The judgment, delivered yesterday in consolidated petitions led by Katiba Institute, split the three-judge bench.

Justices Fred Ogola and Stephen Githinji carried the majority decision, while Justice Jairus Ngaah broke away in a dissent that accused the President of recycling Cabinet Secretaries he had himself branded ineffective, and of pulling ODM legislators into government through the back door.

The majority decision found that of the Cabinet’s 25 members, only seven are women against 18 men, translating to roughly 28 percent female representation against the constitutionally required minimum of one-third, or nine members.

The judges further ruled that the Secretary to the Cabinet cannot be included in the computation because Article 152(1) of the Constitution defines the Cabinet as comprising only the President, Deputy President, Attorney-General and Cabinet Secretaries.

“The current Cabinet does not comply with the two-thirds gender principle,” the judges held, directing that “the President is directed to make appointments to ensure that the Cabinet is compliant with Article 27 of the Constitution within 120 days.”

The petitions arose from President Ruto’s decision to dissolve his Cabinet in July 2024 following nationwide youth-led protests, before reappointing several former Cabinet Secretaries and bringing a number of 16 ODM politicians and party officials into government without a formal coalition agreement into what State House described as a broad-based or national unity government

On the question of whether the President acted constitutionally by reappointing Cabinet Secretaries he had dismissed only weeks earlier, the majority held that his powers under Article 152(5)(b) to appoint and dismiss Cabinet Secretaries are broad and that dismissal alone does not automatically trigger integrity concerns under Chapter Six of the Constitution.

The bench similarly upheld the National Assembly’s vetting of the Cabinet, finding public participation requirements were met, and ruled that the appointment of the Attorney-General followed proper constitutional procedure, rejecting arguments that the office should have undergone the kind of competitive process used for the Director of Public Prosecutions.

In his dissenting opinion, Justice Ngaah sharply questioned the President’s decision in returning the very Cabinet Secretaries he had branded ineffective to their old dockets.

“Why would the President renominate people that he found to be ineffective and dismissed them to the same positions?” Justice Ngaah posed, arguing that under Article 259(10) of the Constitution, a dismissed State officer can only be reappointed if still qualified for office.

He said the President’s own reasons for dismissing the Cabinet undermined any justification for their reappointment.

Justice Ngaah was equally unsparing on the ODM leaders appointment in government, tracing Kenya’s history of multiparty struggle before concluding that absorbing opposition legislators into Cabinet outside a formal coalition violated the law.

“Opposition MPs can only be co-opted into government through the framework of Sections 10 and 11 of the Political Parties Act,” he ruled, adding that “the only means that a ruling party can partner with the opposition is through the framework of a coalition.”

In some of the strongest remarks in the judgment, Justice Ngaah accused the President of failing to uphold the Constitution.

“When the President frustrates the Constitution, it is the duty of the Court to rise up and safeguard the Constitution!” he declared, citing Article 131(2)(a), which requires the Head of State to respect, uphold and safeguard the Constitution.

The petitions had targeted Ruto’s broad-based government push following the July 2024 youth-led protests that forced him to dissolve his entire Cabinet, and the subsequent inclusion of ODM figures in what State House branded a “national unity” arrangement.

While the majority ruling spares Ruto on the politically sensitive reappointment and opposition-absorption questions, the binding order compelling a Cabinet reshuffle within 120 days still hands the President a fresh headache, forcing him back to the negotiating table over portfolios just as his broad-based government arrangement appeared to be stabilizing.

The Attorney-General’s appointment, the only issue on which all three judges agreed, was unanimously upheld as constitutional.

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Magwanga says the governor’s actions go beyond politics and have crossed into illegality. 

The deputy governor argued that his constitutional rights as a holder of public office have been violated.

“My office is still closed, and my staff have no access to it. What kind of management is this? You cannot close a public office to deny the holder access. This is a violation of the Constitution,” Magwanga says

“The move is a calculated political power play aimed at undermining my office and obstructing the functions of county governance.”

The dispute erupted after Governor Wanga removed Magwanga from his additional role as County Executive Committee Member for Agriculture, part of a wider cabinet reshuffle that deepened their political rift following the recent Kasipul by‑election.

Magwanga has publicly signalled his intention to contest the governor’s seat in the 2027 general elections, intensifying tensions within the county leadership.

 He accused the county administration of sidelining him and sabotaging his duties.

“You cannot close a public office to deny the holder access. This is a violation of the Constitution… It is only a matter of time before the people of Homa Bay lock you out through the ballot. Your time is up, and you are going home,” he said.

Political allies of the governor have challenged Magwanga’s conduct, with County Finance CECM Solomon Obiero saying critics should resign if they plan to run against the governor.

The matter is now before the Employment and Labour Relations Court in Kisumu, where Magwanga is seeking orders compelling the county government to restore his office access and official vehicles.

Governor Wanga’s office has not yet filed a response to the lawsuit and the matter is pending hearing 

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