In a judgment delivered on Friday, a five-judge bench led by Chief Justice Martha Koome ruled that the lower courts wrongly applied the doctrine of exhaustion to bar the petition filed by Dr. Magare Gikenyi, a trauma and general surgeon.

Dr. Gikenyi had challenged the December 2022 appointments, arguing that the composition of the Principal Secretaries violated the Constitution, as only 11 out of the 51 appointees were women, representing 21 per cent, contrary to the two-thirds gender principle.

He further questioned the appointment of Bernice Sialaal Lemedeket as Principal Administrative Secretary to the National Police Service Commission, arguing that the position was not provided for under the Constitution.

The ELRC struck out the petition, holding that Dr. Gikenyi ought to have first submitted objections to Parliament under Section 6(9) of the Public Appointments (Parliamentary Approval) Act, which allows members of the public to contest the suitability of nominees during approval hearings. The Court of Appeal upheld that decision.

However, the Supreme Court disagreed, finding that the lower courts mischaracterized the nature of the dispute.

“The appellant’s contention was not with the suitability of the candidates, but rather the overall composition of the appointees and what he considered to be a prima facie failure to reflect the two-thirds gender rule and a balance of ethnic, regional and cultural diversity,” the court stated.

The judges clarified that Section 6(9) of the Act is limited to challenges on the suitability of a candidate and does not extend to broader constitutional questions concerning the collective composition of appointments.

“The appellant’s challenge went beyond the suitability of individual nominees and touched on broader constitutional questions regarding adherence to the two-thirds gender principle and the equitable representation requirements under Articles 10, 27, 73, 75 and 232 of the Constitution, issues that squarely fall within the province of judicial determination,” the bench held.

In rejecting a blanket application of the exhaustion doctrine, the court relied on its earlier decision in reiterating that constitutional litigation should not be stifled by procedural technicalities.

“The right to access the court for redress of alleged constitutional violations should not be impeded or stifled in a manner that frustrates the enforcement of fundamental rights and freedoms,” the judges emphasized.

Despite ruling in Dr. Gikenyi’s favour on jurisdiction, the Supreme Court declined to determine the merits of the petition or remit it back to the trial court, citing ongoing proceedings before the ELRC, including Petition No. E513 of 2022 which will now proceeds to its logical conclusion

“We therefore emphatically decline the invitation to pre-empt their determination by pronouncing ourselves on the issues therein,” the court said.

The court ordered each party to bear its own costs due to the public interest nature of the case and directed that the Kshs. 6,000 security deposit paid by Dr. Gikenyi be refunded.

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In a press statement dated January 13, 2026, LSK President Faith Odhiambo warned that the legal profession would not tolerate the abuse of judicial powers.

The controversy stems from Nakuru Petition E001 of 2026, where the High Court granted ex-parte conservatory orders that could effectively cut off private practitioners from public sector work.

LSK views this as the culmination of years of attempts to restrict lawyers’ access to government contracts.

The battle began in July 2020 when the Attorney General issued a directive requiring written approval before state departments could hire external legal counsel.

LSK challenged this through judicial review, and in July 2023, Justice Jairus Ngaah ruled in their favor.

The judge emphasized that procurement must be fair, equitable, transparent, competitive and cost effective, noting these values would be undermined if such a task was left to the whim of an individual.”

Despite this victory, a fresh challenge emerged in 2024 when petitioners sought to restrain county governments from hiring private law firms.

A Senate committee’s March 2025 report acknowledged that completely prohibiting outsourcing would violate constitutional provisions and procurement laws.

Both the Office of the Attorney General Act and Office of the County Attorney Act explicitly allow retention of external counsel when necessary.

Now, several petitioners led Busia Senator okiya Omtatah have returned to court in Nakuru, citing concerns about high legal fees and fiscal responsibility.

LSK dismissed these arguments as lacking novelty, calling them symbolic of a tired rhetoric against a profession that unreservedly dedicates itself to upholding constitutional values.

