High Court 19209 of 2025

CLERK, NAIROBI CITY COUNTY ASSEMBLY ...................... 3RD RESPONDENT PATRICK ANALO AKIVAGA ..................................................... 4TH RESPONDENT GODFREY AKUMALI .................................................................. 5TH RESPONDENT Failure to appoint a substantive County Secretary for Nairobi City County for over six years is unconstitutional The petition challenged the failure by Nairobi City County to appoint a substantive county secretary since 2018, resulting in prolonged reliance on acting appointments. The court held that the failure by the respondents to appoint a substantive county secretary for over six years was unconstitutional, unlawful, and in contravention of articles 10, 27, 47, 174, 175, and 232 of the Constitution and sections 44, 45, and 64 of the County Governments Act. The court further found that successive acting appointments exceeding six months were unlawful. The court highlighted the procedure for the recruitment and appointment of a county secretary. Reported by Kakai Toili Constitutional Law – fundamental rights and freedoms – enforcement of fundamental rights and freedoms - right to equality and freedom from discrimination, and the right to fair administrative action - whether the continued reliance on successive acting appointments without undertaking a competitive recruitment process contravened the right to equality and freedom from discrimination, and fair administrative action respectively – whether failure to conduct a competitive recruitment process for the position of County Secretary for Nairobi City County offended article 27 of the Constitution on equality and freedom from discrimination - Constitution of Kenya, articles 27 and 47. Devolution – county governments – county secretaries - recruitment and appointment of county secretaries procedure for the recruitment and appointment of county secretaries - whether the prolonged failure to appoint a substantive County Secretary for Nairobi City County violated constitutional provisions on governance, devolution and public service values - Constitution of Kenya, articles 10, 47, 174, 175, 201 and 232; County Governments Act, Cap. 265, section 44. Devolution – county governments – county secretaries - recruitment and appointment of county secretaries – where persons were appointed to act as county secretaries – timeline within which a person could act as a county secretary - whether a person could serve as a county secretary in acting capacity for a period exceeding the statutory six months - what was the effect of decisions or acts performed by a person serving as an acting county secretary beyond the statutory six-month period - whether an officer who continued to draw acting allowances beyond the statutory six months was entitled to that remuneration where s/he performed the role in pursuit of public good - Constitution of Kenya, article 226(5); Public Service Commission Act, Cap. 185, section 34(3); County Governments Act, Cap. 265, section 64(2). Brief facts The petition challenged the prolonged failure to appoint a substantive County Secretary for Nairobi City County since September 2018, following the removal of the former office holder. The petitioners contended that from 2018, the office had been occupied exclusively by persons serving in an acting capacity. In February 2023, the Governor nominated Mr. Jairus Musumba for substantive appointment, but the Nairobi City County Assembly (the County Assembly) rejected the nomination in March 2023. Thereafter, the 4th respondent was appointed Acting County Secretary in April 2023 and served for about 15 months until August 2024, exceeding the statutory six-month limit. In August 2024, the 5th respondent was appointed to act in the same capacity. The petitioners alleged that no competitive recruitment process had been undertaken and no substantive appointment made for over six years, contrary to the Constitution and the County Governments Act. They asserted that the prolonged reliance on acting appointments undermined accountability, efficiency, and good https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19209/eng@2025-12-05 2

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governance, and violated articles 10, 27, 35, 47 and 232 of the Constitution. They further argued that the extended acting appointment of the 4th respondent was unlawful and that any allowances paid to him beyond the statutory period amounted to unauthorised expenditure. The petitioners also maintained that they had written to the Speaker and Clerk of the County Assembly in March and July 2024 seeking action, but no meaningful response was received. The respondents opposed the petition, contending that there was no deliberate failure to appoint a substantive county secretary and that ongoing internal processes justified the continued use of acting appointments. They argued that no prejudice had been demonstrated and that the 4th respondent had lawfully discharged his duties. The Speaker and Clerk further submitted that the petition was premature for failure to exhaust internal assembly procedures. Issues i. Whether the prolonged failure to appoint a substantive County Secretary for Nairobi City County violated constitutional provisions on governance, devolution and public service values. ii. Whether failure to conduct a competitive recruitment process for the position of County Secretary for Nairobi City County offended article 27 of the Constitution on equality and freedom from discrimination. iii. What was the procedure for the recruitment and appointment of a county secretary? iv. Whether a person could serve as a county secretary in acting capacity for a period exceeding the statutory six months. v. Whether the continued reliance on successive acting appointments without undertaking a competitive recruitment process contravened articles 27 and 47 of the Constitution on the right to equality and freedom from discrimination, and fair administrative action respectively. vi. What was the effect of decisions or acts performed by a person serving as an acting county secretary beyond the statutory six-month period? vii. Whether an officer who continued to draw acting allowances beyond the statutory six months was entitled to that remuneration where s/he performed the role in pursuit of public good. Held 1. While the Constitution did not prescribe a strict timeline for filling a vacancy, the governance values in articles 10, 201 and 232, together with the objects of devolution in articles 174 and 175, imposed an obligation to ensure that critical public offices were filled in a timely and transparent manner. The Constitution required justification of every governmental action, taken or not taken, thus the burden lay with the State to justify extended inaction. From the record, no justification had been offered for leaving that office vacant since 2018. Omissions by public authorities must be justified under article 10. The respondents had provided no factual explanation for the protracted vacancy, merely invoking pending Public Service Commission processes. 2. In the absence of any cogent justification, the inaction did not meet the test of justification. The longevity of a practice did not cloak the practice with constitutional legitimacy. It was only when the courts pronounced themselves on the constitutionality of a legislation or a conduct that their constitutionality could be established. Repetition of conduct, therefore, could not cure an otherwise unconstitutional abstention. 3. Article 10 of the Constitution bound all State organs and officers to uphold the national values of accountability, transparency and public participation. Article 232(1)– (2) of the Constitution required public service to be efficient, effective, accountable and responsive, grounded in professionalism, merit and equality. County secretaries, as heads of county public services, must respect inter alia principles of equality in employment, transparency and accountability and ensure nondiscriminatory appointments. A vacancy spanning years defeated those constitutional imperatives. Those constitutional provisions aimed to promote good governance and to guard against arbitrary https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19209/eng@2025-12-05 3

