REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MALINDI
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
CONSTITUTIONAL PETITION NO. E015 OF 2024
(CONSOLIDATED WITH NAIROBI PETITION NO. E389 OF 2024, NAIROBI PETITION NO. E397 OF 2024 AND NAIROBI PETITION NO. E405 OF 2024)
SAITABAO OLE KANCHORY ………….……..…………… 1ST PETITIONER
KATIBA INSTITUTE ………………………………………... 2ND PETITIONER
CENTRE FOR RIGHTS, EDUCATION AWARENESS….. 3RD PETITIONER
INSTITUTE FOR SOCIAL ACCOUNTABILITY…………4TH PETITIONER COMMUNITY ADVOCACY AND
AWARENESS TRUST………………………………………….5TH PETITIONER
WORLD MARCH OF WOMEN – KENYA.…………..…… 6TH PETITIONER KENYA HUMAN RIGHTS COMMISSION ..……………… 7TH PETITIONER WANJIRU GIKONYO ..…………………………………… 8TH PETITIONER ELIUD KARANJA MATINDI..……………………………… 9TH PETITIONER
DR. MAGARE GIKENYI..……………………..………….. 10TH PETITIONER OKIYA OMTATAH OKOITI..……………………………… 11TH PETITIONER
-VERSUS-
THE PRESIDENT OF THE REPUBLIC OF KENYA……. 1ST RESPONDENT THE SPEAKER OF THE NATIONAL ASSEMBLY.…… 2ND RESPONDENT THE HON. ATTORNEY GENERAL …………...……. 3RD RESPONDENT THE NATIONAL ASSEMBLY……………....……..……. 4TH RESPONDENT
-AND-
JAMES OPIYO WANDAYI…………………………1ST INTERESTED PARTY
JOHN MBADI NG’ONGO ………….……………. 2ND INTERESTED PARTY
HASSAN ALI JOHO……………….……………….. 3RD INTERESTED PARTY
WYCLIFFE AMBETSA OPARANYA……………. 4TH INTERESTED PARTY
PROFESSOR KITHURE KINDIKI……………….. 5TH INTERESTED PARTY
ALICE WAHOME………………………………….. 6TH INTERESTED PARTY
ROSELINDA SOIPAN TUYA……...……...……..7TH INTERESTED PARTY ADEN BARRE DUALE………..……..……………8TH INTERESTED PARTY DAVIS CHIRCHIR………...….………..…………. 9TH INTERESTED PARTY SALIM MVURYA………………………………...10TH INTERESTED PARTY REBECCA MIANO………………………………… 11TH INTERESTED PARTY ALFRED NGANGA MUTUA…………...……… 12TH INTERESTED PARTY ONESIMUS KIPCHUMBA MURKOMEN …….. 13TH INTERESTED PARTY
JUSTIN BEDAN NJOKA MUTURI…………… 14TH INTERESTED PARTY DR. DEBRA MLONGO BARASA….…………… 15TH INTERESTED PARTY JULIUS MIGOS OGAMBA….…………………… 16TH INTERESTED PARTY
DR. ANDREW MWIHIA KARANJA……..…… 17TH INTERESTED PARTY
ERIC MURIITHI MUYAA….…………...….…… 18TH INTERESTED PARTY
DR. MARARET NYAMBURA NDUNG’U……. 19TH INTERESTED PARTY
STELLA SOI LANGAT…………..….…………… 20TH INTERESTED PARTY
BEATRICE ASKUL MOE….……………………… 21ST INTERESTED PARTY DORCAS AGIK ODUOR….…………………..… 22ND INTERESTED PARTY LAW SOCIETY OF KENYA….………………….. 23RD INTERESTED PARTY TRANSPARENCY INTERNATIONAL
KENYA ……………………………………………… 24THINTERESTED PARTY
HON. JUSTIN MUTURI….………………………25TH INTERESTED PARTY INUKA KENYA NA SISI ….……………….…….. 26TH INTERESTED PARTY HON. RIGATHI GACHAGUA …..…………..... 27TH INTERESTED PARTY
HON. MUSALIA MUDAVADI….…………..….. 28TH INTERESTED PARTY
ETHICS AND ANTI-CORRUPTION
COMMISSION……………………………………29TH INTERESTED PARTY LEE KINYANJUI........................................30TH INTERESTED PARTY GEOFFREY K. KIRINGA RUKU....................31ST INTERESTED PARTY
JUDGMENT
A. Introduction
1. Following the nationwide demonstrations that commenced on 18th June 2024 against the Finance Bill, 2024, significant political and constitutional developments unfolded within the Executive branch of Government, ultimately culminating in the present consolidated petitions. In response to the widespread public opposition to the Finance Bill, 2024, the President of the Republic of Kenya, on 26th June 2024, declined to assent to the Bill and referred it back to Parliament with a recommendation that it be withdrawn in its entirety. The President explained that his decision had been informed by the views and concerns expressed by Kenyans during the demonstrations and the broader public discourse surrounding the proposed legislation.
2. Subsequently, on 11th July 2024, through Gazette Notice No. 8440 and a Presidential Press Statement of the same date, the President dismissed all Cabinet Secretaries, with the exception of the Prime Cabinet Secretary. In the statement, the President indicated that the decision followed a holistic appraisal of the performance of the Cabinet, its achievements and challenges, as well as the feedback received from the people of Kenya regarding the responsiveness of the Government in the discharge of its functions. The President further stated that the reorganisation was intended to promote efficiency, effectiveness, transparency and accountability in public service delivery and to realign the governance structure of the Executive to better serve the needs and aspirations of Kenyans.
3. Thereafter, on 19th July 2024, the President announced the first batch of Cabinet Secretary nominees for consideration by the National Assembly. A further announcement followed on 23rd July 2024, in which the President adjusted certain nominations, including the reassignment of some nominees to different ministerial portfolios and the withdrawal of the nomination of one nominee to the office of Attorney-General. Following receipt of the nominations, the Speaker of the National Assembly referred the names to the Committee on Appointments and directed that the requisite approval process be undertaken in accordance with the Constitution and the Public Appointments (Parliamentary Approval) Act.
4. On 24th July 2024, the President announced a second batch of Cabinet Secretary nominees. The following day, 25th July 2024, the National Assembly invited members of the public to submit memoranda regarding the suitability of the nominees and published a notice scheduling approval hearings and vetting of the nominees between 1st August 2024 and 4th August 2024. Subsequently, on 30th July 2024, the President nominated an additional Cabinet Secretary and a nominee for the office of Attorney-General, thereby completing the list of appointments that were to undergo parliamentary scrutiny.
