Sheria Mtaani v The Judicial Service Commission & 1 other

JUDGMENT Introduction 1. This judgment pertains to a Constitutional Petition dated 17th May 2023, filed by Sheria Mtaani, a non-governmental organization. The Petition impugns the conduct of the 1st Respondent, the Judicial Service Commission (the Commission), during the 2022 recruitment exercise for Judges of the Court of Appeal and the High Court. The Petitioner alleges a litany of constitutional violations, centering on a lack of transparency, accountability, and procedural fairness in the shortlisting and interview processes. 2. The factual matrix giving rise to this dispute is largely uncontested. In March 2022, the 1st Respondent advertised vacancies for judicial positions. Following the advertisement, it received applications, published a list of all applicants, and subsequently released a shortlist of candidates to proceed to the interview stage. The interviews were conducted in November 2022 and were publicly televised and streamed on social media platforms. The process culminated in the appointment of Judges to the Court of Appeal and the High Court. 3. The Petitioner’s grievance arises from what it terms as anomalies in this process. Specifically, it contends that a discrepancy existed between the number of shortlisted candidates and the number ultimately interviewed, that certain shortlisted candidates were not interviewed without justification, and that the interview process itself was conducted in a manner that was demeaning, unstructured, and in violation of established guidelines and constitutional principles. The Petitioner’s Case 4. The Petitioner’s case, as crystallized in the Petition and the Supporting Affidavit, is founded on several core pillars. It asserts its locus standi to bring this matter as a public interest litigation entity under Articles 22 and 258 of the Constitution, dedicated to promoting constitutionalism, transparency, and good governance. 5. The Petitioner avers that the 1st Respondent’s interview process was fundamentally flawed. It relies on a 2021 newspaper column by Professor Makau Mutua and 2016 statements by civil society groups (Katiba Institute, International Commission of Jurists, and Kenyans for Peace with Truth and Justice) to illustrate a historical pattern of the Commission asking "superficial, mundane and irrelevant questions," thereby compromising the integrity and dignity of the process. 6. It is the Petitioner’s case that the Commission shortlisted a certain number of candidates but interviewed a different number, failing to provide any public clarification for this discrepancy. It alleges that the Commission declined to interview certain Judges and Magistrates based on "purportedly damning information" without affording them an opportunity to be heard, thus violating their rights to fair administrative action and a fair hearing. 7. The Petitioner contends that it sought information from the Commission regarding these disparities but received no response, constituting a violation of its right of access to information under Article 35 of the Constitution. 8. Consequently, the Petitioner seeks several reliefs, including declarations that the interview process lacked structure and violated candidates' rights, and orders of mandamus to compel the Commission to: disclose the names and reasons for excluding certain shortlisted candidates; publish the rules https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19213/eng@2025-12-04 2

page 2 of 11

governing the interview process; and develop and publish proper guidelines for the selection and interview of applicants. Respondent’s Case 9. The 1st Respondent, through the Replying Affidavit of its Secretary, Anne A. Amadi and its Grounds of Opposition, has mounted a robust defence on both procedural and substantive grounds. 10. Procedurally, the Respondent challenges the Petitioner’s locus standi, arguing that the Petition relates to individual rights which the aggrieved individuals, if any, are capable of enforcing themselves. It further contends that the Petition is incompetent for failing to meet the threshold of precision required in constitutional petitions as set out in the seminal case of Anarita Karimi Njeru v Republic [1979] 1 KLR 154. The Respondent argues that the Petition is replete with bare, general allegations devoid of specific particulars regarding the names of affected candidates, the nature of the mistreatment, or the specifics of the allegedly irrelevant questions. 11. Substantively, the Respondent denies all allegations of constitutional violation. It outlines in detail the comprehensive statutory framework governing judicial recruitment, primarily found in the Judicial Service Act and its First Schedule, which provides a clear, structured procedure and criteria for evaluation. It asserts that the process was conducted competitively, transparently, and in full compliance with the law. 12. Regarding the non-interviewing of some shortlisted candidates, the Respondent averred that it invited public feedback on the shortlisted candidates. Upon receiving adverse reports against some candidates, it served these reports upon the affected individuals, who were given an opportunity to respond. Some candidates, upon being confronted with this information, voluntarily opted out of the interviews. The Respondent emphasizes that it is bound by confidentiality provisions under Clause 5 of the First Schedule to the Judicial Service Act and cannot publicly disclose sensitive personal information or the reasons for a candidate's withdrawal to third parties. 13. The Respondent denied receiving any correspondence from the Petitioner seeking information and characterizes the Petition as a "fishing expedition" that is frivolous, scandalous, and an abuse of the court process, ripe for dismissal with costs. Petitioner’s Submissions 14. The Petitioner’s submissions vigorously defend its locus standi, citing Article 260 of the Constitution and authorities such as Trusted Society of Human Rights Alliance v. Attorney General & 2 others [2012] eKLR and Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 others [2013] eKLR, which affirm the role of NGOs in public interest litigation. 15. On the merit of the Petition, the Petitioner submitted that, through its director who is a citizen, it qualifies as a "citizen" under Article 35 with a right to access information, relying on Katiba Institute v. President’s Delivery Unit & 3 others [2017] eKLR. It argues that the Commission’s failure to interview all shortlisted candidates and its refusal to provide reasons as well as giving them an opportunity to be heard before an adverse decision is made violated Article 47 on fair administrative action and the principles of natural justice, as underscored in Judicial Service Commission v. Mbalu Mutava & another [2015] eKLR. 16. It was further submitted that the reliefs sought are necessary to uphold transparency, accountability, and procedural fairness in a process of significant public importance and the Petition should be allowed as prayed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19213/eng@2025-12-04 3