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4. 5. 6. 7. 8. 9. 10. 11. or capricious administration. The respondents’ failure to initiate or conclude a recruitment process subverted those values. A key office left vacant for years was incompatible with accountability and effective administration; it deprived the county of competent leadership and impaired the public’s entitlement to merit-based, transparent governance. The prolonged vacancy therefore undermined articles 10 and 232 of the Constitution. Article 47 of the Constitution guaranteed expeditious, efficient, lawful, reasonable and procedurally fair administrative action, together with the right to written reasons where administrative action adversely affected rights. Even though inaction was an omission rather than an affirmative act, the values of article 47 nonetheless applied to administrative conduct. Article 47 protected against unfair administrative processes in public appointments. Article 47 of the Constitution guaranteed every person the right to administrative action that was expeditious, efficient, lawful, reasonable, and procedurally fair. Article 47 further required written reasons where rights may be impacted. The failure to advertise, vet or fill the county secretary post had denied prospective candidates the benefit of a fair process. No reasons had been given for the inaction, and the mandatory competitive process had not commenced. Such omissions fell short of the procedural fairness and transparency demanded by article 47, leaving both prospective applicants and the public without any explanation. The purpose of devolution was to bring government closer to the people through democratic and accountable exercise of power and efficient service delivery. Articles 174 and 175 of the Constitution required county governments to realise those objectives consistently with the values of article 10 and the principles of article 232 of the Constitution. Article 174(c) obliged counties to promote social and economic development and provide proximate, and easily accessible services. The county secretary, as head of the county public service, was integral to the discharge of that mandate. Leaving the office of the county secretary unfilled impaired the county’s ability to manage the public service and to deliver services effectively, thereby undermining the devolution objectives of accountability and access to services under articles 174 and 175. The omission also deprived the county assembly of its constitutional role of vetting and approving a nominee, distorting the constitutional balance within the county executive structure. In sum, the conduct contravened the constitutional scheme of devolved governance. Article 27 of the Constitution prohibited discrimination and guaranteed equality of opportunity in public employment. Although no specific claimant of unequal treatment had been identified, a vacant office denied all potential applicants an equal opportunity to compete. The failure to conduct a competitive recruitment process therefore offended the spirit of article 27 which was intertwined with the public-service values of fairness and equality. Public appointments must respect equality in employment. By declining to open the county secretary post for competition, the respondents had insulated the position from qualified applicants and disregarded statutory requirements. That outcome ran counter to the Constitution’s guarantee of equal access to public office. The County Governments Act expressly established the office of County Secretary and prescribed its mode of appointment. Section 44(1) of the County Governments Act created the office, and section 44(2) mandated that it shall be competitively sourced by the governor and, with the approval of the county assembly, appointed by the governor. The Act designated the county secretary as head of the county public service and contemplated an open recruitment process followed by assembly vetting. The respondents’ failure to source, nominate or appoint any person to the office of county secretary was a clear breach of section 44 of the County Governments Act. Section 64 of the County Governments Act, which governed acting appointments, required that they meet substantive qualifications and be for a specified period only. There was no evidence that any acting appointment was followed by substantive recruitment, and successive acting appointments extending https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19209/eng@2025-12-05 4

