Court of Appeal denies bid to pause ruling on cabinet gender rule compliance

The Court of Appeal declined to suspend a High Court ruling that mandates the reconstitution of the Cabinet to meet Kenya's constitutional gender representation thresholds.

The decision keeps the pressure firmly on the executive branch, even as the original 120-day compliance window granted by the High Court recently lapsed. Alongside the ruling on the appeal, judges directed Attorney General Dorcas Oduor to ensure that all court papers concerning the challenge against the Cabinet’s composition and gender compliance are properly served.

At the heart of the ongoing legal battle is a judgment delivered on June 30, 2026, by a three-judge bench consisting of Justices Eric Ogola, Jairus Ngaah, and Stephen Githinji.

The bench declared the structure of the Cabinet unconstitutional after determining that male appointees occupied more than two-thirds of the positions, a direct violation of the foundational principles outlined in the Constitution.

Following that assessment, the High Court issued a strict order giving President Ruto 120 days to overhaul or adjust the Cabinet appointments to achieve gender parity.

According to the court’s detailed breakdown during the judgment, the Cabinet comprised 25 members at the time of the review, featuring 18 men and only 7 women. This meant female representation hovered at approximately 28 %falling well short of the constitutional threshold.

Article 27(8) of the Constitution mandates that the State take necessary legislative and other administrative measures to ensure no more than two-thirds of the members of any elective or appointive public body belong to the same gender.

Delivering the judgment on behalf of the bench, Justice Ogola emphasized the clear legal obligation placed on the executive:

“The appointing authority, being the President, is hereby directed to make appointments for Cabinet Secretaries in conformity with Article 27(8) within 120 days from the date of this judgement.”

To satisfy the constitutional threshold, the court calculated that at least nine out of the 25 Cabinet members must be women.

The judges explicitly defined the relevant scope of the Cabinet under Article 152(1) of the Constitution which covers the President, Deputy President, Attorney General, and Cabinet Secretaries while excluding the Secretary to the Cabinet from the mathematical computation.

Because the current structure failed to hit this standard, the bench ruled that the Cabinet’s composition breached both Articles 27 and 10 of the Constitution.

The legal petitions challenging the Cabinet went beyond raw numbers, casting a wide net over President Ruto’s decision to bring back former Cabinet Secretaries following the dissolution of the entire Cabinet in July 2024. That earlier dissolution occurred in the wake of intense nationwide protests that demanded sweeping governance and accountability reforms.

Petitioners argued in court that recycling former officials undermined the very justifications given for the 2024 shake-up, pointing to lingering public dissatisfaction over integrity and leadership standards.

However, the three-judge bench drew a firm line regarding executive discretion. The judges rejected the argument that reappointing past officials was automatically unconstitutional, clarifying that a political dismissal does not permanently bar an individual from holding public office again.

“The text does not prescribe that dismissal under that article creates a permanent or temporary disqualification from future appointments,” the judges held.

The court further noted that while bringing back former ministers in the wake of governance-related dismissals naturally invites public scrutiny, it does not cross the line into illegality. The bench additionally dismissed claims that the President was legally obligated to publish formal justifications every time a former Cabinet Secretary is reappointed.

Similarly, the bench addressed objections concerning the integration of opposition-affiliated politicians into the executive branch as part of a broad-based government framework. The judges ruled that the Constitution does not block the appointment of individuals from opposing political parties, provided that all mandatory legislative vetting and constitutional procedures are observed.

Nevertheless, the court added a crucial caveat: political inclusivity and coalition-building can never serve as a legal excuse for bypassing constitutional mandates on gender equity and public accountability.

With the Court of Appeal refusing to grant interim orders suspending the High Court’s directives, the original judgment remains actively in force.

The legal framework established by the bench leaves President Ruto navigating a delicate path between maintaining political stability through broad-based coalitions and enforcing mandatory constitutional compliance.