The Society emphasized that private lawyers fill critical gaps in the public sector by handling conflicts of interest cases, providing independent expertise, and managing workload excesses.

Legal fees, they noted, are strictly regulated and subject to court taxation when disputes arise.

LSK argued the ex-parte orders violate Article 50 of the Constitution, which protects the right to representation of choice.

The orders also contradict the UN Basic Principles on the Role of Lawyers, which bars courts from refusing to recognize lawyers’ rights to appear for clients.

Most troublingly, the retroactive nature of the orders threatens to suspend payment of lawful dues already assessed by courts.

The Odhiambo cited other recent examples of concerning judicial conduct, including Justice Bahati Mwamuye’s reversal of orders halting police recruitment and a three-judge bench suspending the Judicial Service Commission’s constitutional functions.

“We are apprehensive that the current pattern of abuse of Judicial powers threatens to spark outrage among both the public and our members,” Odhiambo stated.

She warned that unless the trend is stopped, LSK is “prepared to agitate for a radical surgery as a means to uphold our Constitution.”

LSK announced it is documenting instances of judicial misconduct and has filed an application to review and set aside the Nakuru orders.

While committed to serving the public, the Society pledged equal commitment to protecting its members’ livelihoods and the legal practice environment.

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In a replying affidavit filed at the Milimani High Court Constitutional and Human Rights Division, EACC’s Director of Legal Services and Asset Recovery, David Too, confirmed the agency’s support for the presidentially-established Multi-Agency Team on War Against Corruption (MAT-WAC), despite its leadership by the Executive Office of the President.

“The EACC is therefore, in principle, in favour of MAT-WAC framework so long as the independence of the Commission is safeguarded,” said Too in the affidavit.

This admission comes in response to a petition filed on August 20, 2025, challenging the legality and constitutionality of the new team, whose establishment was announced via a Presidential Proclamation on August 18, 2025.

The proclamation brought together 11 institutions, including the Directorate of Criminal Investigations (DCI), National Intelligence Service (NIS), Kenya Revenue Authority (KRA), Office of the Director of Public Prosecutions (ODPP), and the EACC itself.

The inclusion of the Executive Office of the President as Chair has drawn scrutiny, with petitioners arguing it threatens the autonomy of independent commissions.

But EACC downplayed those concerns, saying: “Independence does not mean acting in isolation from other state organs,” stated Too.

“The Commission is required to collaborate with other state agencies in the exercise of its mandate since the fight against corruption requires all hands on deck.”

Too further defended EACC’s participation in MAT-WAC by citing multiple legal and policy frameworks supporting inter-agency cooperation, including Section 11(3) of the EACC Act, Article 38 of the United Nations Convention Against Corruption, and Supreme Court precedents.

“Collaboration creates synergy while leveraging on the unique strengths of each entity,” he noted.

“This prevents inefficiencies, missed opportunities, and operational failures.”

Despite reaffirming EACC’s status as a constitutionally independent commission under Article 249(2) of the Constitution, the affidavit emphasized that “integration, linkages, partnerships, teamwork” are critical tools in a modern, whole-of-government anti-corruption strategy.

However, legal experts others argue the statement that EACC is “ready to work under” a team chaired by the President’s office could set a dangerous precedent.

“This is more than just collaboration. It borders on surrendering autonomy,” said a constitional lawyer  familiar with the case, who requested anonymity.

In his affidavit, Too emphasized that the anti-graft body’s involvement in MAT-WAC is not a constitutional compromise but a strategic necessity.

“The members of MAT-WAC are institutions with crucial information that could expedite investigation and prosecution of corruption offences and recovery of assets obtained from corrupt activities,” he said.

The petitioners, led by activist Dr. Magare Gikenyi, are seeking a declaration that the presidential proclamation violates the Constitution by compromising the independence of commissions like the EACC.

They claim that the president has ursuped the mandate of constitutional offices including EACC, ODPP and the graft Taskforce is therefore illegal, and unconstitutional.

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