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12. 13. 14. 15. 16. 17. over six years could not be reconciled with section 64(2). The statutory framework contemplated prompt compliance; ignoring it was not contemplated by law. The Public Appointments (County Assemblies Approval) Act, Cap. 265B reinforced mandatory legislative oversight. Section 4 of the Act provided that an appointment under the Constitution or any other law for which the approval of a county assembly was required shall not be made unless the appointment was approved by the relevant county assembly. By virtue of sections 44(2) and 45 of the County Governments Act, the county secretary was such an office. No nomination or approval process had been initiated, and the respondents had thereby failed to comply with that statutory scheme. The Public Service Commission Act underscored the constitutional commitment to merit-based public service. Section 17 of the Act obliged the Commission to ensure that appointments complied with article 232(g), (h) and (i) of the Constitution which demanded equitable, inclusive and meritbased public service. The prolonged vacancy was incompatible with those obligations and with the efficient, values-driven administration envisaged by the County Governments Act. The prolonged vacancy could not be squared with the Act’s directive or with the County Governments Act’s vision of an efficient, values driven county administration. The prolonged failure to appoint a substantive county secretary had no lawful basis. The Constitution anticipated a functional county executive led by a duly appointed county secretary, and the statutory scheme imposed concrete duties to recruit and appoint that officer. The respondents had not complied with any of those requirements during the six-year vacancy. The respondents’ conduct violated articles 10, 47, 174, 175 and 232 of the Constitution, undermined the equal-opportunity principle of article 27 of the Constitution, and contravened the County Governments Act, the Public Appointments (County Assemblies Approval) Act, and the Public Service Commission Act. No compelling justification for that dereliction had been demonstrated. The respondents acted in contravention of the Constitution and applicable statutes. The governing law was unequivocal: an acting appointment shall not exceed a period of six months. That limit, set out in section 34(3) of the Public Service Commission Act, was reinforced by the statutory framework governing county administration. The 1st respondent retained the 4th respondent in the acting position for approximately 15 months from April 2023 to August 2024 well beyond the statutory ceiling. That contravened section 64(2) of the County Governments Act, which required acting appointments to be for a specified short duration, and directly violated section 34(3) of the Act. On the basis of those provisions, the 4th respondent’s tenure after the initial six months was unlawful and void. An acting appointment exceeding the six-month statutory maximum could not be legitimized through acquiescence or administrative convenience. The 4th respondent’s exercise of the county secretary’s functions after the lapse of the six-month period was illegal, null and void. Any decisions or acts performed by him during that unlawful period were without legal effect, and any remuneration received in violation of the six-month rule was paid contrary to law. Article 226(5) of the Constitution provided that State officers who caused unauthorized expenditure must make good the loss. On the evidence, the 4th respondent, received acting allowances after November 2023 in excess of what the law permitted. Having found those payments unlawful, would be appropriate to require reimbursement. The purpose of section 34(3) of the Public Service Commission Act was clear: to prevent open-ended acting appointments and the financial benefits associated with them. An officer who continued to draw acting allowances beyond six months would on the face of it not be lawfully entitled to that remuneration. As a court of equity, it would be unjust to apply that principle retrospectively to a public officer who performed the role in question in pursuit of the public good, albeit illegally, and for whom it had not been demonstrated purposively acted in blatant disregard of the law so as to create a position of unjust enrichment that the court would have to reverse. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19209/eng@2025-12-05 5

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18. The length of the service outside of the statutory period would result in a large refund position that would likely be difficult if not impossible for the 4th respondent to reimburse without significant hardship to him. The court therefore declined to order that the 4th respondent refund all allowances drawn on account of the acting county secretary position after the statutory six-month period; and the same shall apply prospectively from the date of the judgment and not retrospectively. 19. The submission that the petitioners ought first to have petitioned the County Assembly or otherwise exhausted local processes before approaching the court was unconvincing. There existed no constitutional or statutory provision barring recourse to the High Court in circumstances such as the instant one. Article 165(3)(b) of the Constitution expressly vested the court with jurisdiction to determine petitions alleging violation of the Constitution. The Standing Orders of the County Assembly could not curtail or oust that jurisdiction. Moreover, the petitioners were not challenging questions of internal assembly procedure; rather, they challenged executive action or prolonged inaction relating to a constitutional office. Such matters plainly fell within the court’s supervisory and judicial review mandate. 20. The petitioners took steps to notify the County Assembly of their concerns. The Assembly was therefore placed on notice. According to the petitioners, no substantive action followed. Having notified the responsible authorities and waited without meaningful response, the petitioners were entitled to seek judicial intervention. Their conduct negated any suggestion of forum shopping or procedural impropriety. 21. The High Court consistently entertained public interest petitions where no adequate alternative remedy existed, or where such a remedy would be ineffective. In the instant case, the only conceivable alternative would have been to wait indefinitely for the County Public Service Board and the County Assembly to act, notwithstanding their demonstrated inaction. The petitioners had not bypassed any mandatory grievance mechanism. Accordingly, the petition was not premature and properly raised justiciable issues of constitutional compliance. Petition allowed. Orders i. A declaration was issued that the failure by the respondents to appoint a substantive county secretary for Nairobi City County for over six years was unconstitutional, unlawful, and in contravention of articles 10, 27, 47, 174, 175, and 232 of the Constitution and sections 44, 45, and 64 of the County Governments Act, Cap. 265. ii. A declaration was issued that the continued performance of the functions of the county secretary by the 4th respondent beyond six months after his acting appointment in April 2023, without compliance with the procedure set out under the County Governments Act and without approval of the County Assembly, was unconstitutional, unlawful, and null and void. iii. A declaration was issued that the payment of acting allowances to any person purporting to act as county secretary beyond the six-month statutory limit without a valid extension and County Assembly approval was unlawful and constituted unauthorised public expenditure; but in the circumstances of the instant case the same shall not be reimbursed and the same shall apply prospectively. iv. An order of mandamus was hereby issued compelling the 1st respondent (Governor of Nairobi City County) to, within 60 days from the date of the judgment, initiate a competitive recruitment process for the position of county secretary in accordance with section 44(2) of the County Governments Act and submit a nominee to the Nairobi City County Assembly for approval within 30 days of the lapse of that former period. v. Each party shall bear its own costs. Citations Cases https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19209/eng@2025-12-05 6

