Introduction
1. On 21 September 2020, the Chief Justice and the President of the Supreme Court of Kenya wrote to the President of the Republic Kenya, advising him to dissolve Parliament because Parliament had failed to enact legislation on promotion of representation of marginalised groups identified in Article 100 of the Constitution as comprising women; persons with disabilities; youth; ethnic and other minorities; and marginalised communities.
2. According to the 5th Schedule to the Constitution, this legislation ought to have been enacted within five years of the date of promulgation of the Constitution of Kenya, 2010. Under Article 261 (6) and (7) of the Constitution, if Parliament fails to enact any particular legislation within the prescribed timeline, any person may petition this Honourable Court for its intervention on the matter; the court may then direct Parliament and the Attorney General to take such steps as necessary to ensure that the legislation in issue is enacted within the time prescribed by the court. Where Parliament does not comply with the court’s direction and enact the legislation, Article 261 (7) enjoins the Chief Justice to advise the President to dissolve Parliament.
3. It is against this background that the Chief Justice’s advice of 21 September 2020 was made. We shall henceforth also refer to the advice as the “Advisory.”
4. The Advisory triggered not less than ten suits in the nature constitutional petitions and a judicial review application filed in this Honourable Court immediately after the Advisory was sent to the President or soon thereafter. Of these suits, eight have sought, in the main, the impeachment of the Advisory while the other two seek orders in support of the Advisory, prodding the President to comply with the Advisory and dissolve Parliament. These suits have been consolidated in this petition.
5. Those petitions against the Advisory seek, more or less, similar prayers which we summarise as hereunder:
(a)A Declaration that the 1ˢᵗ Respondent's function and role under Article 261 (6)(b) of the Constitution of Kenya 2010 is administrative in nature pursuant to his authority as Head of the Judiciary.
(b) A Declaration that the Chief Justice's function and role under Article 261 (7) of the Constitution of Kenya 2010 is administrative in nature pursuant to his authority as Head of the Judiciary.
(c)A Declaration that the 1ˢᵗ Respondent's Advice engrossed in his communication dated 21 September 2020 is ultra vires Article 163 (2) and (3)of the Constitution of Kenya 2010 and section 5 of the Fair Administrative Action Act
(d) A Declaration that Article 261 (7) is impracticable to the extent of requiring dissolution of Parliament without procedural and substantive implementing provisions within the Constitution and without, No. 4 of 2015.
(e) A Declaration that Article 261 (7) is impracticable on account of its disharmony with the Article s 38 97(2), 98(3), 99, 101(1), 102(1), 103,104 and 105 of the Constitution of Kenya 2010 and threatens to override and or supplant the same.
(f) A declaration that the Chief Justice advice to the President pursuant to Article 261 (7) of the Constitution issued on 21st September 2020 violates or countermands Article s l,2,3,10,38,101,102,258,259 of the Constitution.
(g) An Order for Judicial Review calling up and quashing the 1ˢᵗ Respondent's administrative action and communication issued pursuant to Article 261 (7) of the Constitution of Kenya 2010 and engrossed in his Advice to the President of
(h) A declaration that the Chief Justice advice to the President pursuant to Article 261 (7) of the Constitution issued on 21September 2020 constitutes an unconstitutional informal constitutional amendment.
(i) A declaration that the Chief Justice advice to the President pursuant to Article 261 (7) of the Constitution issued on 21st September 2020 undermines the principles of rule of law democracy and separation of powers and checks and balances.
(j) An order to be issued by the Honourable Court quashing the Chief Justice advice to the President Article 261 (7) of the Constitution issued on 21st September 2020.
(k) A declaration that the principles set out in Article 27(8), 81 (b) and 100 cannot be achieved through legislation without necessarily amending the constitution to remove the ceiling set out under Article 97 and 98 of the Constitution.
(l) A declaration that the principles set out in Article 27(8), 81 (b) and 100 can only be attained by way of an amendment to Article s 97 and 98 of the Constitution as envisaged under Article 255 (1) (c) of the Constitution.
(m) A declaration be issued that the Advisory opm1on by Chief Justice dated 21September 2020 abrogates the political rights enshrined under Article 38(2) (a) of the Constitution of Kenya 2010.
(n) An order of prohibition prohibiting the President from enforcing the advice by the Chief Justice issued by the Advisory letter dated 21st September 2020.
(o) A declaration be issued that the 1st respondent's advice in the Advisory letter dated 21 September 2020 constitutes an infringement of Article 1 of the sovereign power of the people exercised through the legislative arm of the government.
(p) A declaration be issued that the 1st respondent lacks jurisdiction under Article 261 (5), (6) and (7) of the Constitution to interfere with the law making powers of parliament, particularly freedom of speech and debate under Article 117 of the Constitution.
(q) A declaration do issue that parliamentary lifespan in Kenya under Article 101 and 102 is for a term of 5 years, and the term of twelfth complies with Article 81 (b) within 90 days of either the President's dissolution of parliament or the expiration of the reasonable time for dissolution established by the court.
(r)An order directing the newly elected parliament to pass legislation on two thirds gender principle required under the constitution, particularly Article s 27 (8) and l00(a), within 60 days of its sitting of its first business, failure to which
(s) A declaration be issued that the dissolution of Parliament pursuant to the 1st Respondent's advice titled 'CHIEF JUSTICE'S ADVICE TO THE PRESIDENT PURSUANT TO ARTICLE 261(7) OF THE CONSTITUTION' and dated 21st September 2020, advising the President of the Republic of Kenya to dissolve Parliament, violates the political rights of the Petitioner and other Members of Parliament under Article 38(3)(c) of the Constitution of Kenya, 2010.
(t) A declaration be issued that the dissolution of Parliament pursuant to the 1st Respondent's advice Kenya to dissolve Parliament, violates Article s 1(2), 101(1), 102(1) and 103(1)(f) of the Constitution of Kenya, 2010 and undermines the legitimate expectation of the Petitioner and other Members of Parliament to serve their full terms in office until the date of the next general election on 9th August 2022.