page 3 of 11

1St Respondent’s Submissions 17. The 1st Respondent’s submissions are a detailed amplification of its Replying Affidavit. It systematically addresses each prayer sought, arguing that the Petitioner has failed to establish a prima facie case for any constitutional violation. 18. On the precision threshold, it relies heavily on Anarita Karimi Njeru v Repulic (supra) and its progeny, including Mumo Matemu v Trusted Society of Human Rights Alliance (supra) and Imanyara v Independent Electoral and Boundaries Commission; Orange Democratic Movement (Interested Party) [2022] KEHC 13341 (KLR), to demonstrate the Petition’s fatal lack of specificity for instance by failing to provide any particulars of the alleged mistreatment or abuse of power. 19. Regarding the alleged violation of the constitutional rights, it was submitted that the Petitioner failed to demonstrate how the alleged rights were violated. It is argued that the Petitioner did not show which aspects of the recruitment process was not transparent or accountable, and that the Petitioner did not disclose the date or the form which the alleged communication was made to the commission therefore warranting a breach of Article 35. 20. Concerning the violation of Article 47, it is argued that the Petitioner failed to disclose the number of candidates shortlisted but were not interviewed, the names or any other details of the candidates allegedly shortlisted but not interviewed and the particulars of the Judges and Magistrates the Commission declined to conduct interviews, when the Commission declined and reason given for declining. It is argued that the Commission followed the due process in conducting the interview as per the Judicial Service Act. Further it is maintained that some candidates who had adverse reports against them opted out of the interviews on their own volition upon being served or informed of the adverse reports against them. 21. Furthermore, it was submitted that those not interviewed and who had opted out of the interviews on their own volition wrote to the Commission requesting to be supplied with reasons for their exclusion from the interviews, which the commission did by availing the reasons to them individually as the commission can only give the reasons to the specific candidate and not third parties pursuant to the provisions of clause 5 of the First Schedule to the Judicial Service Act and to safe guard their right to privacy. 22. It was further submitted that the Petitioner is not entitled to the reliefs sought as it has failed to demonstrate the alleged violation of constitutional rights, the particulars of the alleged individuals who were refused and denied interviews. It was also submitted that the orders of mandamus sought are impermissible. It argues that compelling the disclosure of candidate information would violate confidentiality laws and that the orders seeking to compel the development of new guidelines are a request for structural interdicts that amount to a judicial overreach into the domain of the Commission and the Legislature, citing the Supreme Court's guidance in Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae) [2021] KESC 34 (KLR). It reiterates that the Commission’s independence under Article 249(2) of the Constitution shields it from such directional orders. Issues For Determination 23. Having meticulously considered the pleadings, affidavits, and submissions of the parties, the following issues fall for this Court’s determination: i. Whether the Petitioner has the requisite Locus Standi to institute these proceedings. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19213/eng@2025-12-04 4

