High Court upholds appointment of PSC vice chair Mary Kimonye, three commissioners

The High Court has upheld the appointment of President William Ruto’s Public Service Commission (PSC) Vice Chairperson Mary Kimonye and three other commissioners, dismissing a petition that challenged the process over claims of ethnic imbalance, political bias, breach of staggered appointment rules and exceeding the constitutional membership cap.

In a ruling on Tuesday, Justice Bahati Mwamuye found that the petitioners failed to prove any illegality, irrationality or procedural impropriety in the process.

The petitioners, Dr Magare Gikenyi and activist Eliud Matindi, had argued that the appointments of Kimonye, Boya Molu, Irene Asienga and Francis Meja violated the Constitution and the PSC Act.

“This court does not sit in judgment over the wisdom of appointments, but only their legality,” Justice Mwamuye ruled, stating that there was no evidence of any constitutional or legal violations in the selection process.

“In this case, the petitioners have not demonstrated illegality, irrationality, or procedural impropriety. Accordingly, and for the reasons set out above, this court finds that the petition dated January 17, 2025, lacks merit and is hereby dismissed, with no orders as to the costs. Orders accordingly.”

While throwing out the petition, Justice Mwamuye emphasised the Judiciary’s role under the Constitution.

“In discharging its constitutional duty under Article 165, clause 3, paragraph D to interpret the Constitution and determine the constitutionality of public actions, this court is guided by the doctrine of separation of powers and the principle of judicial restraint,” he said.

The petitioners had claimed that Kimonye’s appointment was unconstitutional because she shares the same ethnic background as PSC Chairperson Anthony Mwaniki, thereby breaching the principle of ethnic balance.

They also challenged Meja’s appointment, alleging that he is affiliated with the United Democratic Alliance (UDA) and had participated in party campaigns, which, according to them, should disqualify him from serving on the commission.

“They are not eligible for reappointment as commissioners of the PSC, having completed their term in other commissions,” Gikenyi argued.

Additionally, the petitioners said the appointments contravened the PSC Act’s requirement for staggered terms for commissioners. They argued that appointing all commissioners at the same time undermines continuity and violates the law.

Another contention was the size of the commission’s membership. The petitioners alleged that President Ruto exceeded the constitutional limit by appointing eight members, including the Vice Chair, bringing the total number to ten, one more than the maximum allowed under Article 233(2) of the Constitution.

“This brings the total membership of the commission to 10, which violates Article 233(2) of the Constitution,” the petition read in part.

The petitioners accused the Executive and the National Assembly of disregarding constitutional safeguards and promoting “impunity and irregularities” in public service appointments.

Despite the claims, Justice Mwamuye ruled that the arguments were unsubstantiated and upheld the appointments as lawful and constitutional.

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Aggrieved by the decision, Dr Magare said he intends to appeal.

“I wish to be supplied with certified copies of the judgment and the typed proceedings to enable us to file an appeal at the Court of Appeal,” he said.

The court allowed the request.