(u)A declaration be issued that the dissolution of Parliament pursuant to the Chief Justice's advice Kenya to dissolve Parliament, violates the principles of Kenya's electoral system which is founded on the principles of free and fair elections and respect for the free expression of the will of the electorate and the political choices of the electorate under Article s 38(1), 38(2)(a), 38(3)(b), 81(a) and 81(e) of the Constitution of Kenya, 2010.
(v)A declaration be issued that the dissolution of Parliament pursuant to the 1st Respondent's violates the process of initiation of elections for Member of Parliament, that is, parliamentary elections, under sections 3 and 16 of the Elections Act No. 24 of 2011.
(w) violates the national values and principles of governance under Article 10 of the Constitution of Kenya, 2010, especially on democracy and participation of the people under Article 10(2)(a)of the Constitution of Kenya, 2010.
(x) A declaration be issued that there was no compliance with the step-to-step procedure embodied in the provisions of Article 261 of the Constitution of Kenya, 2010 in arriving at the Chief Justice's advice.
(y)A declaration be issued that the Chief Justice is equally bound by Article s 47(1) and (2), 50(1), 159(1) and (2) and 259(1) of the Constitution of Kenya, 2010 and Sections 3-5 of the Fair Administrative Action Act, No. 4 of 2015 (FAAA, 2015), which pertain to the right to fair administrative action, in construing and in acting upon his constitutional mandate under Article 261 of the Constitution of Kenya, 2010, and in so far as his actions therein adversely affect the political rights of the Petitioner and other MPs under Article 38 of the Constitution of Kenya, 2010.
(z) A declaration be issued that the 151 Respondent violated the right to fair administrative action and the right to fair hearing of the Petitioner and other MPs under Article s 47(1) and (2), and 50(1) of the Constitution of Kenya, 2010 and Sections 3-5 of the Fair Administrative Action Act, No.4 of 2015.
(aa) An order of Prohibition (or alternatively by injunction or otherwise) be issued to prohibit the 1st and 2nd Respondents or any other person purporting to act pursuant to the Chief Justice's advice.
(bb)A declaration be issued that Parliament and Members of Parliament are under no obligation to comply with the two-thirds gender principle embodied under Article 27(8) and 81(b) of the Constitution of Kenya, 2010 as concerns the Membership of Parliament under Article s 97 and 98 of the Constitution of Kenya, 2010 and that such obligation falls on other State actors and the electorate.
(cc)A declaration that any legislation ·to imple1nent the two-thirds gender principle must abide by and cannot bypass the constitutional provisions on the legislative process as provided under Article s 109-116 and 122-123 of the Constitution of Kenya, 2010 and Article s 255-257 of the Constitution of Kenya, 2010 as concerns amendments to the constih1tion, including the procedures in the Standing Orders of the National Assembly and the Standing Orders of the Senate as applicable.
(dd) An declaration be issued that the orders of Mwita J. in High Court Constitutional Petition No. 19 of 2019, Katiba Institute v Independent Electoral & Boundaries Commission [2017] eKLR, through a judgment delivered on 27th April 2017, do not apply in respect of the twelfth Parliament.
(ee) A declaration that the Advice issued by the Respondent grossly offends the Constitution, is contrary to the Oath of Office he took as the Chief Justice of the Republic of Kenya and as such, the Respondent is unfit to hold any public office within the Republic of Kenya.
(ff) A declaration that the conduct of the Respondent concerning the letter dated 2151 September 2020 is a violation of Article s 232 of the Constitution, and he is thus unfit to hold public office.
(gg)An order His Excellency the President from dissolving Parliament on the basis of the Advisory of the Respondent dated 21 September 2020.
(hh) A declaration the conduct of the Respondent concerning the letter dated 21st September 2020 is a violation of Article s 232 of the Constitution, and he is thus unfit to hold public office.
(ii)A declaration that the principles set out in Article s 27(8), 81(b) and 100 cannot be achieved through legislation, without necessarily amending the constitution to remove the ceiling set out under Article 97 and 98 of the Constitution.
(jj) A declaration that the principle set out in Article 27 (8), 81(b) and 100 can only be attained by way of an amendment to Article s 97 and 98 of the Constitution as envisaged under Article 255(1) (c) of the Constitution.
(kk) A declaration be issued that the Advisory Opinion by the Chief Justice dated 21st September 2020 abrogates the Political rights enshrined under Article 38 (2) (a) of the Constitution of Kenya 2010.
(ll) A declaration be issued that the Chief Justice's advice in the Advisory Letter dated 21st September 2020 constitutes an infringement of Article 1 on the Sovereign power of the people exercised through the legislative arm of the government.
(mm) A declaration be issued that the Chief Justice lacks jurisdiction under Article 261 (5), (6) and (7) of the Constitution to interfere with the law-making powers of parliament, particularly the freedom of speech and debate under Article 117 (1) of the constitution.
(nn)A declaration do issue that a Parliamentary lifespan in Kenya under Article s 101 and 102 is for a term of 5 years, and the term of 12th Parliament commenced in August 2017 and expires on August 2022.
(oo) A declaration do issue that the Orders and findings of Justice Mativo in Constitutional Petition No. 371 of 2016, Centre for Rights and Awareness & 2 Others vs Speaker of National Assembly & 6 Others, only binds the 11th Parliament.
(pp) A declaration do issue that the President should disregard in toto of the Advisory opinion issued by the Chief Justice to dissolve Parliament dated 21st September 2020 for contravening Article 131(2) as read together with Article 261(7) of the constitution.
(qq) A declaration that the respondent acted in contravention of the Constitution by disregarding the public interest in advising the President to dissolve Parliament.
(rr) A declaration that the advice of the respondent is legally and constitutionally incapable of execution given the absence of a transitional and facilitative legal and constitutional framework.
(ss) A declaration that the president’s role under Article 261(7) of the Constitution is discretionary.
(tt) A declaration that the respondent’s advice to the president is in violation of Article 261 of the Constitution.
(uu) A declaration that the order issued by the High Court on 29 March 2017 in Constitutional Petition No. 371 of 2016, Centre for Rights Education and Awareness & 2 Others versus Speaker, the National Assembly & 6 Others (2017) during the term of the eleventh (11th ) Parliament is not applicable to the twelfth parliament.
