Dr. Magare-gikenyi B v Judicial Service Commission & 2 others

BETWEEN DR. MAGARE-GIKENYI B.……………..………….……………….……………..……..PETITIONER VERSUS JUDICIAL SERVICE COMMISSION.................................................1 ST RESPONDENT CHIEF JUSTICE OF THE REPUBLIC OF KENYA……………………………….2 ND RESPONDENT THE HON. ATTORNEY-GENERAL ……………………………..…………………3 RD RESPONDENT AND HON.JUSTICE MWITA ENOCK CHACHA …………….….……………1STINTERESTED PARTY HON.JUSTICE MRIMA ANTHONY CHARO…………..……………2ND INTERESTED PARTY HON.JUSTICE MABEYA ALFRED…………………….………………….3RD INTERESTED PARTY HON.LADY JUSTICE BOR ANTONINA KOSSY………………………4TH INTERESTED PARTY HON.JUSTICE EBOSO BERNARD MWERESA………………………5TH INTERESTED PARTY HON.JUSTICE MUTUNGI CHARLES KARIUKI………………………6TH INTERESTED PARTY HON.LADY JUSTICE MEOLI CHRISTINE WANJIKU……….………7TH INTERESTED PARTY HON.JUSTICE OHUNGO DALMAS OMONDI……………………..8TH INTERESTED PARTY HON. JUSTICE OGEMBO DANIEL OGOLA…………………………….9TH INTERSTED PARTY HON.JUSTICE MURIITHI EDWARD MUTHOGA…………………10TH INTERESTED PARTY HON.JUSTICE OBAGA ELIJAH OGOTI……………………………….11TH INTERESTED PARTY HON.JUSTICE MUTHUKU FRANCIS GIKONYO………………….12TH INTERESTED PARTY HON.JUSTICE KIMONDO GEORGE KANYI………………………13TH INTERESTED PARTY HON.LADY JUSTICE NZIOKA GRACE LIDEMBU…………………14TH INTERESTED PARTY HON.LADY JUSTICE ONG'UNDI HEDWIG IMBOSA…………...15TH INTERESTED PARTY HON.JUSTICE NGAAH JAIRUS NGAAH…………………………….16TH INTERESTED PARTY HON.JUSTICE WAKIAGA JAMES…………………………………………………17TH INTERESTED PARTY HON.JUSTICE DR. JOSEPH SERGON KIPLAGAT………18TH INTERESTED PARTY HON.JUSTICE SILA JOSEPH MUNYAO………………………………19TH INTERESTED PARTY HON.JUSTICE MBOYA JOSEPH OGUTTU………………………….20TH INTERESTED PARTY HON.LADY JUSTICE NDOLO LINET…………………………………21ST INTERESTED PARTY HCCHRPET NO. E032 OF 2025 JDT P a g e 2 | 15

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HON.LADY JUSTICE CHEPKEMOI LOICE KOMINGOI…………22ND INTERESTED PARTY HON.LADY JUSTICE NJUGUNA LUCY MWIHAKI……………..23RD INTERESTED PARTY HON.LADY JUSTICE MBUGUA LUCY NGIMA…………………….24TH INTERESTED PARTY HON.LADY JUSTICE MUIGAI MARGARET WARINGA………25TH INTERESTED PARTY HON.JUSTICE MAKAU WA NZIOKI…………………………………..26TH INTERESTED PARTY HON.JUSTICE NDUMA MATHEWS NDERI………………………..27TH INTERESTED PARTY HON.JUSTICE MAKAU ONESMUS NDUMBUTHI………………28TH INTERESTED PARTY HON.JUSTICE MWONGO RICHARD MURUTU………………….29TH INETRESTED PARTY HON.JUSTICE LIMO ROBERT KIPKOECH…………………………30TH INTERESTED PARTY HON.JUSTICE RADI DO STEPHEN OKIYO………………………….31ST INTERESTED PARTY MUINDI JACQUELINE MBITHE MWINZI………………………….32ND INTERESTED PARTY MATHENGE WAWERU GUANDARU…………………………………33RD INTERESTED PARTY HASSN AHMED ISSACK…………………………………………………..34TH INTERESTED PARTY MURUNGI BROWN KAIRARIA…………………………………………35TH INTERESTED PARTY KINISU DAVID SIFUNA……………………………………………………36TH INTERESTED PARTY OPINI JULIUS ONYONI……………………………………………………37TH INTERESTED PARTY DR. OUMA STEPHEN………………………………………………………38TH INTERESTED PARTY PAUL LILIAN……………………………………………………………………39TH INTERESTED PARTY KATWA JOSEPH KIPCHUMBA KIGEN……………………………….40TH INTERESTED PARTY HON.JUSTICE MUSYOKA WILLIAM MUSYA………………………41ST INTERESTED PARTY JUDGMENT INTRODUCTION 1. What is before this Court is the Petition and Notice of Motion dated 23 rd January 2025, brought by the Petitioner, Dr. Magare-Gikenyi J. Benjamin, a Kenyan citizen and Consultant Trauma and General Surgeon employed by the County Government of Nakuru, who approaches this Court in his own capacity and in the public interest pursuant to Articles 22 and 258 of the Constitution. The Petitioner describes himself as sui juris and compos mentis and invokes the jurisdiction of this Court on the basis of an asserted constitutional duty to uphold and defend the Constitution, alleging violations arising from the recruitment process of Judges of the Court of Appeal and the High Court undertaken by the Judicial Service Commission (1st Respondent). HCCHRPET NO. E032 OF 2025 JDT P a g e 3 | 15