5. The nominations generated considerable public debate and attracted objections from various quarters. Among the concerns raised were allegations that the proposed composition of the Cabinet would fail to comply with the constitutional requirement that not more than two-thirds of the members of an appointive body be of the same gender. Concerns were also expressed regarding the nomination of several individuals who were previously associated with political parties in opposition to the ruling coalition and regarding the nomination of the Attorney-General, which some petitioners contended had not been preceded by a competitive and merit-based recruitment process.
6. Between 1st August 2024 and 5th August 2024, the Committee on Appointments of the National Assembly conducted approval hearings for the Cabinet Secretary nominees. Upon conclusion of the vetting process, the National Assembly approved nineteen nominees and rejected one nominee. On 7th August 2024, the President formally appointed the approved Cabinet Secretaries through Gazette Notice No. 9622. Thereafter, on 9th August 2024, the Committee on Appointments vetted the nominees for the office of Cabinet Secretary for East African Community Affairs and Regional Development and the office of Attorney-General. Following approval by the National Assembly, those nominees were appointed on 19th August 2024 through Gazette Notice Nos. 10346 and 10347, respectively.
7. Subsequent changes were also made to the composition of the Executive. Following the impeachment and removal of the Hon. Rigathi Gachagua as Deputy President, the President, on 18th October 2024, nominated Prof. Kithure Kindiki for appointment as Deputy President. The nomination was approved by the National Assembly, and Prof. Kindiki was subsequently sworn into office as Deputy President on 1st November 2024. Thereafter, on 19th December 2024, the President nominated Hon. Mutahi Kagwe, Hon. Lee Kinyanjui and Hon. William Kabogo for appointment as Cabinet Secretaries in various ministries. The National Assembly approved the nominations on 16th January 2025, and the appointments were subsequently formalized through Gazette Notice No. 379 of 2025.
8. Further changes to the Cabinet were announced on 26th March 2025, when the President nominated Ms. Hannah Wendot Cheptumo and Geoffrey Kiringa Ruku for appointment as Cabinet Secretaries and simultaneously reassigned certain serving Cabinet Secretaries to different ministries. On 3rd April 2025, the National Assembly announced that approval hearings for the nominees would be conducted on 14th April 2025. These nominations likewise attracted objections from some of the petitioners, who contended that the proposed appointments would further exacerbate the alleged non-compliance with the constitutional requirements relating to gender representation, inclusivity and diversity within the Executive.
9. It is against this backdrop of the dissolution and reconstitution of Cabinet, the nomination and appointment of Cabinet Secretaries and the Attorney-General, the appointment of a new Deputy President, and the subsequent reshuffles and appointments within the Executive, that the present consolidated petitions were instituted.
B. Description of Parties
10. The consolidated petitions were instituted by a diverse group of petitioners comprising individual citizens, constitutional organizations, human rights institutions, governance and accountability bodies, and civil society organizations.
11. The 1st, 8th,, 9th ,10th and 11th Petitioners are public-spirited Kenyan citizens who approached the Court in the public interest seeking enforcement of the Constitution. The 2nd Petitioner is a constitutional litigation and research institution whose mandate includes promoting constitutionalism, enhancing public understanding of the Constitution, and facilitating its implementation. The 3rd Petitioner is a national feminist women's rights organization dedicated to advancing gender equality and the protection of women's rights, while the 4th Petitioner is a civil society organization committed to promoting accountable governance and equitable distribution of public power. The 5th Petitioner is a non-profit organization that advocates for the protection and advancement of citizens' rights, particularly from a gender and governance perspective. The 6th Petitioner is a feminist social movement that seeks to challenge inequality, discrimination and exclusion affecting women. The 7th Petitioner is a human rights organization whose mandate includes the promotion of constitutionalism, the rule of law and the administration of justice.
12. The 1st Respondent is the President of the Republic of Kenya and the Head of State and Government, vested with executive authority under Articles 129, 131 and 132 of the Constitution. The 2nd Respondent is the Speaker of the National Assembly, while the 4th Respondent is the National Assembly, the legislative body charged, inter alia, with considering and approving presidential nominees to various State offices. The 3rd Respondent is the Honourable Attorney General, the principal legal adviser to the Government and the holder of the constitutional office established under Article 156 of the Constitution.
13. The Interested Parties comprise persons and institutions whose rights, interests or constitutional mandates are directly implicated by the issues raised in the consolidated petitions. The 1st to 21st, 25th, 30th and 31st Interested Parties are current or former Cabinet Secretaries whose nominations, approvals, appointments, reappointments, transfers or continued tenure in office form part of the subject matter of the dispute.
14. The 22nd Interested Party is the current Attorney-General, whose nomination and appointment are challenged in some of the petitions. The 23rd Interested Party is the Law Society of Kenya, a statutory body established to represent, protect and assist members of the legal profession and to advance the administration of justice and the rule of law.
15. The 24th Interested Party is a public interest organization engaged in promoting transparency, accountability, integrity and good governance. The 26th Interested Party is a citizen-led movement that seeks to foster civic engagement, national cohesion and transformative leadership. The 27th Interested Party is the former Deputy President of the Republic of Kenya, whose impeachment and subsequent replacement form part of the broader factual background to the petitions. The 28th Interested Party is the Prime Cabinet Secretary, while the 29th Interested Party is the Ethics and Anti-Corruption Commission, an independent constitutional commission established under Chapter Fifteen of the Constitution and mandated to combat corruption and promote ethical conduct in public affairs.
16. Given the multiplicity of parties, the breadth of issues raised, and the constitutional questions implicated by the dissolution and reconstitution of the Cabinet, the appointment of the Attorney-General, compliance with the principles of leadership and integrity, public participation, gender representation, inclusivity and constitutional governance, the petitions were consolidated for hearing and determination together.
C. Litigation history
17. The litigation giving rise to these consolidated petitions commenced shortly after the reconstitution of the Cabinet following the dissolution of the previous Cabinet in July 2024. The first matter to be filed was Malindi Constitutional Petition No. E015 of 2024 by the 1st Petitioner, on 26th July 2024. The Petition was accompanied by a Notice of Motion brought under a certificate of urgency seeking conservatory orders to restrain the National Assembly from undertaking the vetting and approval of the Cabinet Secretary nominees and to prohibit the President from appointing the nominees pending the hearing and determination of the Petition.
18. Subsequently, on 1st August 2024, the Petitioner filed a further application seeking certification that the matter raised substantial questions of constitutional law warranting empanelment of a bench under Article 165(4) of the Constitution. In the same application, the Petitioner sought the recusal of Hon. Justice Stephen M. Githinji from the proceedings.
