[2025] KEHC 6797 (KLR)

Benjamin & 3 others v Presidential Taskforce on Technical Working Group on Gender-Based Violence (GBV) Including Femicide & 55 others (Petition E027 of 2025) [2025] KEHC 6797 (KLR) (19 May 2025) (Ruling)

Neutral citation: [2025] KEHC 6797 (KLR)

Republic of Kenya

In the High Court at Nakuru

Petition E027 of 2025

PN Gichohi, J

May 19, 2025

IN THE MATTER OF: THE ILLEGAL, IRREGULAR AND UNCONSTITUTIONAL ESTABLISHMENT OF PRESIDENTIAL TASKFORCE ON TECHNICAL WORKING GROUP ON GENDER-BASED VIOLENCE (GBV) INCLUDING FEMICIDE THROUGH EXECUTIVE ORDER & GAZETTE NOTICE NO. 109 VOL. CXXVII—NO. 3 9TH JANUARY, 2025 & GAZETTE NOTICE NO 3862 OF 28/3/2025. IN THE MATTER OF: ARTICLES 1, 2, 3 (1), 10, 19, 20, 21, 22, 23,59 (4), 73, 75, 129, 130, 131,132,159,165 (1), (3)(A,B & (D) (I–III)), 201,232 (1&2), 248,249 (1&2),250, 252, 253, 254, 258 (1&2(C),259(1)AND260 OF THE CONSTITUTION(2010) IN THE MATTER OF: ALLEGED VIOLATIONS OR THREATS OF VIOLATIONS OF ARTICLES 1,2 (1,2&4), 3(1),10,59(4),73,74,75[1],129, 131, 132, 159,201,232,248,249,250,254(2&3), 259 AND 260 OF THE CONSTITUTION OF KENYA (2010). IN THE MATTER OF: RULE 4, 10, 11, 13 OF THE CONSTITUTION OF KENYA (SUPERVISORY JURISDICTION AND PROTECTION OF FUNDAMENTAL FREEDOMS)- HIGH COURT PRACTICE AND PROCEDURE RULES 2013). IN THE MATTER OF: NATIONAL GENDER AND EQUALITY COMMISSION ACT CAP7K OF THE LAWS OF KENYA. IN THE MATTER OF: THE CONSTITUTIONAL VALIDITY OF TECHNICAL WORKING GROUP ON GENDER-BASED VIOLENCE (GBV) INCLUDING FEMICIDE THROUGH EXECUTIVE ORDER & GAZETTE NOTICE NO. 109 VOL. CXXVII—NO. 3 OF 9TH JANUARY, 2025 & NO 3862 OF 28/3/2025. IN THE MATTER OF: DOCTRINES OF SUPREMACY OF THE CONSTITUTION OF KENYA, BILL OF RIGHTS, CONSTITUTIONALISM, RULE OF LAW AND LEGITIMATE EXPECTATIONS

Between

Dr Magare-Gikenyi Benjamin

1st Petitioner

Eliud Karanja Matindi

2nd Petitioner

Dishon Keroti Mogire

3rd Petitioner

Philemon Abuga Nyakundi

4th Petitioner

and

Presidential Taskforce on Technical Working Group on Gender-Based Violence (GBV) Including Femicide

