NAIROBI, Kenya — In a ruling that could redefine the limits of executive authority in public service, the Employment and Labour Relations Court in Nairobi has dropped the hammer on a series of controversial promotions within the Office of the Attorney General.
The verdict? Unconstitutional, irregular, and against the grain of public service ethics.
The decision, delivered by Justice Byram Ongaya on Thursday, May 29, strikes down over 225 appointments—including high-profile promotions to Senior Deputy Solicitor General and Deputy Solicitor General—that were executed through a memo dated November 26, 2024.
The promotions, according to the court, failed the test of merit, transparency, and inclusivity.
Among those affected are two Senior Deputy Solicitor Generals, 13 Deputy Solicitor Generals, four Chief State Counsels, 63 Deputy Chief State Counsels, and a whopping 145 Principal State Counsels.
Here’s the kicker: of the 15 top-tier appointments made last year, nine came from the same ethnic group, and 12 were women.
Now, while gender equity is crucial, the court flagged this as a lack of proper balance and representation. Simply put, the appointments didn’t reflect the constitutional requirement for diversity in public office—whether by ethnicity, gender, or regional distribution.
Justice Ongaya minced no words in his judgment. “The impugned amendments were unconstitutional,” he declared, citing violations of Article 234(5) of the Constitution.
The promotions, he added, failed to meet the threshold of fair competition and merit-based recruitment.
The ruling didn’t stop at just canceling appointments. In a sweeping move, the court also annulled the Statute Law (Miscellaneous Amendments) Act 2024, which controversially handed over some powers of the Public Service Commission (PSC) to the Attorney General’s Office.
According to Justice Ongaya, that law attempted a constitutional sleight of hand—stripping an independent commission of its powers via “miscellaneous amendments.” The court wasn’t having it.
The legal battle began when petitioners Dr. Magare Gikenyi, Dishon Keroti Mogire, and Philemon Abuga Nyakundi challenged the appointments, calling out the opaque process and failure to reflect Kenya’s constitutional values.
They argued the promotions were rushed, uncompetitive, and tilted heavily in favor of a select few—claims the court found credible.
Attorney General nominee Dorcas Oduor, who’s been under scrutiny since her appearance before the Committee on Appointments in August 2024, defended the move.
She told the court that the Office of the Attorney General had been delinked from the mainstream public service and therefore was not bound by PSC oversight.
The problem? The court said: prove it. And she didn’t. Justice Ongaya noted that her office failed to produce clear evidence to support that claim. No documentation. No legal basis. Just a memo—and a shaky one at that.
This case underscores more than just a procedural misstep—it highlights the delicate checks and balances that keep Kenya’s public institutions in line.
When one office attempts to override constitutional mechanisms, even with good intentions, the ripple effects can undermine the very fabric of governance.
As Kenya continues to tighten its grip on public sector accountability, this ruling could set a powerful precedent. Promotions—no matter how high-profile or politically shielded—must pass the constitutional test.