19. The 1st Respondent entered an appearance and opposed the Petition, while the 2nd Respondent raised a preliminary objection challenging the jurisdiction of the Court to entertain the matter. Before the preliminary objection could be determined, the application for the recusal of Hon. Justice Githinji was argued. In a ruling declining recusal, the learned Judge explained the circumstances surrounding the alleged delay in dealing with the matter and held that no reasonable basis had been established to warrant his disqualification.
20. Having considered the issues raised in the Petition, the learned Judge was satisfied that the matter presented substantial questions of constitutional law and issues of great public importance touching on the composition of the national Executive, constitutional governance and public appointments. Consequently, the matter was referred to the Honourable Chief Justice for the empanelment of an uneven bench pursuant to Article 165(4) of the Constitution.
21. Meanwhile, on 5th August 2024, the 2nd to 6th Petitioners filed Nairobi Constitutional Petition No. E389 of 2024, together with a Notice of Motion under certificate of urgency. The Petition challenged the legality of the reconstituted Cabinet and sought, among other reliefs, declarations that the nomination and reappointment of previously dismissed Cabinet Secretaries violated the Constitution, particularly Articles 10, 27 and 35(3). Through the accompanying application, the Petitioners sought conservatory orders restraining the National Assembly from proceeding with the vetting and approval process, restraining the President from making appointments, and prohibiting the proposed Cabinet Secretaries and Attorney-General from assuming office or discharging any official functions pending the hearing and determination of the Petition.
22. The Petition was later amended on 30th September 2024. Thereafter, on 4th April 2025, the Petitioners filed a further application seeking leave to amend the Petition once again so as to reflect subsequent changes in Cabinet composition, including the joinder and substitution of newly appointed Cabinet Secretaries and nominees following the Cabinet reshuffles undertaken between December 2024 and March 2025.
23. On 8th August 2024, the 7th and 8th Petitioners instituted Nairobi Constitutional Petition No. E397 of 2024 accompanied by a Notice of Motion seeking certification of urgency and referral of the matter to the Chief Justice for empanelment of a multi-judge bench. The Petition principally challenged the constitutionality of the public participation process undertaken by the National Assembly during the vetting and approval of Cabinet Secretary nominees. The Petitioners also sought orders compelling disclosure of all records and documents relating to the nomination, vetting, approval and appointment process. Subsequently, on 23rd September 2024, Haki Yetu Charitable Trust filed an application seeking leave to participate in the proceedings as an Interested Party.
24. On 9th August 2024, the 9th, 10th and 11th Petitioners filed Nairobi Constitutional Petition No. E405 of 2024 together with a Notice of Motion under certificate of urgency seeking conservatory orders suspending the appointments of Cabinet Secretaries and restraining them from exercising the functions of their respective offices pending determination of the Petition. The Petition challenged, inter alia, the appointments of the Cabinet Secretaries and the Attorney-General and sought declarations invalidating the nominations and appointments of the 1st to 19th Interested Parties, the Attorney-General and other State officers. The Petitioners also sought certification that the matter raised substantial questions of constitutional law warranting referral to the Chief Justice for empanelment of an uneven bench.
25. Subsequently, on 16th August 2024, the Petitioners filed an application seeking leave to effect substituted service upon the Interested Parties through publication in a newspaper of national circulation. On 22nd August 2024, they filed a further application seeking leave to amend the Petition, to join additional Interested Parties, to suspend the appointments of the Cabinet Secretaries and Attorney-General, and to restrain the Controller of Budget from authorising payment of salaries and benefits to the impugned office holders pending determination of the dispute.
26. Given the multiplicity of petitions filed before different courts and the substantial overlap in the constitutional questions raised, applications were made seeking consolidation and coordinated determination of the various proceedings. In particular, on 17th September 2024, the 2nd Respondent in Nairobi Petition No. E405 of 2024 filed an application seeking either the stay or consolidation of several related constitutional petitions then pending before the High Court, including Nairobi Petition Nos. E363 of 2024, E364 of 2024, E372 of 2024, E381 of 2024, E389 of 2024, E397 of 2024, E403 of 2024 and E433 of 2024. The application was premised on the contention that the petitions raised substantially similar questions concerning the legality and constitutionality of the Cabinet appointments and should therefore be heard together and determined through a single judgment.
27. On 25th September 2024, the Court ordered the consolidation of Nairobi Petition Nos. E397 of 2024 and E398 of 2024. On the same date, the Court allowed the application by the Petitioners in Nairobi Petition No. E405 of 2024 seeking consolidation with Nairobi Petition Nos. E397 of 2024, E398 of 2024 and Malindi Petition No. E015 of 2024, having found that the petitions arose from the same series of constitutional events, challenged substantially the same nominations and appointments, and raised common questions concerning public participation, constitutional appointments, gender representation, leadership and integrity, parliamentary approval processes, and the exercise of presidential power. The Court accordingly directed that the matters proceed together for purposes of hearing and determination, and Malindi Petition No. E015 of 2024 became the lead file.
28. During subsequent case management conferences, the parties agreed that the preliminary objection challenging the jurisdiction of the Court would be heard and determined together with the substantive petitions. It was further agreed that the conservatory orders initially sought in the application dated 26th July 2024 had largely been overtaken by events following the completion of the vetting process, parliamentary approval of the nominees and their subsequent appointment and assumption of office. Consequently, the Court directed that the consolidated petitions proceed to hearing on the merits, leading to the present judgment.
D. Petitioners’ Case
1st Petitioner’s Case
29. In Malindi Petition No. E015/2024, the 1st Petitioner herein vide a further amended Petition dated 4th April 2025 sought the following orders:
a) A declaration that the President has acted in contravention of the Constitution in nominating, appointing and maintaining a Cabinet that does not meet the two-thirds gender requirement under Articles 10 and 27 (8) of the Constitution.
b) A declaration that the National Assembly violated the Constitution by accepting and approving nominees for Cabinet positions when it was clear that it would effectively violate the rule of law and specifically Article 27 (8) of the Constitution.
c) A declaration that since the Cabinet fails the test of legality under Articles 152 (1), 152 (2) and Article 27 (8), as constituted, the Cabinet is in violation of Article 3 (2) and per Article 2 (4) of the Constitution and is invalid.
d) Based on (d) above, any action/decision/policy position/directive/ Gazette notice made by the Cabinet in its corporate state or by the individual Cabinet Secretaries from the date their appointments took effect, that is 7th August 2024 and 20th August 2024, 18th October 2024 and 1st November 2024, 19th December 2024 and 16th January 2025, 26th March 2025 respectively are a nullity in law and of no legal effect.
e) An Order directed at the Secretary to the Cabinet restraining him from whatsoever paying any salaries, emoluments or according any benefits to any person appointed as Cabinet Secretary.