1st Respondent

The Hon. Attorney General

2nd Respondent

National Gender and Equality Commission

3rd Respondent

Principal Secretary Gender

4th Respondent

Principal Secretary Internal Security and National Administration

5th Respondent

Principal Secretary Social Protection

6th Respondent

Principal Secretary Diaspora Affairs

7th Respondent

Principal Secretary Tourism

8th Respondent

Principal Secretary Cabinet Affairs

9th Respondent

Principal Secretary Devolution

10th Respondent

Principal Secretary Higher Education and Research

11th Respondent

Principal Secretary Technical Vocational Education and Training

12th Respondent

Solicitor General

13th Respondent

Nancy Baraza

14th Respondent

Dr Ruth Aura Odhiambo

15th Respondent

Mohammed Washala Abdi

16th Respondent

Linah Kilimo

17th Respondent

Dr Edna Ngare Ngeno

18th Respondent

Dr Linda Musumba

19th Respondent

Nobert Talam

20th Respondent

Michael Kariuki

21st Respondent

Charles Ismael Otieno Otiende

22nd Respondent

Diana Christine Nanjala

23rd Respondent

Peter Mwangi Kamau

24th Respondent

Anthony Nzioki

25th Respondent

Surum Ipato Korema

26th Respondent

Anne Ngetich

27th Respondent

Dr Wangu Kanja

28th Respondent

Franklin Wallah

29th Respondent

James Nombi

30th Respondent

Kizito Wangalwa

31st Respondent

Harleen Kaur Jabbal

32nd Respondent

Dr Bashir Isaak

33rd Respondent

Valentine Chepkoech Simei

34th Respondent

Shem Nyakutu

35th Respondent

Janey Leakey

36th Respondent

Beatrice Karwitha

37th Respondent

Lucy Njeri Mwaniki

38th Respondent

Dr Purity Ngina

39th Respondent

Dr Sam Thenya

40th Respondent

Susan Ndanyi

41st Respondent

Antonia N'gabala Sodonon

42nd Respondent

Dr Mercy Karanja

43rd Respondent

Gloria Wawira

44th Respondent

Faith Odhiambo

45th Respondent

Ann Ireri

46th Respondent

Seth Masese

47th Respondent

Mashetti Masinjila

48th Respondent

Dr Tecla Chebet Tum

49th Respondent

Caroline Jerono Kibiwott

50th Respondent

Jessica Achieng Omundo

51st Respondent

Geoffrey Rotich

52nd Respondent

Baldwin Anyiga

53rd Respondent

Rosemary Muriungi

54th Respondent

Kepha Onyiso

55th Respondent

Philomena Loitarengan

56th Respondent

Ruling

1. The Petitioners herein moved this Court vide a Petition dated 5th April, 2025 and simultaneously, they filed a Notice of Motion.

2. This ruling is in regard to the Notice of Motion which is expressed to have been brought under Articles 20, 21, 22, 23(3), 48, 50(1), 159(2)(d), 165, 258 and 259 (1) of the Constitution of Kenya, Rules 3, 4, 8, 10, 11, 13, 15, 18 and 19 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.

3. The Petitioners /Applicants seek the following Orders:-a.Spent.b.Pending the hearing and determination of this Application and the petition, the Honourable Court be pleased to issue a conservatory order suspending presidential Taskforce on Technical Working Group on Gender-Based Violence (GBV) Including Femicide through Executive Order & Gazette Notice No. 109 Vol. CXXVII—no. 3 of 9th January, 2025 or stopping the committee from compiling any report/recommendations or handing over and/or implementation of the recommendation or any actions to do with the report whatsoever.c.Pending the hearing and determination of this Application and petition, this Honourable Court be pleased to issue an interim order directing the Respondents, either by themselves, anyone else acting at their behest, instructions or directions or any other person whosoever, from taking any action whatsoever pursuant to or in reliance on or in fulfilment of any duty or obligation or implementation of Gazette Notice No. 109 Vol. CXXVII-No. 3 of 9th January, 2025 & Gazette Notice No 3862 of 28th March 2025 and/or any other document and or any report/recommendations and/or any subsequent actions and/omissions based on the Presidential Taskforce on Technical Working Group on Gender Based Violence (GBV) Including Femicide through Executive Order & Gazette Notice No. 109 vol. CXXVII-No. 3 of 9th January, 2025 & Gazette Notice No 3862 of 28th March 2025 and/or any other document date of any other date.d.That having granted prayer (b)&(c) above and considering need for expeditious disposal of the petition and in an effort not to defeat the purpose of the petition, this Honourable court is pleased to issue strict priority-based timelines on hearing and determination of this petition that;i.Timelines for respondents filing the responses.ii.Timelines for petitioners filing the submissions (we need only days).iii.Timelines for respondents filing submission.iv.Date for highlighting of submissions (if any) and.v.Judgement date.e.That any other order/modification of my prayers in which this Honourable court may deem fit to grant for purposes of attaining Justice for all Kenyans.f.Costs be provided for.

4. The application is predicated on the grounds on the face of the application and supported by the Affidavit of the 1st Petitioner/ Applicant sworn on 5th April, 2025.

5. He states that the President of the Republic of Kenya formed a Presidential Taskforce on Technical Working Group on Gender-Based Violence (GBV) Including Femicide through Executive Order & Gazette Notice No. 109 Vol. CXXVII-No. 3 of 9th January, 2025, and in doing so, the President usurped the mandate of National Gender and Equality Commission (NGEC) established by Article 59 (4) of the Constitution, as read together with the National Gender and Equality Commission Act Cap 7K of the laws of Kenya and therefore it is unconstitutional ab initio by dint or Article 59(4) as read with Articles 1,2(1,2&4),3(1), 10,73,74,75(1),129, 131, 132, 159,201,232,248,249,250 and 254 (2&3) of the Constitution and National Gender and Equality Commission Act, Cap 7K of the laws of Kenya.

6. It is his case, that the role of the Taskforce is duplicate to the powers and functions of the Commission when one juxtaposes the Terms of Reference (TOR) of the Task Force with the function of the Commissions under Article 59(4) of the Constitution as read with Section 8 of the National Gender and Equality Commission Act Cap 7K (NGEC) of the laws of Kenya.

7. The deponent takes issue with the membership of the taskforce and states that, the Chairperson of the Taskforce, Mrs. Nancy Baraza, the 14th Respondent herein, is the former Deputy Chief Justice who was removed from office for gross misconduct and therefore, having a person of this kind as a Chairperson is a slap on the face of Chapter 6 on Leadership and Integrity.