page 4 of 11

ii. Whether the Constitutional Petition meets the threshold of precision as required by law. iii. Whether the Petitioner has established violations of Articles 35 and 47 of the Constitution regarding access to information and fair administrative action. iv. Whether the Petitioner is entitled to the reliefs sought. Analysis Of The Issues Whether the Petitioner has the requisite Locus Standi to institute these proceedings 24. The issue raised by the 1st Respondent concerning the Petitioner's legal standing to sue, or locus standi, strikes at the very heart of the court's jurisdiction to entertain this matter. The Respondent's contention is twofold: firstly, that the Petitioner, as a non-governmental organization, is an interloper in a dispute concerning the personal rights of individual judicial applicants; and secondly, that the aggrieved individuals, if any exist, are perfectly capable of vindicating their own rights without the need for an intermediary. This issue demands a thorough examination, not merely of the Petitioner's legal personality, but of the transformative philosophy underpinning the Constitution of Kenya, 2010, regarding access to justice. 25. The legal framework governing standing has undergone a seismic shift with the promulgation of the current Constitution. The archaic and restrictive approach, which required a litigant to demonstrate a specific personal interest over and above that of the general public, was a gatekeeping mechanism that often-barred legitimate public grievances from judicial scrutiny. Articles 22(1) and 258(1) of the Constitution deliberately dismantled these barriers by proclaiming that "every person has the right to institute court proceedings" claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated, or infringed, or that the Constitution itself has been contravened. 26. The definition of "person" in Article 260 is expansively crafted to include "a company, association or other body of persons whether incorporated or unincorporated." This definition is not exhaustive but is unequivocally inclusive. A registered non-governmental organization such as the Petitioner, "Sheria Mtaani," whose stated objectives are to assist the public in accessing justice and to promote constitutionalism, the rule of law, and good governance, falls squarely within this definition. It possesses a juridical personality that enables it to sue and be sued, and more importantly, to bear constitutional rights and duties, including the right to approach the court under Article 22. 27. The Respondent's argument, however, requires the court to look beyond mere juridical personality and into the nature of the rights being asserted. It is correct that the Petition makes references to the rights of specific, albeit unnamed, candidates who were allegedly not interviewed or were subjected to an unfair process. In a narrow, traditional sense, these would be personal grievances. However, to characterize this Petition solely as an aggregation of private complaints is to fundamentally misapprehend its substance. The gravamen of the Petition is an attack on the systemic and institutional conduct of the 1st Respondent, a constitutional commission. The Petitioner alleges a pattern of conduct that flouts the principles of transparency, accountability, and procedural fairness principles that are the bedrock of public trust in the judiciary. 28. The appointment of judges is not a routine administrative function; it is a sacrosanct constitutional process upon which the entire edifice of judicial independence and integrity rests. Allegations that this process is capricious, opaque, or demeaning do not merely affect the immediate candidates. They erode public confidence in the judiciary as a whole, undermine the legitimacy of its future decisions, and https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19213/eng@2025-12-04 5