f) A declaration that the President’s nomination of dismissed Cabinet Secretaries for reappointment without providing reasons to the public for their renomination and reappointment was contrary to Article 35 (3) of the Constitution and Section 5 (1) (c) of the Access to Information Act.
g) A declaration that the dismissal of the nine (9) persons listed below as Cabinet Secretaries made them ineligible to be nominated as Cabinet Secretaries on account of the operation of Chapter 6 of the Constitution and specifically Article 75 (3) of the Constitution. Therefore, their renomination and any reappointment are unconstitutional. i. Prof. Kithure Kindiki ii. Hon. Alice Wahome iii. Hon. Roselinda Soipan Tuiya iv. Hon. Aden Barre Duale v. Hon. Davis Chirchir vi. Hon. Rebecca Miano vii. Hon. Onesimus Kipchumba Murkomen viii. Hon. Salim Mvurya Mgala ix. Hon. Alfred Nganga Mutua.
h) An order prohibiting the nine (9) persons listed below from holding office as Cabinet Secretaries disqualifying them to hold any other office as a State Officers on account of operation of Chapter 6 of the Constitution and specifically Article 75 (3) of the Constitution. i. Prof. Kithure Kindiki ii. Hon. Alice Wahome iii. Hon. Roselinda Soipan Tuiya iv. Hon. Aden Barre Duale v. Hon. Davis Chirchir vi. Hon. Rebecca Miano vii. Hon Onesimus Kipchumba Murkomen viii. Hon. Salim Mvurya Mgala ix. Hon. Alfred Nganga Mutua (sic).
i) An Order requiring the President to reconstitute the Cabinet within 21 (twenty-one) days in strict compliance with the Constitution, Article 27 (8), legal principles set out and orders made in Petition 566 of 2015 – Marilyn Muthoni Kamuru & 2 Others v. The Attorney-General and Another and in adherence to the principles of rule of law and good governance.
j) Any other prayers this Court deems fit.
30. The 1st Petitioner challenged the nomination and appointment of the 1st, 2nd and 3rd Interested Parties as Cabinet Secretaries on the basis that, at the time of their nomination, they were serving as Members of Parliament and held senior leadership positions within the Orange Democratic Movement (ODM), a political party forming part of the opposition coalition. The 1st Petitioner contended that the appointments undermined the constitutional architecture of Kenya’s multiparty democratic system by effectively incorporating key opposition leaders into the Executive, thereby weakening the capacity of the opposition to perform its constitutional role of holding the Government accountable. It was his case that the appointments diluted the oversight function vested in the National Assembly under Article 95(4)(c) and (5) of the Constitution and diminished the effectiveness of democratic checks and balances contemplated by the Constitution.
31. According to the 1st Petitioner, a vibrant, independent and effective opposition is an indispensable component of Kenya’s constitutional democracy and a necessary safeguard for the realization of the national values and principles of governance set out in Article 10(2), including democracy, good governance, integrity, transparency and accountability. He argued that by appointing senior opposition leaders to Cabinet, the President effectively weakened the institutional capacity of the opposition and thereby undermined the multiparty democratic order established under Article 4(2) of the Constitution.
32. In his view, the appointments risked creating a de facto one-party state, contrary to the constitutional design which envisages political pluralism, robust democratic contestation and effective oversight of the Executive. He further asserted that the constitutional values of democracy and good governance are among the matters protected under Article 255(1)(d) of the Constitution and may only be altered through a referendum. Consequently, he maintained that any executive action that substantially erodes the multiparty democratic framework amounts to a violation of the Constitution.
33. The 1st Petitioner further contended that the actions of the President were inconsistent with the obligations imposed upon the President under Articles 2, 3, 10, 73(1)(a)(i), 131(2) and 132 of the Constitution to respect, uphold and safeguard the Constitution. He argued that the nominations and appointments were undertaken without due regard to the constitutional principles of democratic governance and public accountability and were therefore contrary to the public interest.
34. The 1st Petitioner additionally challenged the re-nomination and subsequent reappointment of the 5th to 14th Interested Parties shortly after their dismissal from Cabinet. He argued that the President had publicly justified the dismissal of the Cabinet on grounds relating to governance, accountability, integrity, performance and responsiveness to the concerns of Kenyans. In those circumstances, the decision to reappoint many of the same individuals to Cabinet within a short period of time was, in his view, irrational, inconsistent and contrary to the constitutional principles of leadership and integrity enshrined in Article 73(2)(a) of the Constitution. He further contended that the reappointments were incompatible with the obligation imposed on the President under Articles 129 and 131(2)(a) to exercise executive authority in a manner that is consistent with the purposes and objects of the Constitution and that serves the people of Kenya. Consequently, he maintained that the nominations and appointments of the 1st to 14th Interested Parties were undertaken in disregard of the Constitution, constitutional values and the broader public interest.
2nd- 6th Petitioners’ case
35. In Nairobi Petition No. E389/2024, the 2nd – 6th Petitioners vide an amended Petition dated 30th September 2024 sought the following orders:
a) A declaration that the President has acted in contravention of the Constitution in nominating, appointing and maintaining a Cabinet that does not meet the two-thirds gender requirement under Articles 10 and 27 (8) of the Constitution.
b) A declaration that the National Assembly violated the Constitution by accepting and approving nominees for Cabinet positions when it was clear that it would effectively violate the rule of law and specifically Article 27 (8) of the Constitution.
c) A declaration that since the Cabinet fails the test of legality under Articles 152 (1), 152 (2) and Article 27 (8), as constituted, the Cabinet is in violation of Article 3 (2) and per Article 2 (4) of the Constitution and is invalid.
d) Based on (d) above, any action/decision/policy position/directive/ Gazette notice made by the Cabinet in its corporate state or by the individual Cabinet Secretaries from the date their appointments took effect, that is 7th August 2024 and 20th August 2024, 18th October 2024 and 1st November 2024, 19th December 2024 and 16th January 2025, 26th March 2025 respectively are a nullity in law and of no legal effect.
e) An Order directed at the Secretary to the Cabinet restraining him from whatsoever paying any salaries, emoluments or according any benefits to any person appointed as Cabinet Secretary.
f) A declaration that the President’s nomination of dismissed Cabinet Secretaries for reappointment without providing reasons to the public for their renomination and reappointment was contrary to Article 35 (3) of the Constitution and Section 5 (1) (c) of the Access to Information Act.