(vv) A declaration that the president is required to afford parliament fair administrative action before taking any steps under Article 261(7) of the Constitution.
6. Like the petitions against the Advisory, the suits supporting it share common prayers. A summary of these prayers are as follows:
(a) A declaration that Parliament as currently constituted is unconstitutional and has been since its establishment following the general elections on 8ᵗʰ August 2017.
(b) A declaration that because of its unconstitutionality and illegality, the 12ᵗʰ Parliament has no legal authority to exercise powers provided for in the Constitution and may not seek protection of this Court under Article s 22, 165(3) or 258 of the Constitution.
(c)A declaration that the obligation to pass any laws required under the Constitution applies to Parliament as an institution.
(d) A declaration that the President, upon receipt of the advice by the Chief Justice under Article 261(7), must dissolve Parliament within a reasonable time.
(e) A declaration that reasonable time for the dissolution of Parliament should be defined as a period not exceeding 21 days.
(f) An Order that if the President does not dissolve Parliament within the reasonable time established by this court, Parliament will be dissolved at the expiration of that period.
(g) An Order directing the Independent Electoral and Boundaries Commission to conduct an election of a new Parliament that complies with Article 81(6) within 90 days of either the President's dissolution of Parliament or the expiration of the reasonable time for dissolution established by the Court.
(h) An Order directing the newly-elected Parliament to pass legislation on the two-thirds gender principle required under the Constitution, particularly Article s 27(8) and 100(a), within 60 days of its sitting for its first business, failure to which Article 261(7) shall apply afresh.
(i) A declaration be and is hereby issued that the Chief Justice's Advisory opinion dated 21st September 2020 is not a mere recommendation to the president (with an option of being disregarded) but a constitutional command compelling the President in his capacity as head of state and government to dissolve parliament.
(j) A declaration be and is hereby issued that in light of the glaring loophole under Article 261 (7) which does not stipulate the timeframe within which the President is bound to dissolve Parliament, the circumstances justify the concept of a reasonable time which in the circumstances is a maximum of 21days from the date of issuance of the Chief Justice's Advisory.
(k)A declaration be and is hereby issued that Parliament automatically stands dissolved upon lapse of the "reasonable timeframe", notwithstanding the Presidents non-compliance with Article 261(7) of the constitution such that any business conducted by the said Parliament after the expiry of the reasonable time becomes illegal, unenforceable, null and void ab initio.
(l) A declaration be and is hereby issued that he President's compliance with the Chief Justice's Advisory will not cause an overthrow to the established constitutional order in terms of stability and efficacy. Put differently, the Chief Justice's Advisory opinion does not amount to an open invitation to President Uhuru to subvert the Constitution through abrogation of a Parliament that has been duly elected by the people by dint of Article 1(2) where sovereign power is exercised indirectly through the elected representatives.
(m) A declaration be and is hereby issued that the dissolution of Parliament will trigger by-elections as opposed to a general election.
(n) A declaration be and is hereby issued that Parliament is bound by the Principle of Perpetual Succession such that the 12th Parliament is liable and answerable for the acts and omissions of the 11th Parliament in as far as compliance with Article 261 is concerned.
(o)A declaration be and is hereby issued that the dissolution of Parliament in the circumstances does NOT envisage the dissolution of both houses i.e The National Assembly and the Senate but just the National Assembly Senate, hence Senate be and is hereby deemed a properly constituted Parliament under Article 93 so that it is mandated to discharge all the duties and functions of Parliament pending the coming into place of a new National Assembly.
(p) A declaration that in the Absence of representatives to exercise the delegated power, the people should be able to exercise the sovereign power directly.
7. When the petitions were consolidated on 18 February 2021, the order in which the main parties in the respective petitions would subsequently appear in the consolidated petition was not set out. To cater for this omission, we have listed these parties in the ascending order, with parties in the suits filed first in time being ranked first. However, for convenience and ease of reference, we may refer to parties by their identities in which they sued or have been sued.
8. One other thing we need to mention at this early stage is that this is the second bench to have been empanelled to determine this petition. The first bench heard and reserved the petition for judgment on 5 May 2021. The judgment was, however, not rendered because the National Assembly and the Senate appealed to the Court of Appeal in Civil Appeal No. E097 of 2021; National Assembly & Anor versus Chief Justice of the Republic of Kenya & Anor; Deputy Chief Justice & 12 Others (interested parties) [2021]KECA 539 (KLR) from where they obtained an order staying the proceedings in this Honourable Court on 28 May 2021. In their appeal, the appellants questioned the legal basis of the Deputy Chief Justice empanelling a bench of unequal number of judges under Article 165(4) of the Constitution.
9. On 9 May 2025 the Court of Appeal rendered its decision in Gachagua & 5 Others versus Maingi & 80 Others (2025) KECA (KLR) where a similar question arose. The appellants and the respondents in National Assembly & Anor versus Chief Justice of the Republic of Kenya & Anor; Deputy Chief Justice & 12 Others (interested parties) had informed the court that they would be bound by the decision in Gachagua & 5 Others versus Maingi & 80 Others and thus, the decision in this latter case effectively determined their appeal. The stay orders lapsed with this determination and, therefore, it is only on 11 July 2025 when the Court directed that the hearing of the petition would proceed on 29 September 2025. Even then the matter did not proceed until 6 March 2026.
10. By the time the Court of Appeal rendered its decision in Gachagua & 5 Others versus Maingi & 80 others, some members of the initial bench previously constituted to hear this petition had been elevated to the Court of Appeal while one other member of the bench retired. Of the five members who constituted the previous bench, only one still sits in the High Court.