page 5 of 11

strike a blow against the constitutional values enshrined in Article 10. Such allegations raise a matter of profound public interest that transcends the private interests of any individual applicant. 29. This view is powerfully fortified by the decisions of the superior courts. The Court in the landmark case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others (supra) delivered a seminal judgment on this very point. The court explicitly held that the landscape of locus standi has been fundamentally transformed by the enactment of the Constitution in 2010. It buried the hitherto stringent locus standi requirements and affirmed that an NGO whose mandate includes the pursuit of constitutionalism has the standing to file a petition in the public interest. The court wisely cautioned against fashioning hurdles on access to the courts, except only when such litigation is hypothetical, abstract or is an abuse of the judicial process. 30. Similarly, in Trusted Society of Human Rights Alliance v. Attorney General & 2 others (supra), the High Court emphasized the critical role of civil society actors as watchdogs, promoting accountability and litigating issues of public concern. The court recognized that such entities often have the capacity and mandate to litigate complex systemic issues that individual litigants, due to resource constraints or fear of reprisal, may be reluctant to pursue. 31. While quoting the decision of the Supreme Court in Mumo Matemu, the High Court in Republic v Registrar of Societies & another; Kenya International Freight & Warehousing Association (Nairobi Branch) (Exparte) [2025] KEHC 4789 (KLR) held as follows; “ The above holdings must be distinguished from cases of the Public Benefit Organizations (PBOs) formerly known as NGOs, under the Public Benefit Organizations Act No. 18 of 2013 where the Public Benefits Organizations have been found to have legal standing to institute suits/petitions and to be sued in their own name, in view of Section 10(3) of PBO Act….” “Whereas this court would not adopt the decisions made prior to the 2010 Constitution and the Mumo Matemu decision, it is clear in my mind that Associations and any other unincorporated body can institute proceedings claiming that a right or fundamental freedom in the bill of rights has been denied, violated or infringed or is threatened. However, where such suit is for their own or commercial benefit as opposed to the benefit of or in the public interest, then the society can only sue and be sued in the name of its registered officials.” 32. Furthermore, in Northern Nomadic Disabled Person's Organization (NONDO) v The Governor, County Government of Garissa & another [2013] KEHC 467 (KLR), the learned Judge considered the issue and applied the Mumo Matemu case and stated as follows, and I concur that: “ Locus standi Article 22 of the Constitution provides that: (1) Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or threatened. (2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by(a) a person acting on behalf of another person who cannot act in their own name; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19213/eng@2025-12-04 6

page 6 of 11

(b) a person acting as a member of, or in the interest of, a group or class of persons; (c) a person acting in the public interest; or (d) an association acting in the interest of one or more of its members/ Further, in the Mumo Matemu case supra, the Court of Appeal endorsed the view held by the High Court in Trusted Society case supra that the standard guide for locus standi must remain the command in article 258 of the Constitution. It provides that: (1) Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention. (2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by (a) a person acting on behalf of another person who cannot act in their own name; (b) a person acting as a member of, or in the interest of, a group or class of persons; (c) a person acting in the public interest; or (d) an association acting in the interest of one or more of its members. I need not belabor the point. Even if the petitioner was not a registered association, by dint of articles 22 and 258 of the Constitution they would still have the legal legs to stand on. The Court of Appeal however hastened to caution in the Mumo Matemu case that the person who moves the court for judicial redress in the cases of this kind must not act for personal gain or private profit, political motivation or other unspecified consideration.”[emphasis added] 33. The 1st Respondent's fallback position is that the Petitioner is merely an "intermediary" for individuals who are capable of pursuing their own claims. This argument is unpersuasive for two reasons. First, it ignores the reality that potential judicial candidates, particularly those who are sitting magistrates or judges, may be understandably hesitant to sue the very body responsible for their future promotions and career progression, creating a chilling effect that stifles legitimate challenge. Second, and more crucially, it conflates the specific injury to an individual with the general injury to the public. Even if every single aggrieved candidate were to file a suit to enforce their personal right to a fair interview, that would not address the broader, systemic challenge raised here: that the JSC's entire process is constitutionally infirm. The Petitioner is not suing as a proxy for the candidates; it is suing as a guardian of the public's interest in a transparent and accountable judiciary. 34. Therefore, I find that the Petitioner, as a body dedicated to public interest advocacy and falling within the definition of a "person" under Article 260, has the requisite locus standi to institute these proceedings. Its interest is not in the outcome of any specific candidate's application, but in ensuring https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19213/eng@2025-12-04 7