g) A declaration that the dismissal of the nine (9) persons listed below as Cabinet Secretaries made them ineligible to be nominated as Cabinet Secretaries on account of the operation of Chapter 6 of the Constitution and specifically Ar
[...truncated]
IN THE HIGH COURT OF KENYA AT MALINDI
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
CONSTITUTIONAL PETITION NO. E015 OF 2024
(CONSOLIDATED WITH NAIROBI PETITION NO. E389 OF 2024, NAIROBI PETITION NO. E397 OF 2024 AND NAIROBI PETITION NO. E405 OF 2024)
SAITABAO OLE KANCHORY ………….……..…………… 1ST PETITIONER
KATIBA INSTITUTE ………………………………………... 2ND PETITIONER
CENTRE FOR RIGHTS, EDUCATION AWARENESS….. 3RD PETITIONER
INSTITUTE FOR SOCIAL ACCOUNTABILITY…………4TH PETITIONER COMMUNITY ADVOCACY AND
AWARENESS TRUST………………………………………….5TH PETITIONER
WORLD MARCH OF WOMEN – KENYA.…………..…… 6TH PETITIONER KENYA HUMAN RIGHTS COMMISSION ..……………… 7TH PETITIONER WANJIRU GIKONYO ..…………………………………… 8TH PETITIONER ELIUD KARANJA MATINDI..……………………………… 9TH PETITIONER
DR. MAGARE GIKENYI..……………………..………….. 10TH PETITIONER OKIYA OMTATAH OKOITI..……………………………… 11TH PETITIONER
-VERSUS-
THE PRESIDENT OF THE REPUBLIC OF KENYA……. 1ST RESPONDENT THE SPEAKER OF THE NATIONAL ASSEMBLY.…… 2ND RESPONDENT THE HON. ATTORNEY GENERAL …………...……. 3RD RESPONDENT THE NATIONAL ASSEMBLY……………....……..……. 4TH RESPONDENT
-AND-
JAMES OPIYO WANDAYI…………………………1ST INTERESTED PARTY
JOHN MBADI NG’ONGO ………….……………. 2ND INTERESTED PARTY
HASSAN ALI JOHO……………….……………….. 3RD INTERESTED PARTY
WYCLIFFE AMBETSA OPARANYA……………. 4TH INTERESTED PARTY
PROFESSOR KITHURE KINDIKI……………….. 5TH INTERESTED PARTY
ALICE WAHOME………………………………….. 6TH INTERESTED PARTY
ROSELINDA SOIPAN TUYA……...……...……..7TH INTERESTED PARTY ADEN BARRE DUALE………..……..……………8TH INTERESTED PARTY DAVIS CHIRCHIR………...….………..…………. 9TH INTERESTED PARTY SALIM MVURYA………………………………...10TH INTERESTED PARTY REBECCA MIANO………………………………… 11TH INTERESTED PARTY ALFRED NGANGA MUTUA…………...……… 12TH INTERESTED PARTY ONESIMUS KIPCHUMBA MURKOMEN …….. 13TH INTERESTED PARTY
JUSTIN BEDAN NJOKA MUTURI…………… 14TH INTERESTED PARTY DR. DEBRA MLONGO BARASA….…………… 15TH INTERESTED PARTY JULIUS MIGOS OGAMBA….…………………… 16TH INTERESTED PARTY
DR. ANDREW MWIHIA KARANJA……..…… 17TH INTERESTED PARTY
ERIC MURIITHI MUYAA….…………...….…… 18TH INTERESTED PARTY
DR. MARARET NYAMBURA NDUNG’U……. 19TH INTERESTED PARTY
STELLA SOI LANGAT…………..….…………… 20TH INTERESTED PARTY
BEATRICE ASKUL MOE….……………………… 21ST INTERESTED PARTY DORCAS AGIK ODUOR….…………………..… 22ND INTERESTED PARTY LAW SOCIETY OF KENYA….………………….. 23RD INTERESTED PARTY TRANSPARENCY INTERNATIONAL
KENYA ……………………………………………… 24THINTERESTED PARTY
HON. JUSTIN MUTURI….………………………25TH INTERESTED PARTY INUKA KENYA NA SISI ….……………….…….. 26TH INTERESTED PARTY HON. RIGATHI GACHAGUA …..…………..... 27TH INTERESTED PARTY
HON. MUSALIA MUDAVADI….…………..….. 28TH INTERESTED PARTY
ETHICS AND ANTI-CORRUPTION
COMMISSION……………………………………29TH INTERESTED PARTY LEE KINYANJUI........................................30TH INTERESTED PARTY GEOFFREY K. KIRINGA RUKU....................31ST INTERESTED PARTY
JUDGMENT
A. Introduction
1. Following the nationwide demonstrations that commenced on 18th June 2024 against the Finance Bill, 2024, significant political and constitutional developments unfolded within the Executive branch of Government, ultimately culminating in the present consolidated petitions. In response to the widespread public opposition to the Finance Bill, 2024, the President of the Republic of Kenya, on 26th June 2024, declined to assent to the Bill and referred it back to Parliament with a recommendation that it be withdrawn in its entirety. The President explained that his decision had been informed by the views and concerns expressed by Kenyans during the demonstrations and the broader public discourse surrounding the proposed legislation.
2. Subsequently, on 11th July 2024, through Gazette Notice No. 8440 and a Presidential Press Statement of the same date, the President dismissed all Cabinet Secretaries, with the exception of the Prime Cabinet Secretary. In the statement, the President indicated that the decision followed a holistic appraisal of the performance of the Cabinet, its achievements and challenges, as well as the feedback received from the people of Kenya regarding the responsiveness of the Government in the discharge of its functions. The President further stated that the reorganisation was intended to promote efficiency, effectiveness, transparency and accountability in public service delivery and to realign the governance structure of the Executive to better serve the needs and aspirations of Kenyans.
3. Thereafter, on 19th July 2024, the President announced the first batch of Cabinet Secretary nominees for consideration by the National Assembly. A further announcement followed on 23rd July 2024, in which the President adjusted certain nominations, including the reassignment of some nominees to different ministerial portfolios and the withdrawal of the nomination of one nominee to the office of Attorney-General. Following receipt of the nominations, the Speaker of the National Assembly referred the names to the Committee on Appointments and directed that the requisite approval process be undertaken in accordance with the Constitution and the Public Appointments (Parliamentary Approval) Act.
4. On 24th July 2024, the President announced a second batch of Cabinet Secretary nominees. The following day, 25th July 2024, the National Assembly invited members of the public to submit memoranda regarding the suitability of the nominees and published a notice scheduling approval hearings and vetting of the nominees between 1st August 2024 and 4th August 2024. Subsequently, on 30th July 2024, the President nominated an additional Cabinet Secretary and a nominee for the office of Attorney-General, thereby completing the list of appointments that were to undergo parliamentary scrutiny.