11. That said, we note that in each of the petitions either for or against the Advisory, affidavits have been filed by the petitioners or their representatives in support of their petitions. Nonetheless, as will become apparent in due course, the facts culminating in the impugned Advisory and upon which all these suits are based, are not so much in dispute. Material to the petition are the facts that this Honourable Court made declarations declaring, inter alia, that the National Assembly and the Senate had failed in their joint and separate constitutional obligations to enact legislation necessary to give effect to the principle that not more than two thirds of the members of the National Assembly and the Senate shall be of the same gender and that failure by Parliament to enact the legislation contemplated under Article 27 (6) & (8) and 81 (b) of the Constitution amounted to a violation of the rights of women to equality and freedom from discrimination. The court also issued an order of mandamus compelling Parliament and the Honourable Attorney General to take steps to ensure that the required legislation was enacted within a period of sixty (60) days from the date of the order and to report the progress to the Chief Justice and, in default, the petitioners or any other person would be at liberty to petition the Chief Justice to advise the President to dissolve Parliament.
12. It is also not in dispute that no legislation was enacted in accordance with the court’s declarations or at all. Further, it is not in dispute that in the wake of the Honourable Court’s declarations, several petitions were made to the Chief Justice to advise the President to dissolve Parliament. Finally, it is not in dispute that, the Chief Justice eventually advised the President to dissolve Parliament.
13. At the background of what, in our humble view, are common grounds amongst the parties to this petition, is the impugned Advisory of 21 September 2020. We have been asked to determine the constitutionality or otherwise of the Chief Justice’s impugned Advisory and, in particular whether, in advising the President as he did, the Chief Justice was wary of the strict compliance with the provisions of Article 261 of the Constitution before advising the President to dissolve Parliament for the reason of its failure to enact any particular legislation within the such timelines as stipulated or prescribed by the Constitution. Tied to the Chief Justice’s Advisory is, of course, the order that set in motion the Chief Justice’s action.
14. When we consider the petition from this perspective, all we are left with to determine are, by and large, questions of law and not facts. But first, it is necessary that we state the parties’ cases as set out in their respective pleadings.
15. Perhaps, because they are the primary targets of the impugned Advisory, the Speakers of two Houses of Parliament appeal to us to be relatively more comprehensive in their pleadings. Not that the rest of the petitions do not bear as much weight or are less important; more importantly, going by the consolidation order made by this Honourable Court on 18 February 2021, the petition before us is a consolidated petition and our reference to any particular petition is not out of any preference of one petition to another but for convenience purposes only.
16. The Speakers of the two Houses have pleaded that the Respondents, including the Chief Justice, are all state officers as defined by Article 260 of the Constitution and by dint of Article 2(1) and (2) of the Constitution, they are enjoined to ensure that their actions are not only fair but also judicious, grounded in the law and not capricious or whimsical.
17. The Chief Justice’s role under Article 261(7) of the Constitution is said to be dual in nature; he has the administrative function of transmitting the Advisory to the President and a judicial function of determining whether the conditions precedent for the exercise of his discretion under Article 261 (7) of the Constitution have been met.
18. In exercising these functions, the Chief Justice is enjoined to respect the supremacy of the Constitution and, in particular, accord parties affected by his advice a right to be heard, as they are entitled to under Article 47 of the Constitution. The Chief Justice is also bound to consider the gravity of his Advisory to the President.
19. The two Speakers have invoked Article 19 of the Constitution which provides that the Bill of Rights is an integral part of Kenya's democratic state and is the framework for social, economic and cultural policies. Article 19(2) categorically states that the purpose of recognizing and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realization of the potential of all human beings.
20. They have also invoked Article 21 (1) of the Constitution which provides that it is the fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfil the rights and freedoms in the Bill of Rights. And according to Article 22(1) 'every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened'. Again, Article 258(1) of the Constitution provides that "every person has the right to institute court proceedings claiming that this Constitution has been contravened, or is threatened with contravention."
21. As far as the jurisdiction of this Honourable Court is concerned, it has been pleaded that the court is established under Article 165(1) of the Constitution and derives its jurisdiction from Article 165 (3) (d) (i) and (ii) which empowers it to hear any question respecting the interpretation of this Constitution including the determination of:
(i) the question whether any law is inconsistent with or in contravention of this Constitution;
(ii) the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;
(iii) any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government.
22. It is also contended that the court has supervisory jurisdiction under Article 165(6) of the Constitution that empowers it to supervise the various organs and institutions created by the Constitution including the office of the Chief Justice. The advice given by the Chief Justice to the President attracts the supervisory jurisdiction of this Honourable Court under Article 165(6).
23. Even though he was not sitting as a judge of the Supreme Court when exercising his functions under Article 261 (7) of the Constitution, the Chief Justice was nonetheless exercising a judicial function, to wit, the interpretation and application of a number of constitutional provisions. To that end, it is pleaded that the Chief Justice’s decision is subject to the Supervisory Jurisdiction of this Honourable Court under Article 165 (6) of the Constitution. The petitioners plead that the "Chameleon doctrine" brings the function of the Chief Justice within the scope of judicial function.
24. The petitioners have contended that in advising the President to dissolve parliament pursuant to Article 261 (7) of the Constitution, the Chief Justice failed to satisfy himself that an order was made by the High Court under Article 261 (6) (b) thereof. The Chief Justice, it is alleged, did not appreciate and, in fact, he was oblivious to the elaborate process of legislation in Parliament, by deliberately ignoring the evidence with which he was presented demonstrating that Parliament had indeed commenced the legislative process of complying with the court decision in Centre for Rights Education and Awareness & 2 others v Speaker the National Assembly & 6 others [2017] KEHC 8601 (KLR). Further, at the time the Chief Justice advised the President, the parliamentary process targeting the amendment of the Constitution and, subsequently, the enactment of the legislation on representation had gone through various stages of legislation.
25. In any event, the order in the Centre for Rights Education and Awareness & 2 others v Speaker the National Assembly & 6 Others case (supra) was directed at the 11th Parliament and not the 12th Parliament. It is pleaded that the term of the 11th Parliament expired on 8th August 2017. It is contended that Parliament is not a perpetual organ that survives successive elections; rather, it is a sitting of elected members brought to order upon swearing in to the respective Houses of Parliament. The new members are then gazetted and admitted into their respective Houses of Parliament to exercise the sovereign power of the people on a new slate.