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Kenya 1. Institute for Social Accountability & another v National Assembly & 5 others Petition 1 of 2018; [2022] KESC 39 (KLR) - (Applied) 2. Kirori, Thuku & 4 others v County Governemnt of Murang’a Petition 1 of 2014; [2014] KEHC 4667 (KLR) - (Applied) 3. Law Society of Kenya v Attorney General & another; Warsame & another (Interested Parties) Petition 307 of 2018; [2019] KEHC 10881 (KLR) - (Explained) 4. Mutua v Governor, Kitui County & 4 others; Muisyo, Acting Municipal Manager, Kitui Municipality & 3 others (Interested Parties) Constitutional Petition 16 of 2020; [2022] KEHC 10872 (KLR) (Applied) 5. Ndalut & another v Nairobi City Water & Sewerage Company Ltd Employment and Labour Relations Petition E099 of 2022; [2025] KEELRC 425 (KLR) - (Applied) 6. Solanki v Nairobi Gymkhana & another Petition E480 of 2023; [2025] KEHC 4387 (KLR) - (Applied) Statutes Kenya 1. Constitution of Kenya articles 10, 22, 23, 27, 35, 47,165(3)(b)(d)(e); 174(c); 175; 201, 226(5); 232(1) (g)(h)(i)(2); 258 — (Interpreted) 2. County Governments Act (Cap 265) sections 44(1)(2); 45; 64; 64(2) — (Interpreted) 3. Public Appointments (County Assemblies Approval) Act (Cap 265B) sections 3, 4, 5, 6, 10(1) — (Interpreted) 4. Public Service Commission Act (cap 185) sections 17, 18, 34(3) — (Interpreted) Advocates Mr. Owiso for the petitioners. Mr. Ombwoni h/b for Mr. Kahesho for the 1st, 4th and 5th respondents. Mr. Kokebe for the 2nd and 3rd respondents. JUDGMENT Introduction 1. This Petition is instituted by Kasichana Mumba and John Nyanje, both residents of Nairobi City County, pursuant to articles 22, 23, 165 and 258 of the Constitution. The petitioners challenge what they contend is an unlawful and prolonged vacancy in the office of the County Secretary, Nairobi City County. They assert that the Governor and the relevant County Assembly officials have failed to appoint a substantive County Secretary for over six years, since September 2018, and have instead retained successive Acting County Secretaries beyond the lawful period. 2. The Petition names as Respondents the Governor, the Speaker and the Clerk of the Nairobi City County Assembly, Patrick Analo Akivaga (former Acting County Secretary), and Godfrey Akumali (current Acting County Secretary). The Petitioners seek the following orders: a. A Declaration that a vacancy arose in the office of the County Secretary, Nairobi City County when the substantive holder was removed from office in September 2018 and consequently the Governor of Nairobi City County and the Nairobi City County Assembly have an obligation to immediately take measures and/or steps to recruit a substantive County Secretary for Nairobi City County. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19209/eng@2025-12-05 7

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b. A Declaration that by failing to promptly and expeditiously undertake competitive recruitment of a County Secretary for Nairobi City County in view of the vacancy in said office, the 1st, 2nd and 3rd respondents have violated articles 27, 35 and 47 of the Constitution of Kenya, 2010. c. A Declaration that the exercise by Patrick Analo Akivaga of the functions of Acting County Secretary after the expiry of the initial six months following his appointment in April 2023 was illegal, null and void. d. A Declaration that the continued exercise by Godfrey Akumali of the functions of County Secretary in acting capacity undermines the recruitment of a substantive office-holder and is therefore illegal, null and void. e. A Mandatory Order compelling the 1st, 2nd and 3rd respondents to take immediate measures and/or steps to recruit a substantive County Secretary for Nairobi City County, and finalise the recruitment within the applicable statutory timelines. f. A Mandatory Order compelling the 1st, 2nd and 3rd respondents to report to the Honourable Court within fifteen (15) days of this judgment the measures and/or steps taken to ensure compliance with Order (v) above. g. A Mandatory Order compelling the 4th respondent to immediately refund any and all allowances or monies paid to him by virtue of his then-position as Acting County Secretary after the expiry of the initial six months following his appointment in April 2023. h. Costs and interest thereof of this Petition. i. Any further relief or orders that the Honourable Court may deem just and fit to grant. Background 3. The office of the County Secretary, Nairobi City County, became substantively vacant upon the removal of Mr. Peter Kariuki in September 2018. Since that date, the position has been occupied exclusively by persons serving in an acting capacity. The petitioners aver that various individuals, including Dr. Pauline Kahiga, Mr. Jairus Musumba and Mr. Patrick Analo Akivaga, have held the office in that interim manner. They state that in February 2023 the Governor nominated Dr. Musumba, then serving as Acting County Secretary, for substantive appointment, but that nomination was rejected by the Nairobi County Assembly on 15 March 2023. Thereafter, in April 2023, the Governor appointed Mr. Akivaga as Acting County Secretary, a position he held from April 2023 until 5 August 2024, a period of approximately fifteen months. On 5 August 2024, the Governor appointed Mr. Godfrey Akumali, the 5th respondent, as Acting County Secretary, a position he continues to occupy. 4. The petitioners assert that no substantive County Secretary has been appointed or approved by the Nairobi County Assembly to date, and no competitive recruitment process has been undertaken despite the prolonged vacancy. They emphasise that the County Secretary is an integral office established under section 44 of the County Governments Act, 2012, which designates the office holder as secretary to the County Executive Committee and head of the county public service, responsible for arranging the business of the Committee and providing leadership to the county public service. The statute, they contend, contemplates a substantive appointment and contains no authority for keeping the office vacant indefinitely. They further note that acting appointments under the Act may only be made by the lawful appointing authority and must be for a specified period. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19209/eng@2025-12-05 8