5. The nominations generated considerable public debate and attracted objections from various quarters. Among the concerns raised were allegations that the proposed composition of the Cabinet would fail to comply with the constitutional requirement that not more than two-thirds of the members of an appointive body be of the same gender. Concerns were also expressed regarding the nomination of several individuals who were previously associated with political parties in opposition to the ruling coalition and regarding the nomination of the Attorney-General, which some petitioners contended had not been preceded by a competitive and merit-based recruitment process.
6. Between 1st August 2024 and 5th August 2024, the Committee on Appointments of the National Assembly conducted approval hearings for the Cabinet Secretary nominees. Upon conclusion of the vetting process, the National Assembly approved nineteen nominees and rejected one nominee. On 7th August 2024, the President formally appointed the approved Cabinet Secretaries through Gazette Notice No. 9622. Thereafter, on 9th August 2024, the Committee on Appointments vetted the nominees for the office of Cabinet Secretary for East African Community Affairs and Regional Development and the office of Attorney-General. Following approval by the National Assembly, those nominees were appointed on 19th August 2024 through Gazette Notice Nos. 10346 and 10347, respectively.
7. Subsequent changes were also made to the composition of the Executive. Following the impeachment and removal of the Hon. Rigathi Gachagua as Deputy President, the President, on 18th October 2024, nominated Prof. Kithure Kindiki for appointment as Deputy President. The nomination was approved by the National Assembly, and Prof. Kindiki was subsequently sworn into office as Deputy President on 1st November 2024. Thereafter, on 19th December 2024, the President nominated Hon. Mutahi Kagwe, Hon. Lee Kinyanjui and Hon. William Kabogo for appointment as Cabinet Secretaries in various ministries. The National Assembly approved the nominations on 16th January 2025, and the appointments were subsequently formalized through Gazette Notice No. 379 of 2025.
8. Further changes to the Cabinet were announced on 26th March 2025, when the President nominated Ms. Hannah Wendot Cheptumo and Geoffrey Kiringa Ruku for appointment as Cabinet Secretaries and simultaneously reassigned certain serving Cabinet Secretaries to different ministries. On 3rd April 2025, the National Assembly announced that approval hearings for the nominees would be conducted on 14th April 2025. These nominations likewise attracted objections from some of the petitioners, who contended that the proposed appointments would further exacerbate the alleged non-compliance with the constitutional requirements relating to gender representation, inclusivity and diversity within the Executive.
9. It is against this backdrop of the dissolution and reconstitution of Cabinet, the nomination and appointment of Cabinet Secretaries and the Attorney-General, the appointment of a new Deputy President, and the subsequent reshuffles and appointments within the Executive, that the present consolidated petitions were instituted.
B. Description of Parties
10. The consolidated petitions were instituted by a diverse group of petitioners comprising individual citizens, constitutional organizations, human rights institutions, governance and accountability bodies, and civil society organizations.
11. The 1st, 8th,, 9th ,10th and 11th Petitioners are public-spirited Kenyan citizens who approached the Court in the public interest seeking enforcement of the Constitution. The 2nd Petitioner is a constitutional litigation and research institution whose mandate includes promoting constitutionalism, enhancing public understanding of the Constitution, and facilitating its implementation. The 3rd Petitioner is a national feminist women's rights organization dedicated to advancing gender equality and the protection of women's rights, while the 4th Petitioner is a civil society organization committed to promoting accountable governance and equitable distribution of public power. The 5th Petitioner is a non-profit organization that advocates for the protection and advancement of citizens' rights, particularly from a gender and governance perspective. The 6th Petitioner is a feminist social movement that seeks to challenge inequality, discrimination and exclusion affecting women. The 7th Petitioner is a human rights organization whose mandate includes the promotion of constitutionalism, the rule of law and the administration of justice.
12. The 1st Respondent is the President of the Republic of Kenya and the Head of State and Government, vested with executive authority under Articles 129, 131 and 132 of the Constitution. The 2nd Respondent is the Speaker of the National Assembly, while the 4th Respondent is the National Assembly, the legislative body charged, inter alia, with considering and approving presidential nominees to various State offices. The 3rd Respondent is the Honourable Attorney General, the principal legal adviser to the Government and the holder of the constitutional office established under Article 156 of the Constitution.
13. The Interested Parties comprise persons and institutions whose rights, interests or constitutional mandates are directly implicated by the issues raised in the consolidated petitions. The 1st to 21st, 25th, 30th and 31st Interested Parties are current or former Cabinet Secretaries whose nominations, approvals, appointments, reappointments, transfers or continued tenure in office form part of the subject matter of the dispute.
14. The 22nd Interested Party is the current Attorney-General, whose nomination and appointment are challenged in some of the petitions. The 23rd Interested Party is the Law Society of Kenya, a statutory body established to represent, protect and assist members of the legal profession and to advance the administration of justice and the rule of law.
15. The 24th Interested Party is a public interest organization engaged in promoting transparency, accountability, integrity and good governance. The 26th Interested Party is a citizen-led movement that seeks to foster civic engagement, national cohesion and transformative leadership. The 27th Interested Party is the former Deputy President of the Republic of Kenya, whose impeachment and subsequent replacement form part of the broader factual background to the petitions. The 28th Interested Party is the Prime Cabinet Secretary, while the 29th Interested Party is the Ethics and Anti-Corruption Commission, an independent constitutional commission established under Chapter Fifteen of the Constitution and mandated to combat corruption and promote ethical conduct in public affairs.
16. Given the multiplicity of parties, the breadth of issues raised, and the constitutional questions implicated by the dissolution and reconstitution of the Cabinet, the appointment of the Attorney-General, compliance with the principles of leadership and integrity, public participation, gender representation, inclusivity and constitutional governance, the petitions were consolidated for hearing and determination together.
C. Litigation history
17. The litigation giving rise to these consolidated petitions commenced shortly after the reconstitution of the Cabinet following the dissolution of the previous Cabinet in July 2024. The first matter to be filed was Malindi Constitutional Petition No. E015 of 2024 by the 1st Petitioner, on 26th July 2024. The Petition was accompanied by a Notice of Motion brought under a certificate of urgency seeking conservatory orders to restrain the National Assembly from undertaking the vetting and approval of the Cabinet Secretary nominees and to prohibit the President from appointing the nominees pending the hearing and determination of the Petition.
18. Subsequently, on 1st August 2024, the Petitioner filed a further application seeking certification that the matter raised substantial questions of constitutional law warranting empanelment of a bench under Article 165(4) of the Constitution. In the same application, the Petitioner sought the recusal of Hon. Justice Stephen M. Githinji from the proceedings.
