Three petitioners, among them Busia Senator Okiya Omtatah, now want the High Court to suspend the Cabinet, accusing President William Ruto’s administration of defying a court order requiring the executive to comply with the constitutional two-thirds gender rule.
Omtatah, alongside activist Eliud Karanja Matindi and Dr Magare Gikenyi Benjamin, has filed an urgent application seeking conservatory orders barring 25 members of the national executive from exercising their powers pending the hearing and determination of their petition.
The petitioners argue that the national executive is unlawfully constituted following the government’s failure to comply with a June 30, High Court judgment directing the President to reconstitute the Cabinet in accordance with Article 27(8) of the Constitution.
The provision requires that no more than two-thirds of members of appointive bodies be of the same gender.
In its June 30 judgment, delivered by a three-judge bench in a case filed by Ole Kanchory and 10 others, the High Court declared the Cabinet unconstitutional on account of its gender composition.
The court established that only seven of the 25 members of the national executive were women, representing approximately 28 per cent, and directed the appointing authority to address the imbalance within 120 days.
However, the petitioners contend that the deadline expired without the President taking steps to comply with the court’s directive.
They accuse the Head of State, together with the affected Cabinet members, of disregarding the court order while continuing to exercise executive and statutory powers.
In their application, the three want the court to prohibit the affected officials from holding themselves out as members of the national executive and exercising any constitutional or statutory powers attached to their offices.
They also seek to suspend Executive Order No. 1 of 2025, but only to the extent that it assigns responsibility for implementing and administering Acts of Parliament to the 2nd–26th respondents, on the basis that those assignments lapsed when the officials ceased to hold Cabinet office.
Additionally, they want the Controller of Budget restrained from approving withdrawals of public funds to facilitate the payment of salaries and benefits to the affected officials.
In the petition, Omtatah and his co-petitioners want the court to declare that the President failed to comply with the June 30 judgment and that the country currently has no constitutionally constituted national executive.
They are further seeking declarations that decisions made by the Cabinet after the expiry of the court-imposed deadline are invalid.
The petitioners also want the affected officials declared unfit to hold public office and ordered to refund salaries and benefits received since June 30, 2026.
The petitioners have cited Kenya Gazette notices published on October 30, 2026, arguing that they demonstrate that Cabinet Secretaries have continued exercising their statutory mandates despite the court’s orders.
Among the notices cited are those signed by National Treasury Cabinet Secretary John Mbadi, Health Cabinet Secretary Aden Duale, Agriculture Cabinet Secretary Mutahi Kagwe and Gender Cabinet Secretary Hanna Wendot Cheptumo.
The petitioners ground their case on several constitutional provisions, including Articles 1, 2, 3, 10, 27, 73, 75, 129, 131, 152 and 232, arguing that the President has a constitutional obligation to respect, uphold and safeguard the Constitution.
They have also relied on a 2015 Court of Appeal decision in Attorney General & another v Coalition for Reform and Democracy, arguing that the need to protect the Constitution outweighs competing public-interest considerations when granting conservatory orders.
The application names the Attorney-General, Deputy President Kithure Kindiki, Prime Cabinet Secretary Musalia Mudavadi and the Cabinet Secretaries among the respondents.
Several organisations, including Katiba Institute, the Kenya Human Rights Commission, the Law Society of Kenya and Transparency International Kenya, have been listed as interested parties.
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