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2. The Petition is supported by a Supporting Affidavit sworn by the Petitioner together with annexed documentary evidence, including Gazette Notice No. 1076 dated 30th January 2024 declaring vacancies in the office of Judge of the Court of Appeal, Gazette Notice No. 1271 dated 5 th February 2024 declaring vacancies in the office of Judge of the High Court, Gazette Notice No. 4932 dated 22nd April 2024 containing the list of applicants, shortlisted candidates and interview schedules, and Gazette Notice No. 396 dated 15 th January 2025 (published on 17th January 2025), which is impugned as effecting the revocation of the recruitment process after the process had substantially progressed. 3. The Petitioner’s case is that the said recruitment process created a legitimate expectation under Article 47 of the Constitution that it would be concluded fairly, lawfully, and transparently, and that the abrupt revocation thereof was arbitrary, procedurally unfair, and unconstitutional. 4. The 1st Respondent opposed the Petition through a Replying Affidavit sworn on 6th February 2026 by Winfridah B. Mokaya, Chief Registrar of the Judiciary and Secretary to the Commission, and filed submissions on even date. The 1 st Respondent also relies on National Treasury Circular No. 6/2024 dated 28 th June 2024 and Circular No. 8/2024 dated 5 th July 2024, as well as Gazette Notice No. 396 of 15th January 2025 (published on 17th January 2025), contending that the impugned decision was necessitated by binding fiscal constraints and lawful administrative considerations affecting all State organs. HCCHRPET NO. E032 OF 2025 JDT P a g e 4 | 15

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5. The 2nd Respondent, the 3rd Respondent, and all Interested Parties did not enter appearance and did not file any pleadings, affidavits, or submissions in these proceedings and therefore did not participate in the hearing of the Petition. THE PETITIONER’S CASE 6. The Petitioner’s case is premised on the alleged unconstitutionality and procedural impropriety attending the revocation of an ongoing judicial recruitment process undertaken by the 1st Respondent, the Judicial Service Commission. The Petitioner, invokes the jurisdiction of this Honourable Court in his own interest and in the public interest pursuant to Articles 22 and 258 of the Constitution. 7. He deposes that the Petition and Notice of Motion are anchored on the need to enforce the Constitution of Kenya, 2010, and to ensure that State organs act within constitutional bounds, particularly in adherence to the Bill of Rights, the rule of law, and principles of good governance. He further asserts that he has perused the pleadings and adopts the same as part of his evidence, contending that the Respondents’ acts and omissions amount to ongoing violations of the Constitution. 8. The Petitioner relies on documentary evidence annexed to his supporting affidavit, including Gazette Notice No. 1076 dated 30 th January 2024 declaring vacancies for Judges of the Court of Appeal; Gazette Notice No. 4932 dated 22nd April 2024 containing the list of applicants, shortlisted candidates, and interview schedule, the Judicial Service Commission public notices and website publications; and Gazette Notice No. 396 dated 15th January 2025 HCCHRPET NO. E032 OF 2025 JDT P a g e 5 | 15