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5. The petitioners allege that the respondents’ continued failure to recruit and appoint a substantive County Secretary has infringed articles 27, 35 and 47 of the Constitution, as well as the values articulated in Articles 10 and 232. They maintain that the prolonged vacancy and the extended reliance on acting appointments are unlawful and warrant the intervention of this Court. The Petition is accompanied by a notice of motion seeking interim relief, including orders restraining the payment of further acting allowances, prohibiting the 5th respondent from continuing to act, and directing the initiation of recruitment measures. The application is supported by the petitioners’ affidavit and accompanying annexures. Petitioners’ Submission 6. The petitioners contend that the prolonged vacancy in the office of County Secretary is “unconscionable” and amounts to a dereliction of duty by the respondents. Relying on Law Society of Kenya v Attorney General [2019], they submit that under the 2010 Constitution any inaction by state officials must be justified, yet no explanation has been proffered for the failure to fill this critical office. They emphasise that the County Secretary is “instrumental” in the effective functioning of county governance, and that the vacancy undermines the objects of devolution under articles 174 and 175, as well as the constitutional obligation in article 232 to promote an efficient and high-quality public service. 7. The petitioners further rely on section 10(1) of the Public Appointments (County Assemblies Approval) Act, 2017, which requires the Governor, upon rejection of a nominee, to submit another nominee promptly. They assert that this requirement has not been complied with following the Assembly’s rejection of the February 2023 nomination, thereby contravening the law. They also invoke section 64(2) of the County Governments Act, concerning acting appointments, and section 34(3) of the Public Service Commission Act, 2017, which limits acting appointments to a six-month period. They argue that these statutory limits have been disregarded. 8. On the issue of the extended acting appointment, the Petitioners maintain that Mr. Akivaga’s service beyond the statutory six-month limit after November 2023 was unlawful and void ab initio. They submit that any official acts undertaken by him after the lapse of the six months are legally ineffectual, and that any additional remuneration he received during that period must be refunded. Citing article 226(5), they argue that state officers are personally liable for the misuse of public funds and seek an order compelling Mr. Akivaga to reimburse all acting allowances paid to him beyond the lawful period. They note that even the Public Service Commission’s policy manual recognises that allowances are not payable for acting service extending past six months. 9. As to the argument of prematurity, the Petitioners assert that no alternative remedy was available and that the issues raised fall squarely within this court’s jurisdiction under article 165(3). They argue that the Standing Orders of the County Assembly cannot oust the Court’s constitutional mandate. They add that they drew the Assembly’s attention to the protracted vacancy through letters addressed to the Speaker and Clerk dated 25 March 2024 and 29 July 2024 (Annexures KRM-4 and KRM-5), seeking information and action. In their view, the Assembly’s awareness of the situation, coupled with its failure to act, does not divest the Court of jurisdiction. They conclude that the Petition is ripe for determination and that further delay would only perpetuate continuing constitutional violations. Respondents’ Submissions 10. The 1st respondent, together with the 4th and 5th respondents, oppose the Petition. They submit that there has been no deliberate or improper failure to fill the office of County Secretary. Counsel https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19209/eng@2025-12-05 9

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for the Governor argues that the Assembly’s rejection of the nominee in March 2023 did not, of itself, constitute a violation, as the County was required to undertake further processes, including consideration by the County Public Service Board. It is their position that it was neither irrational nor unlawful for the Governor to appoint acting officials pending deliberations by the Board and the Assembly. They therefore deny any breach of articles 27 or 232. They further contend that Mr. Akivaga “ably discharged” his duties during the fifteen months he served in an acting capacity, and that the petitioners have not demonstrated any actual prejudice arising from his tenure. As regards the claim for reimbursement of acting allowances, the 1st and 4th respondents maintain that Mr. Akivaga performed lawful functions and was not unjustly enriched; they argue that it would be inequitable to require repayment of remuneration they say was legitimately earned. 11. On the question of prematurity, the 1st, 4th and 5th respondents assert that the petitioners have not discharged the burden of proving breach or prejudice. They characterise the Petition as premature, contending that no statutory provision obliges the immediate appointment of a substantive County Secretary. They submit that the petitioners could have adduced evidence of harm, which they have not done, and accordingly urge the court to dismiss the Petition for want of merit, with costs. 12. The 2nd and 3rd respondents have filed separate submissions. They argue that many of the issues raised fall within the internal functions of the County Assembly rather than the judicial province. They assert that the petitioners were obliged to present their grievances before the Assembly pursuant to its Standing Orders prior to seeking judicial recourse. In their view, the Petition is premature for failure to exhaust that procedure, noting that the Assembly has statutory oversight over appointments and ought to be permitted to discharge that role. 13. In reply, the petitioners have filed further submissions reiterating that the determination of constitutional compliance lies squarely within the jurisdiction of this court. They maintain that they notified the Assembly of the prolonged vacancy through letters referenced as Annexures KRM-4 and KRM-5, and insist that questions of constitutional principle cannot be relegated to the Assembly’s internal mechanisms. They also note that no formal evidence whether by affidavit or documentation was filed by the respondents. Analysis and Determination 14. Having considered the pleadings on record alongside the submissions of the parties, this Court distils the following issue for determination: a. Whether the respondents’ inaction in not filling the County Secretary post for more than six years contravenes the Constitution (including articles 10, 27, 47, 174–175, 232) and statutory provisions (County Governments Act 2012, Public Appointments Act 2017, Public Service Commission Act 2017). b. Whether the appointment of Mr. Patrick Akivaga as Acting County Secretary for more than the statutory limit of six months is illegal, null and void, and whether any actions or allowances during the extended acting period are invalid. c. Whether the Petition is premature in that other remedies or processes should have been exhausted first (for example, approach to the County Assembly or other forums). a. Failure to Appoint a Substantive County Secretary 15. The petition challenges the respondents’ long-standing failure to appoint a substantive County Secretary for Nairobi City County. While the Constitution does not prescribe a strict timeline for https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19209/eng@2025-12-05 10

