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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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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