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(published on 17th January 2025) revoking the recruitment process. A parallel recruitment process for the High Court was also initiated vide Gazette Notice No. 1271 dated 5th February 2024. 9. It is the Petitioner’s case that the recruitment process progressed through lawful and structured stages, thereby giving rise to a legitimate expectation that the process would be concluded in accordance with Article 47 of the Constitution. He contends that the unilateral revocation of the process through Gazette Notice No. 396 of 15th January 2025, without notice, reasons, or hearing, was arbitrary, procedurally unfair, and in breach of both Article 47 of the Constitution and Section 4(3) of the Fair Administrative Action Act, No. 4 of 2015. 10. He further submits that the impugned decision offends the doctrine of legitimate expectation as articulated in Oindi Zaippeline & 39 Others v Karatina University & Another [2015] eKLR and Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR, and violates the principle of legality as enunciated in Entick v Carrington (1765) 2 Wils 275 and reaffirmed in Salaries and Remuneration Commission & Another v Parliamentary Service Commission & 15 Others [2020] eKLR. 11. The Petitioner also invokes Article 201 of the Constitution on prudent use of public resources, arguing that the abrupt termination of a recruitment process already significantly advanced constitutes wasteful expenditure of public funds. He further alleges violation of Article 27 on equality and nondiscrimination, contending that similarly situated applicants were subjected HCCHRPET NO. E032 OF 2025 JDT P a g e 6 | 15

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to differential treatment without objective justification. Reliance is placed in Masai Mara (SOPA) Limited v Narok County Government [2016] eKLR and Peter K. Waweru v Republic [2006] eKLR. 12. The Petitioner additionally relies on Articles 1, 3, 10, 28, 41, 43, 46, 48, 73, 75, 172, 248, 249, and 232 of the Constitution, and asserts that the Respondents’ actions undermined the independence and accountability of constitutional commissions. The Petition is further advanced on public interest grounds, with reliance placed on Pius Wanjala v Cleopa Mailu & 4 Others [2016] eKLR and Kenya Anti-Corruption Commission v Deepak Chamanlal Kamani & 4 Others [2014] eKLR. 13. It is his case that the Respondents’ actions were unconstitutional, unlawful, irrational, and procedurally unfair, warranting intervention through declaratory reliefs and judicial review orders of certiorari, prohibition, and mandamus, as well as compensation to affected applicants. THE 1ST RESPONDENT’S CASE 14. The 1st Respondent, the Judicial Service Commission, opposes the Petition through the affidavit of Winfridah B. Mokaya, Chief Registrar of the Judiciary and Secretary to the Commission, and contends that the Petition and Notice of Motion are misconceived, fatally defective, and an abuse of the court process. 15. It is deposed that the Commission is a constitutional body established under Article 171 of the Constitution and mandated under Article 172(1)(a) to recommend persons for appointment as Judges of superior courts. It is HCCHRPET NO. E032 OF 2025 JDT P a g e 7 | 15

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further independent under Article 249 of the Constitution and is only subject to the Constitution and the law. 16. The 1st Respondent confirms that the recruitment process was lawfully initiated in early 2024 through Gazette Notice No. 4932 (Court of Appeal) and Gazette Notice No. 1271 (High Court), following declaration of vacancies in January and February 2024. However, it is its case that the process was subsequently disrupted by a nationwide fiscal crisis precipitated by the rejection of the Finance Bill 2024 on 26th June 2024 under Article 115(1)(b) of the Constitution. 17. Following the resulting fiscal shortfall, the National Treasury issued Circular No. 6/2024 dated 28th June 2024, and Circular No. 8/2024 dated 5 th July 2024, introducing stringent expenditure ceilings and downward revision of budgetary allocations across all State organs. These measures significantly reduced the Judiciary’s budget under Vote No. 1261 and the Commission’s allocation under Vote No. 2051, necessitating austerity measures. 18. In response, and in compliance with Article 201 of the Constitution on prudent use of public resources, the Commission suspended the recruitment process on 3rd July 2024 and subsequently cancelled interviews for both the Court of Appeal and High Court positions. It is further deponed that despite engagements with the National Treasury, no sufficient funding was secured to sustain the recruitment process. 19. Consequently, on 15th January 2025, the Commission revoked the advertised vacancies through Gazette Notice published on 17 th January 2025. The HCCHRPET NO. E032 OF 2025 JDT P a g e 8 | 15

