The Court of Appeal has declined to certify as urgent an application by the Attorney General seeking to suspend a High Court judgment that declared President William Ruto’s Cabinet unconstitutional over gender representation.
The application, filed on October 6, 2026, seeks to stay the judgment delivered on June 30, which found that the composition of the Cabinet violates the constitutional requirement that no more than two-thirds of members of appointive bodies should be of the same gender.
In its ruling, the High Court directed the appointing authority to reconstitute the Cabinet within 120 days to comply with Article 27(8) of the Constitution.
However, the Attorney General wants the orders suspended pending the determination of an intended appeal, arguing that implementing the judgment before the appeal is heard could render the proceedings nugatory and expose the government to prejudice.
The State has already lodged a Notice of Appeal challenging part of the High Court decision.
Following the latest directions, the Attorney General has been ordered to serve the application on all respondents and file an affidavit confirming that the documents have been served.
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. Saitabao Ole Kanchory, who was Rigathi Gachagua’s running mate in the 2022 presidential election, is also among those named in the proceedings.
The court has directed all parties to file and exchange their written submissions, alongside any documents supporting or opposing the application, within 30 days.
The documents are to be filed electronically and served on all parties, with copies also forwarded to the Registrar of the Court of Appeal.
At the centre of the dispute is the implementation of the two-thirds gender principle, which the High Court held to be immediate, mandatory and fully enforceable in appointive bodies, including the Cabinet established under Article 152 of the Constitution.
The principle requires the State to ensure that appointive bodies are not composed of more than two-thirds members of one gender, a constitutional safeguard intended to promote gender balance in public institutions.
In seeking a stay, the Attorney General argues that the case raises issues of grave public interest because of the Cabinet’s central role in the running of government.
The State maintains that the Cabinet is responsible for key functions, including making government decisions, implementing policies, preparing legislation and budgets, and overseeing government ministries.
The government is therefore seeking to preserve the existing position as the appeal process proceeds, arguing that changes to the Cabinet before the matter is determined could have significant implications for its operations.
The respondents are expected to present their positions on the application within the timelines set by the appellate court.
The Court of Appeal’s decision not to certify the application as urgent does not determine whether the High Court judgment should ultimately be suspended. That question remains subject to the pending application and the parties’ submissions.
The dispute now turns on whether the Attorney General can persuade the appellate court to halt implementation of the judgment while the intended appeal is considered.
