The Court of Appeal in Kenya has declined to suspend a High Court ruling that requires the reconstitution of the Cabinet to meet the country's constitutional gender representation thresholds. This decision maintains legal pressure on the government, keeping the mandate active despite the original 120-day compliance window granted by the High Court having lapsed. The ruling is part of an ongoing legal battle over the Cabinet's composition and gender compliance.
The legal dispute centers on a judgment delivered on June 30, 2026, by a three-judge bench consisting of Justices Eric Ogola, Jairus Ngaah, and Stephen Githinji. The bench declared the structure of the Cabinet unconstitutional, finding that male appointees occupied more than two-thirds of the positions, violating the Constitution. The High Court ordered President Ruto to overhaul or adjust the Cabinet appointments to achieve gender parity within 120 days.
At the time of the review, the Cabinet comprised 25 members, featuring 18 men and only 7 women, with female representation at approximately 28%, falling short of the constitutional threshold. According to Article 27(8) of the Constitution, the State must ensure that no more than two-thirds of the members of any elective or appointive public body belong to the same gender. To satisfy this threshold, the court calculated that at least nine out of the 25 Cabinet members must be women.
The judges explicitly defined the relevant scope of the Cabinet under Article 152(1) of the Constitution, which covers the President, Deputy President, Attorney General, and Cabinet Secretaries, while excluding the Secretary to the Cabinet from the mathematical computation. The bench ruled that the Cabinet's composition breached both Articles 27 and 10 of the Constitution. The legal petitions challenging the Cabinet also questioned President Ruto's decision to reappoint former Cabinet Secretaries following the dissolution of the entire Cabinet in July 2024.
Petitioners argued that recycling former officials undermined the justifications for the 2024 shake-up, pointing to public dissatisfaction over integrity and leadership standards. However, the three-judge bench rejected the argument that reappointing past officials was automatically unconstitutional, clarifying that a political dismissal does not permanently bar an individual from holding public office again. The judges held that the text does not prescribe that dismissal under that article creates a permanent or temporary disqualification from future appointments.
The Court of Appeal's decision to refuse interim orders suspending the High Court's directives means the original judgment remains in force. Alongside the ruling on the appeal, judges directed Attorney General Dorcas Oduor to ensure that all court papers concerning the challenge against the Cabinet's composition and gender compliance are properly served. This leaves President Ruto navigating a delicate path between maintaining political stability and enforcing mandatory constitutional compliance.
With the Court of Appeal upholding the High Court's ruling, the government faces continued scrutiny over Cabinet reappointments and broad-based inclusion. The judges' decision emphasizes the executive's discretion in appointments while reaffirming the constitutional obligation to ensure gender parity in public bodies. As the government moves forward, it must balance political considerations with the need to comply with the Constitution.
Key points
- The Court of Appeal has upheld a High Court ruling requiring the Kenyan Cabinet to meet constitutional gender representation thresholds.
- The original 120-day compliance window granted by the High Court has lapsed, maintaining pressure on the government to adjust Cabinet appointments.
- The ruling emphasizes the executive's discretion in appointments while reaffirming the constitutional obligation to ensure gender parity in public bodies.