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filling such a vacancy, the governance values in articles 10, 201 and 232, together with the objects of devolution in articles 174 and 175, impose an obligation to ensure that critical public offices are filled in a timely and transparent manner. In Law Society of Kenya v Attorney General [2019], the Court emphatically stated that the Constitution “requires justification of every governmental action, taken or not taken.” Thus, the burden lies with the State to justify extended inaction. The Petitioners assert that no justification has been offered for leaving this office vacant since 2018, and indeed none appears on the record. In Law Society of Kenya v Attorney General supra, the court held that omissions by public authorities must be justified under article 10. In the present case, the respondents have provided no factual explanation for the protracted vacancy, merely invoking pending Public Service Commission processes. 16. In the absence of any cogent justification, the inaction “does not meet the test of justification.” The Supreme Court in Institute for Social Accountability & another v Senate & 5 others [2022] similarly cautioned that “it is important to point out that the longevity of a practice does not cloak the practice with constitutional legitimacy. It is only when the courts pronounce themselves on the constitutionality of a legislation or a conduct that their constitutionality can be established.” Repetition of conduct, therefore, cannot cure an otherwise unconstitutional abstention. 17. Article 10 binds all State organs and officers to uphold the national values of accountability, transparency and public participation. In Mutua v Governor, Kitui County & 4 others; Muisyo, Acting Municipal Manager, Kitui Municipality & 3 others (Interested Parties), (Constitutional Petition 16 of 2020) [2022] KEHC 10872 (KLR) (8 June 2022) (Judgment)the High Court observed that “state organs and State officers in all their decisions or activities” must reflect the values and principles in article 10. Article 232(1)– (2) similarly requires public service to be efficient, effective, accountable and responsive, grounded in professionalism, merit and equality. As that court held, county secretaries, as heads of county public services, must “respect inter alia principles of equality in employment, transparency [and] accountability” and ensure non-discriminatory appointments. A vacancy spanning years defeats these constitutional imperatives. 18. These constitutional provisions aim to promote good governance and to guard against arbitrary or capricious administration. The Respondents’ failure to initiate or conclude a recruitment process subverts these values. A key office left vacant for years is incompatible with accountability and effective administration; it deprives the county of competent leadership and impairs the public’s entitlement to merit-based, transparent governance. The prolonged vacancy therefore undermines articles 10 and 232. 19. Article 47 guarantees expeditious, efficient, lawful, reasonable and procedurally fair administrative action, together with the right to written reasons where administrative action adversely affects rights. Even though inaction is an omission rather than an affirmative act, the values of article 47 nonetheless apply to administrative conduct. Courts have emphasised that Article 47 protects against unfair administrative processes in public appointments. As the High Court stated in Solanki v Nairobi Gymkhana & another (Petitioner E480 of 2023), Article 47 “guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable, and procedurally fair.” Article 47 further requires written reasons where rights may be impacted. Here, the failure to advertise, vet or fill the County Secretary post has denied prospective candidates the benefit of a fair process. No reasons have been given for the inaction, and the mandatory competitive process has not commenced. Such omissions fall short of the procedural fairness and transparency demanded by article 47, leaving both prospective applicants and the public without any explanation. 20. The purpose of devolution is to bring government closer to the people through democratic and accountable exercise of power and efficient service delivery. Articles 174 and 175 require county https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19209/eng@2025-12-05 11