26. According to the two Speakers, it is the membership that creates a Parliament such that the mandate of each House lapses with the conclusion of its constitutional term under Article 102 (1) of the Con
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1. On 21 September 2020, the Chief Justice and the President of the Supreme Court of Kenya wrote to the President of the Republic Kenya, advising him to dissolve Parliament because Parliament had failed to enact legislation on promotion of representation of marginalised groups identified in Article 100 of the Constitution as comprising women; persons with disabilities; youth; ethnic and other minorities; and marginalised communities.
2. According to the 5th Schedule to the Constitution, this legislation ought to have been enacted within five years of the date of promulgation of the Constitution of Kenya, 2010. Under Article 261 (6) and (7) of the Constitution, if Parliament fails to enact any particular legislation within the prescribed timeline, any person may petition this Honourable Court for its intervention on the matter; the court may then direct Parliament and the Attorney General to take such steps as necessary to ensure that the legislation in issue is enacted within the time prescribed by the court. Where Parliament does not comply with the court’s direction and enact the legislation, Article 261 (7) enjoins the Chief Justice to advise the President to dissolve Parliament.
3. It is against this background that the Chief Justice’s advice of 21 September 2020 was made. We shall henceforth also refer to the advice as the “Advisory.”
4. The Advisory triggered not less than ten suits in the nature constitutional petitions and a judicial review application filed in this Honourable Court immediately after the Advisory was sent to the President or soon thereafter. Of these suits, eight have sought, in the main, the impeachment of the Advisory while the other two seek orders in support of the Advisory, prodding the President to comply with the Advisory and dissolve Parliament. These suits have been consolidated in this petition.
5. Those petitions against the Advisory seek, more or less, similar prayers which we summarise as hereunder:
(a)A Declaration that the 1ˢᵗ Respondent's function and role under Article 261 (6)(b) of the Constitution of Kenya 2010 is administrative in nature pursuant to his authority as Head of the Judiciary.
(b) A Declaration that the Chief Justice's function and role under Article 261 (7) of the Constitution of Kenya 2010 is administrative in nature pursuant to his authority as Head of the Judiciary.
(c)A Declaration that the 1ˢᵗ Respondent's Advice engrossed in his communication dated 21 September 2020 is ultra vires Article 163 (2) and (3)of the Constitution of Kenya 2010 and section 5 of the Fair Administrative Action Act
(d) A Declaration that Article 261 (7) is impracticable to the extent of requiring dissolution of Parliament without procedural and substantive implementing provisions within the Constitution and without, No. 4 of 2015.
(e) A Declaration that Article 261 (7) is impracticable on account of its disharmony with the Article s 38 97(2), 98(3), 99, 101(1), 102(1), 103,104 and 105 of the Constitution of Kenya 2010 and threatens to override and or supplant the same.
(f) A declaration that the Chief Justice advice to the President pursuant to Article 261 (7) of the Constitution issued on 21st September 2020 violates or countermands Article s l,2,3,10,38,101,102,258,259 of the Constitution.
(g) An Order for Judicial Review calling up and quashing the 1ˢᵗ Respondent's administrative action and communication issued pursuant to Article 261 (7) of the Constitution of Kenya 2010 and engrossed in his Advice to the President of
(h) A declaration that the Chief Justice advice to the President pursuant to Article 261 (7) of the Constitution issued on 21September 2020 constitutes an unconstitutional informal constitutional amendment.
(i) A declaration that the Chief Justice advice to the President pursuant to Article 261 (7) of the Constitution issued on 21st September 2020 undermines the principles of rule of law democracy and separation of powers and checks and balances.
(j) An order to be issued by the Honourable Court quashing the Chief Justice advice to the President Article 261 (7) of the Constitution issued on 21st September 2020.
(k) A declaration that the principles set out in Article 27(8), 81 (b) and 100 cannot be achieved through legislation without necessarily amending the constitution to remove the ceiling set out under Article 97 and 98 of the Constitution.
(l) A declaration that the principles set out in Article 27(8), 81 (b) and 100 can only be attained by way of an amendment to Article s 97 and 98 of the Constitution as envisaged under Article 255 (1) (c) of the Constitution.
(m) A declaration be issued that the Advisory opm1on by Chief Justice dated 21September 2020 abrogates the political rights enshrined under Article 38(2) (a) of the Constitution of Kenya 2010.
(n) An order of prohibition prohibiting the President from enforcing the advice by the Chief Justice issued by the Advisory letter dated 21st September 2020.
(o) A declaration be issued that the 1st respondent's advice in the Advisory letter dated 21 September 2020 constitutes an infringement of Article 1 of the sovereign power of the people exercised through the legislative arm of the government.
(p) A declaration be issued that the 1st respondent lacks jurisdiction under Article 261 (5), (6) and (7) of the Constitution to interfere with the law making powers of parliament, particularly freedom of speech and debate under Article 117 of the Constitution.
(q) A declaration do issue that parliamentary lifespan in Kenya under Article 101 and 102 is for a term of 5 years, and the term of twelfth complies with Article 81 (b) within 90 days of either the President's dissolution of parliament or the expiration of the reasonable time for dissolution established by the court.
(r)An order directing the newly elected parliament to pass legislation on two thirds gender principle required under the constitution, particularly Article s 27 (8) and l00(a), within 60 days of its sitting of its first business, failure to which
(s) A declaration be issued that the dissolution of Parliament pursuant to the 1st Respondent's advice titled 'CHIEF JUSTICE'S ADVICE TO THE PRESIDENT PURSUANT TO ARTICLE 261(7) OF THE CONSTITUTION' and dated 21st September 2020, advising the President of the Republic of Kenya to dissolve Parliament, violates the political rights of the Petitioner and other Members of Parliament under Article 38(3)(c) of the Constitution of Kenya, 2010.
(t) A declaration be issued that the dissolution of Parliament pursuant to the 1st Respondent's advice Kenya to dissolve Parliament, violates Article s 1(2), 101(1), 102(1) and 103(1)(f) of the Constitution of Kenya, 2010 and undermines the legitimate expectation of the Petitioner and other Members of Parliament to serve their full terms in office until the date of the next general election on 9th August 2022.
