not persuaded that the appeal will be rendered nugatory. He added that public interest favours complying with the decision of the court. 7. The applicant, the 2nd respondent and the 5th respondent led written submissions which were highlighted respectively by learned counsel, Mr. Thande Kuria, Ms. Jacqueline Manani, and Ms. Kiunga. We have considered these submissions before arriving at our decision. 8. What is before us is a Rule 5 (2) (b) application and the principles are well settled. As expounded in the case of Stanley Kangethe Kinyanjui vs Tony Ketter & 5 Others (2013) eKLR, the applicant needs to demonstrate two limbs, rstly, that he has an arguable appeal, and secondly, that if stay is not granted, the appeal will be rendered nugatory. In a case such as this, where constitutional and governance questions arise, a third element, that of public interest, also needs to be considered as elaborated by the Supreme Court in the case of Munya v Kithinji & 2 others (Application 5 of 2014) [2014] KESC 30 (KLR) (2 April 2014) (Ruling). 9. Regarding the rst limb, that of arguability, the applicants inter alia wish to challenge the ndings of the High Court on the declaration of unconstitutionality of Executive Order No. 3 of 24 May 2024 https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1825/eng@2026-09-25 3

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and Sections 5 (3) and 27 (c) of the State Corporations Act. The applicants assert that there is need to interrogate the executive powers conferred upon the President by the Constitution, the governance structure of State Corporations, and the role played by SCAC and the PSC. Although the 2nd and 5th respondents were spirited that there is nothing arguable in these points, which they contend have already been decided, citing the cases of Munyara Muchui Anthony vs Communications Authority of Kenya & 3 Others (2022) eKLR and Consumer Federation of Kenya (COFEK) vs National Social Security Fund Board of Trustees & 2 Others (2022) eKLR, we are persuaded that the decisions referred to by the 2nd and 5th respondents have not interpreted the powers of the President in making executive orders directing the operations of State Corporations. Neither was Executive Order No. 3 of 24 May 2024 the subject of the said decisions. We are therefore persuaded that there is an arguable point to be interrogated in elaborating the extent and parameters of the powers of the President vis-a-vis the powers of the Public Service Commission when it comes to human resource related functions of State Corporations. As outlined in the case of Stanley Kangethe Kinyanjui vs Tony Ketter & 5 Others (supra) a single arguable point is sucient, and neither is it one that must succeed. In light of that, we are persuaded that the applicants have demonstrated an arguable appeal. 10. We are however not persuaded that the appeal will be rendered nugatory if stay is not granted. As outlined in the replying adavit of Mr. Famba, which was not disputed by the applicants, there were conservatory orders issued prior to the petition being heard and judgment being delivered, and further, that there are existing conservatory/stay orders issued in Nairobi High Court, Constitutional Petition No. E303 of 2023. We did not hear the applicants argue that because of these conservatory/stay orders, the functions of State Corporations or Public Universities were crippled. Within the period that the conservatory orders were in place, State Corporations and Public Universities continued operating under the human resource instruments that were existing before the Executive Order. If the intended appeal succeeds, the regime will simply transition from the prevailing one to what is contained in the Executive Order. We therefore do not nd, and we are not persuaded, that the appeal will be rendered nugatory if the application for stay is not allowed. 11. On public interest, the High Court has made a pronouncement that the Executive Order is unconstitutional. This Executive Order was declared unconstitutional prior to it being operationalized. We are not persuaded that in those circumstances, it would be in the public interest to allow a legal regime that has been declared unconstitutional and which has not been operationalized, to take over one that has been existing and found to be sound in law. 12. For not meeting the nugatory test and the public interest test, this application fails. 13. The result is that this application is dismissed. 14. We make no orders as to costs. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER, 2026. L. KIMARU .................................... JUDGE OF APPEAL MUNYAO SILA .................................... JUDGE OF APPEAL DR. J. O. OKELLO https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1825/eng@2026-09-25 4

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....................................... JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1825/eng@2026-09-25 5

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