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governments to realise these objectives consistently with the values of article 10 and the principles of article 232. In Thuku Kirori & 4 others v County Governemnt of Murang’a [2014] KEHC 4667 (KLR) , the High Court underscored that Article 174(c) obliges counties “to promote social and economic development and provide proximate, and easily accessible services.” The County Secretary, as head of the county public service, is integral to the discharge of this mandate. Leaving the office unfilled impairs the county’s ability to manage the public service and to deliver services effectively, thereby undermining the devolution objectives of accountability and access to services under articles 174 and 175. The omission also deprives the County Assembly of its constitutional role of vetting and approving a nominee, distorting the constitutional balance within the county executive structure. In sum, the conduct contravenes the constitutional scheme of devolved governance. 21. Article 27 prohibits discrimination and guarantees equality of opportunity in public employment. Although no specific claimant of unequal treatment has been identified, a vacant office denies all potential applicants an equal opportunity to compete. The failure to conduct a competitive recruitment process therefore offends the spirit of article 27, which is intertwined with the publicservice values of fairness and equality. As emphasised in Mutua supra, public appointments must respect equality in employment. By declining to open the County Secretary post for competition, the respondents have insulated the position from qualified applicants and disregarded statutory requirements. This outcome runs counter to the Constitution’s guarantee of equal access to public office. 22. The County Governments Act expressly establishes the office of County Secretary and prescribes its mode of appointment. section 44(1) creates the office, and section 44(2) mandates that it “shall be competitively sourced … by the Governor and, with the approval of the County Assembly, appointed by the Governor.” The Act designates the County Secretary as head of the county public service and contemplates an open recruitment process followed by Assembly vetting. The respondents’ failure to source, nominate or appoint any person to the office is a clear breach of section 44. Section 64, which governs acting appointments, requires that they meet substantive qualifications and be for a “specified period” only. There is no evidence that any acting appointment was followed by substantive recruitment, and successive acting appointments extending over six years cannot be reconciled with section 64(2). The statutory framework contemplated prompt compliance; ignoring it is not contemplated by law. 23. The Public Appointments (County Assemblies Approval) Act 2017 reinforces mandatory legislative oversight. Section 4 provides that “an appointment under the Constitution or any other law for which the approval of a County Assembly is required shall not be made unless the appointment is approved by the relevant County Assembly.” By virtue of sections 44(2) and 45 of the County Governments Act, the County Secretary is such an office. No nomination or approval process has been initiated, and the respondents have thereby failed to comply with this statutory scheme. 24. The Public Service Commission Act 2017 further underscores the constitutional commitment to meritbased public service. Section 17 obliges the Commission to ensure that appointments comply with article 232(g), (h) and (i) of the Constitution which demand equitable, inclusive and merit-based public service. The prolonged vacancy is incompatible with these obligations and with the efficient, valuesdriven administration envisaged by the County Governments Act. The prolonged vacancy cannot be squared with the PSC Act’s directive or with the County Governments Act’s vision of an efficient, values‑driven county administration. 25. In conclusion, the prolonged failure to appoint a substantive County Secretary has no lawful basis. the Constitution anticipates a functional county executive led by a duly appointed County Secretary, and the statutory scheme imposes concrete duties to recruit and appoint that officer. The Respondents https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19209/eng@2025-12-05 12

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have not complied with any of these requirements during the six-year vacancy. I therefore find that the Respondents’ conduct violated articles 10, 47, 174, 175 and 232 of the Constitution, undermined the equal-opportunity principle of article 27, and contravened the County Governments Act, the Public Appointments (County Assemblies Approval) Act, and the Public Service Commission Act. No compelling justification for this dereliction has been demonstrated. 26. Accordingly, I find that the respondents acted in contravention of the Constitution and applicable statutes. b.Legality of Extended Acting Appointment 27. The second issue concerns the legality of Mr. Akivaga’s extended acting appointment. The governing law is unequivocal: an acting appointment “shall not exceed a period of six months”. This limit, set out in section 34(3) of the Public Service Commission Act 2017 (PSC Act), is reinforced by the statutory framework governing county administration. In the present case, the 1st respondent retained Mr. Akivaga in the acting position for approximately fifteen months from April 2023 to August 2024 well beyond the statutory ceiling. This contravened section 64(2) of the County Governments Act, which requires acting appointments to be for a specified short duration, and directly violated section 34(3) of the PSC Act. On the basis of these provisions, the petitioners are correct in asserting that Mr. Akivaga’s tenure after the initial six months was unlawful and void. 28. In Ndalut & Libabu v Nairobi City Water & Sewerage Co. Ltd (2025), the court recognised that retaining an employee in an acting post “for over three years was unlawful”. By analogy, an acting appointment exceeding the six-month statutory maximum cannot be legitimized through acquiescence or administrative convenience. It follows that Mr. Akivaga’s exercise of the County Secretary’s functions after the lapse of the six-month period was illegal, null and void. 29. It further follows that any decisions or acts performed by him during that unlawful period were without legal effect, and that any remuneration received in violation of the six-month rule was paid contrary to law. Article 226(5) provides that state officers who cause unauthorized expenditure must make good the loss. On the evidence, Mr. Akivaga, the 4th respondent, received acting allowances after November 2023 in excess of what the law permits. Having found those payments unlawful, would be appropriate to require reimbursement. 30. The respondents contend that it would be inequitable to recover salary already earned, while the petitioners argue that equity cannot cure payments made in breach of constitutional and statutory limits. The purpose of section 34(3) is clear: to prevent open-ended acting appointments and the financial benefits associated with them. An officer who continues to draw acting allowances beyond six months would on the face of it not be lawfully entitled to that remuneration. 31. However, as a Court of Equity, it would be unjust to apply this principle retrospectively to a public officer who performed the role in question in pursuit of the public good, albeit illegally, and for whom it has not been demonstrated purposively acted in blatant disregard of the law so as to create a position of unjust enrichment that this Court would have to reverse. 32. I also take the position that the length of the service outside of the statutory period would result in a large refund position that would likely be difficult if not impossible for the 4th respondent to reimburse without significant hardship to him. I therefore decline to order that the 4th respondent refund all allowances drawn on account of the Acting County Secretary position after the statutory six-month period; and I do find and hold that the same shall apply prospectively from the date of this judgment and not retrospectively. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19209/eng@2025-12-05 13

