The Court of Appeal has declined to certify as urgent an application by the Attorney General seeking to suspend a High Court judgment declaring President William Ruto’s Cabinet unconstitutional over gender representation.
The application, dated October 6, 2026, seeks to stay the judgment delivered on June 30, which found that the composition of the Cabinet violates the two-thirds gender principle enshrined in Article 27(8) of the Constitution.
The High Court ruled that the Cabinet does not meet the constitutional requirement because more than two-thirds of its members belong to the same gender. It subsequently directed the appointing authority to reconstitute the Cabinet within 120 days to ensure compliance.
However, the Attorney General wants the judgment suspended pending the determination of an intended appeal, arguing that implementing the ruling before the appeal is heard could render the legal challenge nugatory and prejudice the government.
In its latest directions, the Court of Appeal ordered the Attorney General to serve the application on all respondents and file an affidavit confirming service.
The parties have also been directed to file and exchange their submissions, alongside any supporting documents, within 30 days.
The documents must be filed electronically, served on all parties and copied to the Registrar.
The respondents include Katiba Institute, the Centre for Rights Education and Awareness, the Institute for Social Accountability, the Kenya Human Rights Commission, activist Okiya Omtatah and other civil society actors.
They also include Saitabao Ole Kanchory, who was former Deputy President Rigathi Gachagua’s running mate.State Cites Public InterestIn its application, the Attorney General argues that the dispute raises questions of grave public interest, given the Cabinet’s central role in the running of government.
The State maintains that the Cabinet is critical to government decision-making, policy implementation, the preparation of legislation and budgets, and the oversight of government ministries.
It argues that allowing the High Court judgment to take effect before the intended appeal is determined could disrupt these functions and undermine the government’s position in the case.
The State has already lodged a Notice of Appeal challenging part of the High Court’s decision.
High Court Insisted on Gender BalanceIn its June 30 judgment, the High Court held that the two-thirds gender principle under Article 27(8) is immediate, mandatory and fully enforceable in appointive bodies, including the Cabinet established under Article 152 of the Constitution.
Article 27(8) requires the State to take legislative and other measures to implement the principle that no more than two-thirds of the members of elective or appointive bodies should be of the same gender.
The ruling placed the composition of President Ruto’s Cabinet under constitutional scrutiny, with the 120-day deadline requiring the appointing authority to address the alleged imbalance.
The Court of Appeal’s latest directions set the stage for both sides to present their arguments on whether the High Court judgment should be suspended as the legal challenge proceeds.
The substantive question of whether the Cabinet’s composition complies with the Constitution remains central to the dispute.