19. The 1st Respondent entered an appearance and opposed the Petition, while the 2nd Respondent raised a preliminary objection challenging the jurisdiction of the Court to entertain the matter. Before the preliminary objection could be determined, the application for the recusal of Hon. Justice Githinji was argued. In a ruling declining recusal, the learned Judge explained the circumstances surrounding the alleged delay in dealing with the matter and held that no reasonable basis had been established to warrant his disqualification.
20. Having considered the issues raised in the Petition, the learned Judge was satisfied that the matter presented substantial questions of constitutional law and issues of great public importance touching on the composition of the national Executive, constitutional governance and public appointments. Consequently, the matter was referred to the Honourable Chief Justice for the empanelment of an uneven bench pursuant to Article 165(4) of the Constitution.
21. Meanwhile, on 5th August 2024, the 2nd to 6th Petitioners filed Nairobi Constitutional Petition No. E389 of 2024, together with a Notice of Motion under certificate of urgency. The Petition challenged the legality of the reconstituted Cabinet and sought, among other reliefs, declarations that the nomination and reappointment of previously dismissed Cabinet Secretaries violated the Constitution, particularly Articles 10, 27 and 35(3). Through the accompanying application, the Petitioners sought conservatory orders restraining the National Assembly from proceeding with the vetting and approval process, restraining the President from making appointments, and prohibiting the proposed Cabinet Secretaries and Attorney-General from assuming office or discharging any official functions pending the hearing and determination of the Petition.
22. The Petition was later amended on 30th September 2024. Thereafter, on 4th April 2025, the Petitioners filed a further application seeking leave to amend the Petition once again so as to reflect subsequent changes in Cabinet composition, including the joinder and substitution of newly appointed Cabinet Secretaries and nominees following the Cabinet reshuffles undertaken between December 2024 and March 2025.
23. On 8th August 2024, the 7th and 8th Petitioners instituted Nairobi Constitutional Petition No. E397 of 2024 accompanied by a Notice of Motion seeking certification of urgency and referral of the matter to the Chief Justice for empanelment of a multi-judge bench. The Petition principally challenged the constitutionality of the public participation process undertaken by the National Assembly during the vetting and approval of Cabinet Secretary nominees. The Petitioners also sought orders compelling disclosure of all records and documents relating to the nomination, vetting, approval and appointment process. Subsequently, on 23rd September 2024, Haki Yetu Charitable Trust filed an application seeking leave to participate in the proceedings as an Interested Party.
24. On 9th August 2024, the 9th, 10th and 11th Petitioners filed Nairobi Constitutional Petition No. E405 of 2024 together with a Notice of Motion under certificate of urgency seeking conservatory orders suspending the appointments of Cabinet Secretaries and restraining them from exercising the functions of their respective offices pending determination of the Petition. The Petition challenged, inter alia, the appointments of the Cabinet Secretaries and the Attorney-General and sought declarations invalidating the nominations and appointments of the 1st to 19th Interested Parties, the Attorney-General and other State officers. The Petitioners also sought certification that the matter raised substantial questions of constitutional law warranting referral to the Chief Justice for empanelment of an uneven bench.
25. Subsequently, on 16th August 2024, the Petitioners filed an application seeking leave to effect substituted service upon the Interested Parties through publication in a newspaper of national circulation. On 22nd August 2024, they filed a further application seeking leave to amend the Petition, to join additional Interested Parties, to suspend the appointments of the Cabinet Secretaries and Attorney-General, and to restrain the Controller of Budget from authorising payment of salaries and benefits to the impugned office holders pending determination of the dispute.
26. Given the multiplicity of petitions filed before different courts and the substantial overlap in the constitutional questions raised, applications were made seeking consolidation and coordinated determination of the various proceedings. In particular, on 17th September 2024, the 2nd Respondent in Nairobi Petition No. E405 of 2024 filed an application seeking either the stay or consolidation of several related constitutional petitions then pending before the High Court, including Nairobi Petition Nos. E363 of 2024, E364 of 2024, E372 of 2024, E381 of 2024, E389 of 2024, E397 of 2024, E403 of 2024 and E433 of 2024. The application was premised on the contention that the petitions raised substantially similar questions concerning the legality and constitutionality of the Cabinet appointments and should therefore be heard together and determined through a single judgment.
27. On 25th September 2024, the Court ordered the consolidation of Nairobi Petition Nos. E397 of 2024 and E398 of 2024. On the same date, the Court allowed the application by the Petitioners in Nairobi Petition No. E405 of 2024 seeking consolidation with Nairobi Petition Nos. E397 of 2024, E398 of 2024 and Malindi Petition No. E015 of 2024, having found that the petitions arose from the same series of constitutional events, challenged substantially the same nominations and appointments, and raised common questions concerning public participation, constitutional appointments, gender representation, leadership and integrity, parliamentary approval processes, and the exercise of presidential power. The Court accordingly directed that the matters proceed together for purposes of hearing and determination, and Malindi Petition No. E015 of 2024 became the lead file.
28. During subsequent case management conferences, the parties agreed that the preliminary objection challenging the jurisdiction of the Court would be heard and determined together with the substantive petitions. It was further agreed that the conservatory orders initially sought in the application dated 26th July 2024 had largely been overtaken by events following the completion of the vetting process, parliamentary approval of the nominees and their subsequent appointment and assumption of office. Consequently, the Court directed that the consolidated petitions proceed to hearing on the merits, leading to the present judgment.
D. Petitioners’ Case
1st Petitioner’s Case
29. In Malindi Petition No. E015/2024, the 1st Petitioner herein vide a further amended Petition dated 4th April 2025 sought the following orders:
a) A declaration that the President has acted in contravention of the Constitution in nominating, appointing and maintaining a Cabinet that does not meet the two-thirds gender requirement under Articles 10 and 27 (8) of the Constitution.
b) A declaration that the National Assembly violated the Constitution by accepting and approving nominees for Cabinet positions when it was clear that it would effectively violate the rule of law and specifically Article 27 (8) of the Constitution.
c) A declaration that since the Cabinet fails the test of legality under Articles 152 (1), 152 (2) and Article 27 (8), as constituted, the Cabinet is in violation of Article 3 (2) and per Article 2 (4) of the Constitution and is invalid.
d) Based on (d) above, any action/decision/policy position/directive/ Gazette notice made by the Cabinet in its corporate state or by the individual Cabinet Secretaries from the date their appointments took effect, that is 7th August 2024 and 20th August 2024, 18th October 2024 and 1st November 2024, 19th December 2024 and 16th January 2025, 26th March 2025 respectively are a nullity in law and of no legal effect.
e) An Order directed at the Secretary to the Cabinet restraining him from whatsoever paying any salaries, emoluments or according any benefits to any person appointed as Cabinet Secretary.