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b.Prematurity of the Petition 33. The respondents further contend that the petitioners ought first to have petitioned the County Assembly or otherwise exhausted local processes before approaching this Court. That submission is unconvincing. There exists no constitutional or statutory provision barring recourse to the High Court in circumstances such as these. Article 165(3)(b) expressly vests this court with jurisdiction to determine petitions alleging violation of the Constitution. The Standing Orders of the County Assembly cannot curtail or oust that jurisdiction. Moreover, the petitioners are not challenging questions of internal assembly procedure; rather, they challenge executive action or prolonged inaction relating to a constitutional office. Such matters plainly fall within the court’s supervisory and judicial review mandate. 34. In addition, the material before the court demonstrates that the petitioners took steps to notify the Assembly of their concerns. Their affidavit and submissions record that they wrote formal letters to the Speaker and the Clerk on 25 March and 29 July 2024 (Annexures KRM-4 and KRM-5), seeking information regarding the appointment of Mr. Akivaga. The Assembly was therefore placed on notice. According to the petitioners, no substantive action followed. Having notified the responsible authorities and waited without meaningful response, the petitioners were entitled to seek judicial intervention. Their conduct negates any suggestion of forum shopping or procedural impropriety. 35. The High Court consistently entertains public interest petitions where no adequate alternative remedy exists, or where such a remedy would be ineffective. In this case, the only conceivable alternative would have been to wait indefinitely for the County Public Service Board and the Assembly to act, notwithstanding their demonstrated inaction. The Petitioners have not bypassed any mandatory grievance mechanism. Accordingly, the Petition is not premature and properly raises justiciable issues of constitutional compliance. Disposition 36. The court finds and holds that the respondents’ failure to appoint a substantive holder of the Office of County Secretary for a period exceeding six years constitutes a violation of the Constitution of Kenya, 2010, in particular articles 10, 27, 47, 174, 175 and 232. The prolonged inaction equally contravenes the statutory framework governing county administration, including sections 44(1) - (2), 45 and 64 of the County Governments Act, 2012; sections 3–6 of the Public Appointments (County Assemblies Approval) Act, 2017; and sections 17 and 18 of the Public Service Commission Act, 2017. 37. This Court further finds that the continued exercise of the functions of the County Secretary by Mr. Patrick Analo Akivaga after the expiry of six months from his initial acting appointment in April 2023, and without adherence to the statutory process for extension or confirmation, was unlawful, irregular and constitutionally impermissible. Any continued service in that capacity beyond October 2023, without County Assembly approval and competitive recruitment, is illegal, null and void ab initio. 38. This court also finds that the Petition is not premature. The Petitioners have properly invoked this court’s jurisdiction under articles 22, 23 and 165(3)(b), (d) and (e) of the Constitution. The issues raised concerning constitutional governance, legality of public appointments and accountability in the exercise of public power are justiciable, ripe, and appropriate for determination by this Court. Orders 39. Accordingly, the Petition is allowed, and the court hereby makes the following Declarations and Orders: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19209/eng@2025-12-05 14

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a. A Declaration be and is hereby issued that the failure by the Respondents to appoint a substantive County Secretary for Nairobi City County for over six years is unconstitutional, unlawful, and in contravention of articles 10, 27, 47, 174, 175, and 232 of the Constitution and sections 44, 45, and 64 of the County Governments Act, 2012; b. A Declaration be and is hereby issued that the continued performance of the functions of the County Secretary by Mr. Patrick Analo Akivaga beyond six months after his acting appointment in April 2023, without compliance with the procedure set out under the County Governments Act and without approval of the County Assembly, is unconstitutional, unlawful, and null and void; c. A Declaration be and is hereby issued that the payment of acting allowances to any person purporting to act as County Secretary beyond the six-month statutory limit without a valid extension and Assembly approval is unlawful and constitutes unauthorised public expenditure; but in the circumstances of this Case the same shall not be reimbursed and the same shall apply prospectively; d. An Order of mandamus be and is hereby issued compelling the 1st respondent (Governor of Nairobi City County) to, within sixty (60) days from the date of this Judgment, initiate a competitive recruitment process for the position of County Secretary in accordance with section 44(2) of the County Governments Act and submit a nominee to the Nairobi City County Assembly for approval within thirty (30) days of the lapse of that former period; and e. Each party shall bear its own costs, considering the public interest nature of this Petition. Ordered accordingly. File closed accordingly. DATED, SIGNED, AND DELIVERED VIRTUALLY THIS 5TH DAY OF DECEMBER, 2025. ………………………………………………………………………….. BAHATI MWAMUYE MBS JUDGE In the presence of : Counsel for the Petitioners: Mr. Owiso Counsel for the 1sr, 4th and 5th Respondent: Mr. Ombwoni h/b Mr. Kahesho Counsel for the 2nd and 3rd Respondents: Mr. Kokebe Court Assistant: Ms. Lwambia https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19209/eng@2025-12-05 15

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