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Respondent maintains that this decision was lawful, rational, and necessitated by binding fiscal constraints, and did not violate Article 47 or the Fair Administrative Action Act. 20. It is further contended that legitimate expectation cannot arise in the absence of guaranteed budgetary allocation or where continuation of the process would contravene constitutional fiscal obligations under Articles 201 and 206 of the Constitution and the Public Finance Management Act. 21. The 1st Respondent further argues that the Court lacks jurisdiction to interfere with recruitment processes that have since progressed, including the appointment and swearing in of Judges of the Court of Appeal, and that any challenge to judicial appointments is exclusively governed by Article 168 of the Constitution. 22. It is additionally submitted that the Petition is overtaken by events, as recruitment was later resumed through fresh advertisements issued in 2025, leading to the completion of part of the process. Reliance is placed on Anarita Karimi Njeru v Republic [1979] KLR 154, Owners of Motor Vessel “Lillian S” v Caltex Oil Kenya Ltd (1989) KLR 1, Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR, Justus Kariuki Mate v Martin Nyaga Wambora (2017) eKLR, and Republic v National Treasury and Economic Planning & Another (Ex parte Law Society of Kenya) [2025] KEHC 8955 (KLR). 23. The 1st Respondent therefore prays that the Petition and Notice of Motion be dismissed with costs. HCCHRPET NO. E032 OF 2025 JDT P a g e 9 | 15

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ANALYSIS AND DETRMINATION 24. Having considered the pleadings, affidavits, and rival submissions by the parties, the issues falling for determination are as follows: i. Whether the present Petition and Notice of Motion have been overtaken by events and are therefore moot. ii. Whether the revocation of the recruitment process for Judges of the Court of Appeal and the High Court vide Gazette Notice No. 396 dated 15th January 2025 violated the Constitution, particularly Article 47 and the doctrine of legitimate expectation. iii. Whether the Petitioner is entitled to the reliefs sought in the Petition and the Notice of Motion. iv. Who should bear the costs of the proceedings. Whether the present Petition and Notice of Motion have been overtaken by events and are therefore moot 25. The central grievance in the present Petition concerns the decision of the 1 st Respondent to revoke the recruitment process for Judges of the Court of Appeal and the High Court vide Gazette Notice No. 396 dated 15 th January 2025 and published on 17th January 2025. The Petitioner contends that the said revocation was unconstitutional, unlawful, procedurally unfair, and violative of the doctrine of legitimate expectation. 26. The Petitioner’s argument is founded on the position that once the Judicial Service Commission initiated the recruitment process through Gazette Notices Nos. 1076 of 30 th January 2024, 1271 of 5 th February 2024, and 4932 of 22nd April 2024, shortlisted candidates and scheduled interviews, a HCCHRPET NO. E032 OF 2025 JDT P a g e 10 | 15

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legitimate expectation crystallized that the process would proceed to its lawful conclusion unless terminated in accordance with the Constitution and the Fair Administrative Action Act. He further asserts that the subsequent revocation of the process, without notice, reasons, or hearing, offended Articles 10, 27, 47, 73, 172, 201, 232 and 249 of the Constitution. 27. The 1st Respondent, on its part, maintains that the impugned decision was necessitated by extraordinary fiscal constraints occasioned by the rejection of the Finance Bill, 2024, and the consequent budget rationalisation measures implemented through National Treasury Circulars Nos. 6/2024 and 8/2024. It contends that the suspension and eventual revocation of the recruitment process were undertaken pursuant to constitutional imperatives relating to prudent public finance management under Article 201 of the Constitution and could not therefore be impugned as arbitrary or unlawful. 28. More significantly, however, the 1st Respondent contends that subsequent events have overtaken the Petition. It submits that following restoration of budgetary capacity, the Judicial Service Commission recommenced the recruitment process through fresh advertisements issued in 2025, conducted interviews, recommended successful candidates for appointment, and that Judges of the Court of Appeal have since been duly appointed, gazetted, and sworn into office pursuant to Article 166(1)(b) of the Constitution. 29. The doctrine of mootness is now firmly embedded within Kenyan constitutional adjudication. Courts do not act in vain, nor do they issue orders incapable of practical enforcement. Judicial authority under Article 159 of the Constitution is exercised for the purpose of resolving real and live HCCHRPET NO. E032 OF 2025 JDT P a g e 11 | 15