page 7 of 11

that the constitutional and statutory framework governing judicial appointments is observed, thereby upholding public confidence in the administration of justice. Whether the Constitutional Petition meets the threshold of precision as required by law 35. The principle that constitutional petitions must be pleaded with a reasonable degree of precision is a cornerstone of our jurisprudence, first articulated in the celebrated case of Anarita Karimi Njeru v Republic (supra). The rationale for this principle is to ensure that a respondent is adequately informed of the case it has to meet, thereby enabling it to prepare a meaningful defence. It also assists the court in properly defining the issues for adjudication. 36. The Court of Appeal in Mumo Matemu (supra), while reaffirming the principle in Anarita Karimi (supra), provided a nuanced interpretation, stating that precision is not coterminous with exactitude. It clarified that the requirement demands neither formulaic prescription of the factual claims nor formalistic utterance of the constitutional provisions alleged to have been violated. The ultimate question is whether the petition provides sufficient particulars to which the respondent can reply. 37. Applying this standard to the instant Petition, I find it to be gravely deficient. The Petition is replete with sweeping, generalized accusations that are entirely unanchored to specific, verifiable facts. For instance: a. The Petitioner alleges that "some applicants who were shortlisted... were not interviewed" and that the Commission declined to interview "certain judges and magistrates." However, at no point does the Petition or the Supporting Affidavit provide the names of even a single candidate who was shortlisted but not interviewed. It fails to specify the number of such candidates, the positions they applied for, or the dates on which they were supposedly excluded. This lack of basic particulars renders the allegation a mere speculative assertion. b. The Petitioner contends that interviewees were subjected to "mistreatment," "abuse of power," and "superficial, mundane and irrelevant questions." To substantiate this, it relies on a 2021 newspaper article by Prof. Makau Mutua regarding a Chief Justice interview and 2016 statements by civil society groups concerning a different recruitment cycle. These references, apart from being hearsay and pertaining to different processes, do not provide any specifics about the 2022 interviews in question. The Petition does not identify which panelist asked which irrelevant question to which specific candidate in the 2022 process. Despite the interviews being publicly televised and a matter of record, the Petitioner has not pointed to a single specific instance from the 2022 process to ground its claims. 38. In the face of such vagueness, the 1st Respondent is placed in an impossible position. How does it respond to an allegation that "some" candidates were not interviewed? How does it rebut a claim of "mistreatment" without knowing who was mistreated, how, and when? The Petitioner’s attempt to shift the burden of proof onto the Respondent by framing the case as one requiring the Respondent to "disclose" information does not absolve it of its initial burden to plead a precise and factual case. 39. The Petition, in its current form, amounts to what the Court of Appeal in Mumo Matemu case supra condemned: a petition that provided little or no particulars as to the allegations and the manner of the alleged infringements. It fails the substantive test of precision as enunciated in Anarita Karimi Njeru (supra) and its progeny. While this finding is, in itself, potentially fatal to the entire Petition, I will proceed to consider the substantive issues for completeness. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19213/eng@2025-12-04 8

page 8 of 11

Whether the Petitioner has established violations of Articles 35 and 47 of the Constitution a)On Alleged Violation of Article 35 (Access to Information) 40. Article 35(1)(a) grants every citizen the right to access information held by the State. This right is fundamental to promoting transparency and accountability. The Petitioner claims this right was violated when the Commission failed to respond to its request for information regarding the noninterviewing of shortlisted candidates. 41. Firstly, as alluded to under the precision issue, the Petitioner has not provided any evidence that such a request was ever made and received by the Respondent. The foundational fact upon which this claim rests remains unproven. 42. Secondly, and more fundamentally, the right to information is not absolute. It is subject to limitations under Article 24 and specifically, section 6 of the Access to Information Act. This section limits disclosure where it would involve the unwarranted invasion of the privacy of an individual. Furthermore, Clause 5 of the First Schedule to the Judicial Service Act imposes a strict duty of confidentiality on the Commission regarding sensitive and highly personal information, including formal disciplinary or ethical complaints, charges or grievances brought against the applicant... that did not result in public discipline. 43. This court is guided by the decision of the Supreme Court in Dande & 3 others v Inspector General, National Police Service & 5 others [2023] KESC 40 (KLR) where the apex held as follows; “ On our part, we are inclined to agree with the Court of Appeal that the appellants did not establish a demonstrable link between the rights they intended to exercise or protected and the information requested. We have reached that conclusion because firstly, the right to access to information is not an absolute right…” 44. The Respondent’s explanation that some candidates voluntarily withdrew after being confronted with adverse information from the public is plausible and aligns with its statutory mandate to ensure the suitability of judicial officers. Disclosing the names of such candidates and the specific reasons for their withdrawal would inevitably involve the dissemination of unverified, potentially damaging information, constituting a gross invasion of their privacy and potentially destroying their professional reputations. The Commission’s duty of confidentiality to the individual candidates outweighs the Petitioner’s generalized demand for information in these circumstances. The proper channel for an aggrieved candidate to seek reasons is through a personal request, not a public interest petition. 45. Therefore, the Petitioner has failed to establish a violation of Article 35. b) On Alleged Violation of Article 47 (Fair Administrative Action) 46. Article 47 guarantees the right to administrative action that is expeditious, efficient, lawful, reasonable, and procedurally fair. The Petitioner alleges a breach of this right in two ways: the non-interviewing of shortlisted candidates and the allegedly flawed conduct of the interviews. 47. Regarding the non-interviewing of candidates, the principle of audi alteram partem (hear the other side) is a key component of procedural fairness. However, this principle is triggered when an administrative action adversely affects a person’s rights or legitimate expectations. The Respondent has presented a compelling case that where adverse information was received, it was served upon the candidates, who were given a chance to respond. Some then chose to withdraw. In such a scenario, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19213/eng@2025-12-04 9