f) A declaration that the President’s nomination of dismissed Cabinet Secretaries for reappointment without providing reasons to the public for their renomination and reappointment was contrary to Article 35 (3) of the Constitution and Section 5 (1) (c) of the Access to Information Act.
g) A declaration that the dismissal of the nine (9) persons listed below as Cabinet Secretaries made them ineligible to be nominated as Cabinet Secretaries on account of the operation of Chapter 6 of the Constitution and specifically Article 75 (3) of the Constitution. Therefore, their renomination and any reappointment are unconstitutional. i. Prof. Kithure Kindiki ii. Hon. Alice Wahome iii. Hon. Roselinda Soipan Tuiya iv. Hon. Aden Barre Duale v. Hon. Davis Chirchir vi. Hon. Rebecca Miano vii. Hon. Onesimus Kipchumba Murkomen viii. Hon. Salim Mvurya Mgala ix. Hon. Alfred Nganga Mutua.
h) An order prohibiting the nine (9) persons listed below from holding office as Cabinet Secretaries disqualifying them to hold any other office as a State Officers on account of operation of Chapter 6 of the Constitution and specifically Article 75 (3) of the Constitution. i. Prof. Kithure Kindiki ii. Hon. Alice Wahome iii. Hon. Roselinda Soipan Tuiya iv. Hon. Aden Barre Duale v. Hon. Davis Chirchir vi. Hon. Rebecca Miano vii. Hon Onesimus Kipchumba Murkomen viii. Hon. Salim Mvurya Mgala ix. Hon. Alfred Nganga Mutua (sic).
i) An Order requiring the President to reconstitute the Cabinet within 21 (twenty-one) days in strict compliance with the Constitution, Article 27 (8), legal principles set out and orders made in Petition 566 of 2015 – Marilyn Muthoni Kamuru & 2 Others v. The Attorney-General and Another and in adherence to the principles of rule of law and good governance.
j) Any other prayers this Court deems fit.
30. The 1st Petitioner challenged the nomination and appointment of the 1st, 2nd and 3rd Interested Parties as Cabinet Secretaries on the basis that, at the time of their nomination, they were serving as Members of Parliament and held senior leadership positions within the Orange Democratic Movement (ODM), a political party forming part of the opposition coalition. The 1st Petitioner contended that the appointments undermined the constitutional architecture of Kenya’s multiparty democratic system by effectively incorporating key opposition leaders into the Executive, thereby weakening the capacity of the opposition to perform its constitutional role of holding the Government accountable. It was his case that the appointments diluted the oversight function vested in the National Assembly under Article 95(4)(c) and (5) of the Constitution and diminished the effectiveness of democratic checks and balances contemplated by the Constitution.
31. According to the 1st Petitioner, a vibrant, independent and effective opposition is an indispensable component of Kenya’s constitutional democracy and a necessary safeguard for the realization of the national values and principles of governance set out in Article 10(2), including democracy, good governance, integrity, transparency and accountability. He argued that by appointing senior opposition leaders to Cabinet, the President effectively weakened the institutional capacity of the opposition and thereby undermined the multiparty democratic order established under Article 4(2) of the Constitution.
32. In his view, the appointments risked creating a de facto one-party state, contrary to the constitutional design which envisages political pluralism, robust democratic contestation and effective oversight of the Executive. He further asserted that the constitutional values of democracy and good governance are among the matters protected under Article 255(1)(d) of the Constitution and may only be altered through a referendum. Consequently, he maintained that any executive action that substantially erodes the multiparty democratic framework amounts to a violation of the Constitution.
33. The 1st Petitioner further contended that the actions of the President were inconsistent with the obligations imposed upon the President under Articles 2, 3, 10, 73(1)(a)(i), 131(2) and 132 of the Constitution to respect, uphold and safeguard the Constitution. He argued that the nominations and appointments were undertaken without due regard to the constitutional principles of democratic governance and public accountability and were therefore contrary to the public interest.
34. The 1st Petitioner additionally challenged the re-nomination and subsequent reappointment of the 5th to 14th Interested Parties shortly after their dismissal from Cabinet. He argued that the President had publicly justified the dismissal of the Cabinet on grounds relating to governance, accountability, integrity, performance and responsiveness to the concerns of Kenyans. In those circumstances, the decision to reappoint many of the same individuals to Cabinet within a short period of time was, in his view, irrational, inconsistent and contrary to the constitutional principles of leadership and integrity enshrined in Article 73(2)(a) of the Constitution. He further contended that the reappointments were incompatible with the obligation imposed on the President under Articles 129 and 131(2)(a) to exercise executive authority in a manner that is consistent with the purposes and objects of the Constitution and that serves the people of Kenya. Consequently, he maintained that the nominations and appointments of the 1st to 14th Interested Parties were undertaken in disregard of the Constitution, constitutional values and the broader public interest.
2nd- 6th Petitioners’ case
35. In Nairobi Petition No. E389/2024, the 2nd – 6th Petitioners vide an amended Petition dated 30th September 2024 sought the following orders:
a) A declaration that the President has acted in contravention of the Constitution in nominating, appointing and maintaining a Cabinet that does not meet the two-thirds gender requirement under Articles 10 and 27 (8) of the Constitution.
b) A declaration that the National Assembly violated the Constitution by accepting and approving nominees for Cabinet positions when it was clear that it would effectively violate the rule of law and specifically Article 27 (8) of the Constitution.
c) A declaration that since the Cabinet fails the test of legality under Articles 152 (1), 152 (2) and Article 27 (8), as constituted, the Cabinet is in violation of Article 3 (2) and per Article 2 (4) of the Constitution and is invalid.
d) Based on (d) above, any action/decision/policy position/directive/ Gazette notice made by the Cabinet in its corporate state or by the individual Cabinet Secretaries from the date their appointments took effect, that is 7th August 2024 and 20th August 2024, 18th October 2024 and 1st November 2024, 19th December 2024 and 16th January 2025, 26th March 2025 respectively are a nullity in law and of no legal effect.
e) An Order directed at the Secretary to the Cabinet restraining him from whatsoever paying any salaries, emoluments or according any benefits to any person appointed as Cabinet Secretary.
f) A declaration that the President’s nomination of dismissed Cabinet Secretaries for reappointment without providing reasons to the public for their renomination and reappointment was contrary to Article 35 (3) of the Constitution and Section 5 (1) (c) of the Access to Information Act.
g) A declaration that the dismissal of the nine (9) persons listed below as Cabinet Secretaries made them ineligible to be nominated as Cabinet Secretaries on account of the operation of Chapter 6 of the Constitution and specifically Ar
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