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Post Reply: High Court Upholds Appointment of PSC Vice Chair Mary Kimonye and Three Commissioners

<blockquote><div class="quotetitle">Quote from <a class="profile-link highlight-moderator" href="https://lawguide.co.ke/understanding-law/legal-forum/profile/lawyer/">Lawyer</a> on August 13, 2025, 7:00 am</div><div id="pl-7496"  class="panel-layout" ><div id="pg-7496-0"  class="panel-grid panel-no-style" ><div id="pgc-7496-0-0"  class="panel-grid-cell"  data-weight="1" ><div id="panel-7496-0-0-0" class="so-panel widget widget_sow-editor panel-first-child panel-last-child" data-index="0" data-style="{&quot;background_image_attachment&quot;:false,&quot;background_display&quot;:&quot;tile&quot;,&quot;background_image_size&quot;:&quot;full&quot;,&quot;background_image_opacity&quot;:&quot;100&quot;,&quot;border_thickness&quot;:&quot;1px&quot;}" ><div
			
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	<p dir="ltr" data-pm-slice="0 0 []">On Tuesday, August 12, 2025, the High Court in Kenya upheld the appointments of Public Service Commission (PSC) Vice Chairperson Mary Kimonye and three other commissioners, dismissing a petition that challenged the legality of their selection. Justice Bahati Mwamuye, presiding over the case, ruled that the petitioners failed to provide evidence of illegality, irrationality, or procedural impropriety in the appointment process, thereby affirming the appointments as constitutional and lawful.</p>
<p dir="ltr">The petition, filed by Dr. Benjamin Magare Gikenyi, a Nakuru-based doctor, and activist Eliud Matindi, sought to nullify the appointments of Vice Chairperson Mary Kimonye and commissioners Boya Molu, Irene Asienga, and Francis Meja. The petitioners raised several concerns, alleging that the appointments violated constitutional provisions and the PSC Act. Their arguments centered on claims of ethnic imbalance, political bias, breach of staggered appointment rules, and exceeding the constitutional limit on the number of PSC members.</p>
<p dir="ltr">The controversy began when President William Ruto nominated Mary Wanjira Kimonye as the PSC Vice Chairperson and six others as commissioners on December 20, 2024, to fill vacancies expected in mid-January 2025 and an additional vacancy anticipated in April 2025. The nominees, approved by the National Assembly, included Harun Maalim Hassan, Boya Molu, Irene Cherotich Asienga, Francis Otieno Owino, Joan Andisi Machayo, and Francis Meja, alongside Kimonye. The selection process involved a rigorous recruitment exercise, with Kimonye emerging from a pool of 57 applicants, shortlisted among nine candidates for the vice-chair position after interviews conducted between November 18 and November 27, 2024, by a panel chaired by Arthur Osiya.</p>
<p dir="ltr">Kimonye, a former Principal Secretary in the State Department for Public Service under the administration of former President Uhuru Kenyatta, brought significant experience to the role. Boya Molu, another appointee, previously served as a commissioner at the Independent Electoral and Boundaries Commission (IEBC) until his term ended in January 2024. The PSC, established under Article 233(1) of the Kenyan Constitution, comprises a chairperson, a vice chairperson, and seven commissioners, all appointed by the President with parliamentary approval.</p>
<p dir="ltr">The petitioners challenged the appointments on multiple grounds. They argued that Kimonye's appointment violated the principle of ethnic balance, as she shares the same ethnic background (Meru) as PSC Chairperson Anthony Mwaniki. They contended that this breached constitutional requirements for diversity in public appointments. Additionally, they questioned the eligibility of Boya Molu and Irene Asienga, who had previously served full six-year terms in other constitutional commissions, namely the IEBC and the Commission for Revenue Allocation (CRA), respectively. The petitioners claimed that prior service in other commissions disqualified them from PSC membership.</p>
<p dir="ltr">The inclusion of Francis Meja was also contested, with allegations that his affiliation with the United Democratic Alliance (UDA) and participation in its campaigns during the last general election rendered him unsuitable for the non-partisan role of a PSC commissioner. Furthermore, the petitioners argued that the simultaneous appointment of all commissioners disregarded the PSC Act’s requirement for staggered terms, which ensures continuity within the commission. They also alleged that President Ruto exceeded the constitutional limit of nine PSC members by appointing eight individuals, including the vice chairperson, bringing the total membership to ten, in violation of Article 233(2) of the Constitution.</p>
<p dir="ltr">The petitioners accused the Executive and the National Assembly of undermining constitutional principles and promoting impunity and irregularities in public service appointments. They sought a court order to annul the appointments and uphold constitutionalism.</p>
<p dir="ltr">Justice Bahati Mwamuye, in his ruling, rejected the petitioners' claims, stating that they failed to substantiate their allegations with evidence. He emphasized that the court's role, under Article 165(3)(d) of the Constitution, is to assess the legality of public actions, not to judge the wisdom of appointments. The judge found no proof of illegality, irrationality, or procedural impropriety in the selection process, which included public advertisements, shortlisting, interviews, and parliamentary approval.</p>
<p dir="ltr">Addressing the ethnic balance concern, Justice Mwamuye noted that the petitioners did not provide sufficient evidence to demonstrate that Kimonye’s appointment alongside Chairperson Mwaniki violated constitutional diversity requirements. On the issue of prior service, the court found no legal prohibition against Molu and Asienga serving in the PSC after completing terms in other commissions. The allegations against Meja’s political affiliation were also dismissed due to a lack of concrete evidence linking his UDA involvement to a breach of PSC eligibility criteria.</p>
<p dir="ltr">Regarding the claim of exceeding the constitutional membership limit, the court clarified that the appointments filled existing and anticipated vacancies, maintaining the PSC’s membership within the constitutional cap of nine. The judge also ruled that the simultaneous appointments did not violate the PSC Act’s staggered term requirement, as the law allows flexibility in addressing vacancies.</p>
<p dir="ltr">Justice Mwamuye underscored the principle of judicial restraint and the doctrine of separation of powers, stating that the court’s role is not to interfere with lawful executive and legislative actions. He concluded, “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.”</p>
<p dir="ltr">Following the ruling, Dr. Magare Gikenyi expressed dissatisfaction and announced his intention to appeal the decision at the Court of Appeal. He requested certified copies of the judgment and typed proceedings to facilitate the appeal process, a request the court granted. The case has drawn attention to the broader issue of public service appointments in Kenya, with ongoing debates about transparency, ethnic diversity, and adherence to constitutional guidelines.</p>
<p dir="ltr">The upheld appointments ensure that the PSC can proceed with its mandate, which includes overseeing the management and development of Kenya’s public service. The commission plays a critical role in ensuring efficiency, fairness, and accountability in the public sector, and the resolution of this legal challenge allows the new appointees to assume their roles without further delay.</p>
<p dir="ltr">The case will be mentioned again on March 4, 2025, for further directions, particularly in light of the petitioners’ planned appeal. The outcome of any appeal could have significant implications for the PSC’s composition and the broader framework of public service appointments in Kenya.</p>
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