(u)A declaration be issued that the dissolution of Parliament pursuant to the Chief Justice's advice Kenya to dissolve Parliament, violates the principles of Kenya's electoral system which is founded on the principles of free and fair elections and respect for the free expression of the will of the electorate and the political choices of the electorate under Article s 38(1), 38(2)(a), 38(3)(b), 81(a) and 81(e) of the Constitution of Kenya, 2010.
(v)A declaration be issued that the dissolution of Parliament pursuant to the 1st Respondent's violates the process of initiation of elections for Member of Parliament, that is, parliamentary elections, under sections 3 and 16 of the Elections Act No. 24 of 2011.
(w) violates the national values and principles of governance under Article 10 of the Constitution of Kenya, 2010, especially on democracy and participation of the people under Article 10(2)(a)of the Constitution of Kenya, 2010.
(x) A declaration be issued that there was no compliance with the step-to-step procedure embodied in the provisions of Article 261 of the Constitution of Kenya, 2010 in arriving at the Chief Justice's advice.
(y)A declaration be issued that the Chief Justice is equally bound by Article s 47(1) and (2), 50(1), 159(1) and (2) and 259(1) of the Constitution of Kenya, 2010 and Sections 3-5 of the Fair Administrative Action Act, No. 4 of 2015 (FAAA, 2015), which pertain to the right to fair administrative action, in construing and in acting upon his constitutional mandate under Article 261 of the Constitution of Kenya, 2010, and in so far as his actions therein adversely affect the political rights of the Petitioner and other MPs under Article 38 of the Constitution of Kenya, 2010.
(z) A declaration be issued that the 151 Respondent violated the right to fair administrative action and the right to fair hearing of the Petitioner and other MPs under Article s 47(1) and (2), and 50(1) of the Constitution of Kenya, 2010 and Sections 3-5 of the Fair Administrative Action Act, No.4 of 2015.
(aa) An order of Prohibition (or alternatively by injunction or otherwise) be issued to prohibit the 1st and 2nd Respondents or any other person purporting to act pursuant to the Chief Justice's advice.
(bb)A declaration be issued that Parliament and Members of Parliament are under no obligation to comply with the two-thirds gender principle embodied under Article 27(8) and 81(b) of the Constitution of Kenya, 2010 as concerns the Membership of Parliament under Article s 97 and 98 of the Constitution of Kenya, 2010 and that such obligation falls on other State actors and the electorate.
(cc)A declaration that any legislation ·to imple1nent the two-thirds gender principle must abide by and cannot bypass the constitutional provisions on the legislative process as provided under Article s 109-116 and 122-123 of the Constitution of Kenya, 2010 and Article s 255-257 of the Constitution of Kenya, 2010 as concerns amendments to the constih1tion, including the procedures in the Standing Orders of the National Assembly and the Standing Orders of the Senate as applicable.
(dd) An declaration be issued that the orders of Mwita J. in High Court Constitutional Petition No. 19 of 2019, Katiba Institute v Independent Electoral & Boundaries Commission [2017] eKLR, through a judgment delivered on 27th April 2017, do not apply in respect of the twelfth Parliament.
(ee) A declaration that the Advice issued by the Respondent grossly offends the Constitution, is contrary to the Oath of Office he took as the Chief Justice of the Republic of Kenya and as such, the Respondent is unfit to hold any public office within the Republic of Kenya.
(ff) A declaration that the conduct of the Respondent concerning the letter dated 2151 September 2020 is a violation of Article s 232 of the Constitution, and he is thus unfit to hold public office.
(gg)An order His Excellency the President from dissolving Parliament on the basis of the Advisory of the Respondent dated 21 September 2020.
(hh) A declaration the conduct of the Respondent concerning the letter dated 21st September 2020 is a violation of Article s 232 of the Constitution, and he is thus unfit to hold public office.
(ii)A declaration that the principles set out in Article s 27(8), 81(b) and 100 cannot be achieved through legislation, without necessarily amending the constitution to remove the ceiling set out under Article 97 and 98 of the Constitution.
(jj) A declaration that the principle set out in Article 27 (8), 81(b) and 100 can only be attained by way of an amendment to Article s 97 and 98 of the Constitution as envisaged under Article 255(1) (c) of the Constitution.
(kk) A declaration be issued that the Advisory Opinion by the Chief Justice dated 21st September 2020 abrogates the Political rights enshrined under Article 38 (2) (a) of the Constitution of Kenya 2010.
(ll) A declaration be issued that the Chief Justice's advice in the Advisory Letter dated 21st September 2020 constitutes an infringement of Article 1 on the Sovereign power of the people exercised through the legislative arm of the government.
(mm) A declaration be issued that the Chief Justice lacks jurisdiction under Article 261 (5), (6) and (7) of the Constitution to interfere with the law-making powers of parliament, particularly the freedom of speech and debate under Article 117 (1) of the constitution.
(nn)A declaration do issue that a Parliamentary lifespan in Kenya under Article s 101 and 102 is for a term of 5 years, and the term of 12th Parliament commenced in August 2017 and expires on August 2022.
(oo) A declaration do issue that the Orders and findings of Justice Mativo in Constitutional Petition No. 371 of 2016, Centre for Rights and Awareness & 2 Others vs Speaker of National Assembly & 6 Others, only binds the 11th Parliament.
(pp) A declaration do issue that the President should disregard in toto of the Advisory opinion issued by the Chief Justice to dissolve Parliament dated 21st September 2020 for contravening Article 131(2) as read together with Article 261(7) of the constitution.
(qq) A declaration that the respondent acted in contravention of the Constitution by disregarding the public interest in advising the President to dissolve Parliament.
(rr) A declaration that the advice of the respondent is legally and constitutionally incapable of execution given the absence of a transitional and facilitative legal and constitutional framework.
(ss) A declaration that the president’s role under Article 261(7) of the Constitution is discretionary.
(tt) A declaration that the respondent’s advice to the president is in violation of Article 261 of the Constitution.
(uu) A declaration that the order issued by the High Court on 29 March 2017 in Constitutional Petition No. 371 of 2016, Centre for Rights Education and Awareness & 2 Others versus Speaker, the National Assembly & 6 Others (2017) during the term of the eleventh (11th ) Parliament is not applicable to the twelfth parliament.