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controversies. Where intervening events have extinguished the substratum of a dispute, a court must decline invitation to engage in abstract or merely academic determination. 30. This principle was succinctly articulated in Attorney General v Law Society of Kenya & Another [2017] eKLR, where the Court held that a matter becomes moot where events occur rendering it impossible for the court to grant effective relief. Similarly, in Kenya Airports Authority v Mitu-Bell Welfare Society & 2 Others [2021] KECA 353 (KLR), the Court reiterated that courts should refrain from determination of issues whose practical significance has ceased. 31. The material before this Court demonstrates, and indeed it was not controverted, that the recruitment process which forms the gravamen of the Petition was subsequently recommenced. Fresh vacancies were advertised through Gazette Notice No. 7318 dated 4th June 2025, interviews were thereafter conducted by the Judicial Service Commission, recommendations made to the President pursuant to Article 166(1)(b) of the Constitution, and appointments subsequently effected vide Gazette Notice No. 1000 dated 27 th January 2026. Fifteen Judges of the Court of Appeal have since been appointed, gazetted, and duly sworn into office. 32. In the Court’s considered view, those subsequent constitutional and administrative steps fundamentally altered the factual and legal landscape upon which the Petition was predicated. The Court cannot ignore the constitutional finality attaching to completed judicial appointments. Once appointments were made, gazetted, and oaths of office administered, the HCCHRPET NO. E032 OF 2025 JDT P a g e 12 | 15

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recruitment process ceased to exist as a pending administrative undertaking amenable to prohibition or mandamus in the manner sought by the Petitioner. 33. Indeed, Article 168 of the Constitution provides an exclusive and exhaustive mechanism for the removal of Judges from office. Courts have consistently held that constitutional office holders cannot be indirectly impeached or their appointments invalidated through collateral proceedings framed as judicial review or constitutional petitions. To entertain the present challenge beyond this stage would inevitably invite the Court into terrain expressly regulated by the Constitution itself. 34. The Petitioner urged the Court to nonetheless pronounce itself on the alleged constitutional violations, arguing that the matter raises significant public interest concerns touching on transparency, accountability, and the rule of law. While the Court readily acknowledges the public importance of judicial recruitment processes, constitutional litigation must nevertheless remain anchored on live controversies capable of redress through effective judicial relief. 35. The declaratory and judicial review orders sought by the Petitioner were principally directed at reversing or arresting the impugned recruitment revocation and compelling continuation of the earlier process. Those reliefs have now been overtaken by subsequent constitutional events. The Court cannot issue orders quashing processes already superseded by fresh recruitment procedures culminating in completed appointments. Equally, an order of mandamus compelling continuation of the earlier process would be HCCHRPET NO. E032 OF 2025 JDT P a g e 13 | 15

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legally and practically untenable in light of the appointments already effected under Article 166 of the Constitution. 36. Further, courts are enjoined under the doctrine of constitutional avoidance to refrain from determining constitutional questions where no practical utility would arise from such determination. In Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR, the Supreme Court underscored that constitutional adjudication should not be undertaken in abstract or hypothetical contexts divorced from practical necessity. 37. This Court is also cognisant of the doctrine of separation of powers and institutional comity. Judicial appointments involve a constitutionally regulated multi-agency process implicating the Judicial Service Commission and the appointing authority under Article 166 of the Constitution. Once completed, such appointments acquire constitutional sanctity subject only to the specific constitutional mechanisms governing tenure and removal. 38. The Court therefore finds that the substratum of the Petition has been overtaken by events. The issues raised are no longer capable of yielding effective judicial relief without unsettling completed constitutional processes and appointments already consummated under the Constitution. 39. Having reached that conclusion, the Court finds it unnecessary to undertake an exhaustive determination of the remaining constitutional questions concerning Article 47, legitimate expectation, or the substantive propriety of the impugned revocation. Any pronouncement thereon would amount to an HCCHRPET NO. E032 OF 2025 JDT P a g e 14 | 15

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advisory or academic opinion divorced from a live dispute requiring resolution. 40. Accordingly, the Court finds and holds that the Petition and the Notice of Motion have been overtaken by events and are therefore moot. 41. Accordingly, and for the foregoing reasons, the Court makes the following orders: A. The Petition dated 20th January 2025 and the Notice of Motion of even date are hereby dismissed. B. In view of the public interest nature of these proceedings, there shall be no order as to costs. Orders accordingly. File closed accordingly. DATED, SIGNED, AND DELIVERED VIRTUALLY THIS 28TH DAY OF MAY 2026. ……………………………………………… BAHATI MWAMUYE MBS JUDGE HCCHRPET NO. E032 OF 2025 JDT P a g e 15 | 15

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