page 9 of 11

the Commission’s action was not a unilateral "exclusion" but a process that incorporated fairness. A candidate who voluntarily withdraws can hardly claim their right to a hearing was violated. 48. Furthermore, the Petitioner’s lack of specificity is again fatal. Without knowing who the affected candidates are, it is impossible for this Court to determine whether in any specific instance, the principles of natural justice were violated. The Petitioner, acting in the public interest, must at the very least provide a factual basis involving identifiable, albeit unnamed, individuals to ground such a claim. A claim based on an unidentified "some" cannot succeed. 49. Regarding the conduct of the interviews, the Petitioner’s case collapses under the weight of generality and a failure to engage with the existing legal framework. The Respondent correctly points to the First Schedule of the Judicial Service Act, particularly Clause 13, which provides an exhaustive and detailed list of criteria for evaluating candidates, covering professional competence, communication skills, integrity, fairness, good judgment, and legal experience. To claim that the Commission lacks proper structures and guidelines is to ignore this detailed statutory scheme. The Petitioner has not demonstrated how this criteria is inadequate or how it was contravened in any specific, verifiable instance during the 2022 interviews. The reliance on newspaper clippings from past processes is irrelevant and inadmissible as evidence of what transpired in the impugned process. 50. For these reasons, the Petitioner has failed to prove, on a balance of probabilities, any violation of Article 47 of the Constitution. Whether the Petitioner is entitled to the reliefs sought 51. In Mohamed & another v Attorney General & 2 others [2024] KEHC 12089 (KLR), the court dismissed the petition, stating that since the petitioners had not proven any violation of their constitutional rights, they were not entitled to any of the reliefs they sought. This highlights the direct causal link between proving a violation and being awarded remedies. In arriving at the above conclusion, the court stated thus; “ For the foregoing reasons, it is my considered finding that the petitioners have utterly failed to prove any violation or threatened violation of Articles 41(2)(a) and 43(1)(a) and (e) of the Constitution. Consequently, they are not entitled to any of the reliefs sought by them herein..” 52. The reliefs sought by the Petitioner are consequential upon a finding that constitutional violations occurred. Having found that the Petitioner has not discharged its burden of proving any of the alleged violations, it follows that the foundation for granting the reliefs crumbles. 53. In conclusion, while the Petitioner legitimately has locus standi to bring public interest litigation, it has failed to meet the fundamental requirement of pleading a precise and particularized case. Its Petition is built on generalities, speculation, and hearsay, unsupported by specific facts related to the 2022 recruitment process. 54. The Petitioner has not provided any credible evidence to substantiate its claims of constitutional violations under Articles 35 and 47. The 1st Respondent has, on the other hand, demonstrated that it followed a statutory process designed to be transparent and fair, while also protecting the confidentiality and privacy of individual candidates. 55. Public interest litigation is a vital tool for constitutional enforcement. However, it must be pursued with a sense of responsibility and a commitment to factual rigour. It cannot be used as a fishing expedition or to ventilate vague grievances without a solid evidentiary foundation. To allow such https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19213/eng@2025-12-04 10

page 10 of 11

petitions would trivialize the noble purpose of constitutional litigation and burden state organs with defending against unsubstantiated claims. 56. Consequently, the Petition dated 17th May 2023 is hereby dismissed in its entirety with no order as to costs. Orders accordingly. File Closed accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 4TH DAY OF DECEMBER 2025. BAHATI MWAMUYE MBS JUDGE In the presence of: Counsel for the Petitioner - No appearance Counsel for the Respondents – No appearance Court Assistant – Ms. Lwambia https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19213/eng@2025-12-04 11

page 11 of 11