(vv) A declaration that the president is required to afford parliament fair administrative action before taking any steps under Article 261(7) of the Constitution.
6. Like the petitions against the Advisory, the suits supporting it share common prayers. A summary of these prayers are as follows:
(a) A declaration that Parliament as currently constituted is unconstitutional and has been since its establishment following the general elections on 8ᵗʰ August 2017.
(b) A declaration that because of its unconstitutionality and illegality, the 12ᵗʰ Parliament has no legal authority to exercise powers provided for in the Constitution and may not seek protection of this Court under Article s 22, 165(3) or 258 of the Constitution.
(c)A declaration that the obligation to pass any laws required under the Constitution applies to Parliament as an institution.
(d) A declaration that the President, upon receipt of the advice by the Chief Justice under Article 261(7), must dissolve Parliament within a reasonable time.
(e) A declaration that reasonable time for the dissolution of Parliament should be defined as a period not exceeding 21 days.
(f) An Order that if the President does not dissolve Parliament within the reasonable time established by this court, Parliament will be dissolved at the expiration of that period.
(g) An Order directing the Independent Electoral and Boundaries Commission to conduct an election of a new Parliament that complies with Article 81(6) within 90 days of either the President's dissolution of Parliament or the expiration of the reasonable time for dissolution established by the Court.
(h) An Order directing the newly-elected Parliament to pass legislation on the two-thirds gender principle required under the Constitution, particularly Article s 27(8) and 100(a), within 60 days of its sitting for its first business, failure to which Article 261(7) shall apply afresh.
(i) A declaration be and is hereby issued that the Chief Justice's Advisory opinion dated 21st September 2020 is not a mere recommendation to the president (with an option of being disregarded) but a constitutional command compelling the President in his capacity as head of state and government to dissolve parliament.
(j) A declaration be and is hereby issued that in light of the glaring loophole under Article 261 (7) which does not stipulate the timeframe within which the President is bound to dissolve Parliament, the circumstances justify the concept of a reasonable time which in the circumstances is a maximum of 21days from the date of issuance of the Chief Justice's Advisory.
(k)A declaration be and is hereby issued that Parliament automatically stands dissolved upon lapse of the "reasonable timeframe", notwithstanding the Presidents non-compliance with Article 261(7) of the constitution such that any business conducted by the said Parliament after the expiry of the reasonable time becomes illegal, unenforceable, null and void ab initio.
(l) A declaration be and is hereby issued that he President's compliance with the Chief Justice's Advisory will not cause an overthrow to the established constitutional order in terms of stability and efficacy. Put differently, the Chief Justice's Advisory opinion does not amount to an open invitation to President Uhuru to subvert the Constitution through abrogation of a Parliament that has been duly elected by the people by dint of Article 1(2) where sovereign power is exercised indirectly through the elected representatives.
(m) A declaration be and is hereby issued that the dissolution of Parliament will trigger by-elections as opposed to a general election.
(n) A declaration be and is hereby issued that Parliament is bound by the Principle of Perpetual Succession such that the 12th Parliament is liable and answerable for the acts and omissions of the 11th Parliament in as far as compliance with Article 261 is concerned.
(o)A declaration be and is hereby issued that the dissolution of Parliament in the circumstances does NOT envisage the dissolution of both houses i.e The National Assembly and the Senate but just the National Assembly Senate, hence Senate be and is hereby deemed a properly constituted Parliament under Article 93 so that it is mandated to discharge all the duties and functions of Parliament pending the coming into place of a new National Assembly.
(p) A declaration that in the Absence of representatives to exercise the delegated power, the people should be able to exercise the sovereign power directly.
7. When the petitions were consolidated on 18 February 2021, the order in which the main parties in the respective petitions would subsequently appear in the consolidated petition was not set out. To cater for this omission, we have listed these parties in the ascending order, with parties in the suits filed first in time being ranked first. However, for convenience and ease of reference, we may refer to parties by their identities in which they sued or have been sued.
8. One other thing we need to mention at this early stage is that this is the second bench to have been empanelled to determine this petition. The first bench heard and reserved the petition for judgment on 5 May 2021. The judgment was, however, not rendered because the National Assembly and the Senate appealed to the Court of Appeal in Civil Appeal No. E097 of 2021; National Assembly & Anor versus Chief Justice of the Republic of Kenya & Anor; Deputy Chief Justice & 12 Others (interested parties) [2021]KECA 539 (KLR) from where they obtained an order staying the proceedings in this Honourable Court on 28 May 2021. In their appeal, the appellants questioned the legal basis of the Deputy Chief Justice empanelling a bench of unequal number of judges under Article 165(4) of the Constitution.
9. On 9 May 2025 the Court of Appeal rendered its decision in Gachagua & 5 Others versus Maingi & 80 Others (2025) KECA (KLR) where a similar question arose. The appellants and the respondents in National Assembly & Anor versus Chief Justice of the Republic of Kenya & Anor; Deputy Chief Justice & 12 Others (interested parties) had informed the court that they would be bound by the decision in Gachagua & 5 Others versus Maingi & 80 Others and thus, the decision in this latter case effectively determined their appeal. The stay orders lapsed with this determination and, therefore, it is only on 11 July 2025 when the Court directed that the hearing of the petition would proceed on 29 September 2025. Even then the matter did not proceed until 6 March 2026.
10. By the time the Court of Appeal rendered its decision in Gachagua & 5 Others versus Maingi & 80 others, some members of the initial bench previously constituted to hear this petition had been elevated to the Court of Appeal while one other member of the bench retired. Of the five members who constituted the previous bench, only one still sits in the High Court.
11. That said, we note that in each of the petitions either for or against the Advisory, affidavits have been filed by the petitioners or their representatives in support of their petitions. Nonetheless, as will become apparent in due course, the facts culminating in the impugned Advisory and upon which all these suits are based, are not so much in dispute. Material to the petition are the facts that this Honourable Court made declarations declaring, inter alia, that the National Assembly and the Senate had failed in their joint and separate constitutional obligations to enact legislation necessary to give effect to the principle that not more than two thirds of the members of the National Assembly and the Senate shall be of the same gender and that failure by Parliament to enact the legislation contemplated under Article 27 (6) & (8) and 81 (b) of the Constitution amounted to a violation of the rights of women to equality and freedom from discrimination. The court also issued an order of mandamus compelling Parliament and the Honourable Attorney General to take steps to ensure that the required legislation was enacted within a period of sixty (60) days from the date of the order and to report the progress to the Chief Justice and, in default, the petitioners or any other person would be at liberty to petition the Chief Justice to advise the President to dissolve Parliament.
12. It is also not in dispute that no legislation was enacted in accordance with the court’s declarations or at all. Further, it is not in dispute that in the wake of the Honourable Court’s declarations, several petitions were made to the Chief Justice to advise the President to dissolve Parliament. Finally, it is not in dispute that, the Chief Justice eventually advised the President to dissolve Parliament.
13. At the background of what, in our humble view, are common grounds amongst the parties to this petition, is the impugned Advisory of 21 September 2020. We have been asked to determine the constitutionality or otherwise of the Chief Justice’s impugned Advisory and, in particular whether, in advising the President as he did, the Chief Justice was wary of the strict compliance with the provisions of Article 261 of the Constitution before advising the President to dissolve Parliament for the reason of its failure to enact any particular legislation within the such timelines as stipulated or prescribed by the Constitution. Tied to the Chief Justice’s Advisory is, of course, the order that set in motion the Chief Justice’s action.
14. When we consider the petition from this perspective, all we are left with to determine are, by and large, questions of law and not facts. But first, it is necessary that we state the parties’ cases as set out in their respective pleadings.
15. Perhaps, because they are the primary targets of the impugned Advisory, the Speakers of two Houses of Parliament appeal to us to be relatively more comprehensive in their pleadings. Not that the rest of the petitions do not bear as much weight or are less important; more importantly, going by the consolidation order made by this Honourable Court on 18 February 2021, the petition before us is a consolidated petition and our reference to any particular petition is not out of any preference of one petition to another but for convenience purposes only.
16. The Speakers of the two Houses have pleaded that the Respondents, including the Chief Justice, are all state officers as defined by Article 260 of the Constitution and by dint of Article 2(1) and (2) of the Constitution, they are enjoined to ensure that their actions are not only fair but also judicious, grounded in the law and not capricious or whimsical.
17. The Chief Justice’s role under Article 261(7) of the Constitution is said to be dual in nature; he has the administrative function of transmitting the Advisory to the President and a judicial function of determining whether the conditions precedent for the exercise of his discretion under Article 261 (7) of the Constitution have been met.
18. In exercising these functions, the Chief Justice is enjoined to respect the supremacy of the Constitution and, in particular, accord parties affected by his advice a right to be heard, as they are entitled to under Article 47 of the Constitution. The Chief Justice is also bound to consider the gravity of his Advisory to the President.
19. The two Speakers have invoked Article 19 of the Constitution which provides that the Bill of Rights is an integral part of Kenya's democratic state and is the framework for social, economic and cultural policies. Article 19(2) categorically states that the purpose of recognizing and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realization of the potential of all human beings.
20. They have also invoked Article 21 (1) of the Constitution which provides that it is the fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfil the rights and freedoms in the Bill of Rights. And according to Article 22(1) 'every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened'. Again, Article 258(1) of the Constitution provides that "every person has the right to institute court proceedings claiming that this Constitution has been contravened, or is threatened with contravention."
21. As far as the jurisdiction of this Honourable Court is concerned, it has been pleaded that the court is established under Article 165(1) of the Constitution and derives its jurisdiction from Article 165 (3) (d) (i) and (ii) which empowers it to hear any question respecting the interpretation of this Constitution including the determination of:
(i) the question whether any law is inconsistent with or in contravention of this Constitution;
(ii) the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;
(iii) any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government.
22. It is also contended that the court has supervisory jurisdiction under Article 165(6) of the Constitution that empowers it to supervise the various organs and institutions created by the Constitution including the office of the Chief Justice. The advice given by the Chief Justice to the President attracts the supervisory jurisdiction of this Honourable Court under Article 165(6).
23. Even though he was not sitting as a judge of the Supreme Court when exercising his functions under Article 261 (7) of the Constitution, the Chief Justice was nonetheless exercising a judicial function, to wit, the interpretation and application of a number of constitutional provisions. To that end, it is pleaded that the Chief Justice’s decision is subject to the Supervisory Jurisdiction of this Honourable Court under Article 165 (6) of the Constitution. The petitioners plead that the "Chameleon doctrine" brings the function of the Chief Justice within the scope of judicial function.
24. The petitioners have contended that in advising the President to dissolve parliament pursuant to Article 261 (7) of the Constitution, the Chief Justice failed to satisfy himself that an order was made by the High Court under Article 261 (6) (b) thereof. The Chief Justice, it is alleged, did not appreciate and, in fact, he was oblivious to the elaborate process of legislation in Parliament, by deliberately ignoring the evidence with which he was presented demonstrating that Parliament had indeed commenced the legislative process of complying with the court decision in Centre for Rights Education and Awareness & 2 others v Speaker the National Assembly & 6 others [2017] KEHC 8601 (KLR). Further, at the time the Chief Justice advised the President, the parliamentary process targeting the amendment of the Constitution and, subsequently, the enactment of the legislation on representation had gone through various stages of legislation.
25. In any event, the order in the Centre for Rights Education and Awareness & 2 others v Speaker the National Assembly & 6 Others case (supra) was directed at the 11th Parliament and not the 12th Parliament. It is pleaded that the term of the 11th Parliament expired on 8th August 2017. It is contended that Parliament is not a perpetual organ that survives successive elections; rather, it is a sitting of elected members brought to order upon swearing in to the respective Houses of Parliament. The new members are then gazetted and admitted into their respective Houses of Parliament to exercise the sovereign power of the people on a new slate.
26. According to the two Speakers, it is the membership that creates a Parliament such that the mandate of each House lapses with the conclusion of its constitutional term under Article 102 (1) of the Con
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