8. He states that gender issues are constitutionally mandated function of the National Gender Equality Commission and not any Task Force appointed by the Executive or any other person. That it is the Office on NGEC that should provide answers being sought by the impugned Taskforce taking cognizance of Article 201 of the Constitution on the need to have prudent utilization of scarce public financial resources.

9. He therefore states that the Applicants are apprehensive that unless this Court stops the illegal actions and/omissions done by the President and/or Respondents, then constitutional violations will continue against principles of good governance and public money will be lost with no probability of recovering it.

10. He depones that granting the prayers as sought in the interim will preserve the integrity of the Constitution which the Petitioners believe has been violated and is threatened with violation by the impugned actions/omissions.

11. He argues that in the absence of such Orders and in the event the Petition is upheld, great harm would have been done to Constitution, including its purposes, values and principles as set out in Article 10(2) of the Constitution.

12. He reiterates that it is in the interest of justice and the Constitution for the Conservatory Orders to be issued so as to uphold the national values and principles of governance including the rule of law, good governance, accountability and transparency and protection of wastage of public funds.

13. Lastly, he states that it is in the greater public interest that the Orders are issued pending hearing of the Petition.

14. The Hon. Attorney General, appearing for the Respondents, filed Grounds of Opposition dated 12th May, 2025. He opposed the application on the following grounds:-1. The Notice of Motion and Petition are grossly incompetent, vexatious, speculative and an abuse of the court process.2. The President as the Head of State and Government under Article 131 of the Constitution of Kenya 2010, has authority and mandate to take necessary steps and measures to ensure the safety and wellbeing of the citizens of the Republic of Kenya. Therefore, the President has the power and authority to constitute a ‘Taskforce’ if and when need arises.3. The mandate and functions of the Presidential Taskforce on Technical Working Group on Gender Based Violence (GBV)including Femicide in no way usurps or undermines the functions of Kenya National Gender and Equality Commission established under Article 59 of the Constitution of Kenya as the Taskforce was established to identify trends, hotspots and causes contributing to gender-based violence and Femicide which is becoming rampant and a great concern to the nation.4. The establishment of Presidential Taskforce on Technical Working Group on Gender Based Violence (GBV)including Femicide was in line with the authority and mandate under Article 129 of the Constitution of Kenya which states that: “Executive authority shall be exercised in a manner compatible with the principle of service to the people of Kenya, and for their wellbeing and benefit.”5. The professional competence and expertise of the Chairperson cannot be questioned based on her prior acts and/or omissions as her resignation from the office as a Deputy Chief Justice never compromised her competence and professional ability.6. There is no decision or finding from a Court of law and/or tribunal barring the taskforce’s current Chairperson from holding public office and/or performing professional duties in accordance with her training and competence hence she is competent to hold the position as the Chairperson of the taskforce.7. Under Article 23 (3) of the Constitution, conservatory orders are only available when a party is alleging that a fundamental right or freedom in the Bill of Rights has been denied or threatened. The Petitioners herein have not demonstrated that their constitutional rights have been violated and or threatened by the establishment of the taskforce.8. The Application and the Petition do not set out with a reasonable degree of precision the manner in which the Articles of the Constitution mentioned are alleged to be infringed, thus falling short of the threshold set out in the case of Anerita Karimi Njeru VS The Republic (1976-1980) KLR and Mumo Matemo vs Trusted Society of Human Rights Alliance & Others [2003] eKLR where the Court held that Constitutional violations must be pleaded with a reasonable degree of precision to enable the Court to grant the reliefs sought.9. The Application and the Petition do not establish a prima facie case against the Respondents as the Petitioners have failed to adduce sufficient evidence to support their allegations as set out in the case of Raila Odinga & 5 Others v Independent Electoral and Boundaries Commission and 3 others [2013] eKLR.10. In line with Article 21(3) of the Constitution of Kenya, the President as the Chief Executive of the Republic is mandated to address the needs of vulnerable groups within the society and therefore the President acted lawfully by constituting Presidential Taskforce on Technical Working Group on Gender Based Violence (GBV)including Femicide to address the issue of gender-based violence and Femicide which is now rampant in the Nation.11. The Petitioners have not demonstrated that the substratum of the Petition will be rendered nugatory if the conservatory reliefs sought are not granted. Therefore, the Notice of Motion Application is bereft of merit and the same should be dismissed with costs.

Determination 15. After considering the Notice of Motion and the response thereto, the only issue for determination herein is whether the prayer for Conservatory Orders should be granted.

16. A Conservatory Order is a constitutional relief specifically provided for under Article 23(3)(c) of the Constitution and issuance of the same is discretionary.

17. The principles to be considered before a Court can grant a Conservatory Order have been settled by the Supreme Court decision of Munya v Kithinji & 2 others [2014] KESC 30 (KLR) where the Apex Court stated:-“7. Conservatory orders bare a more decided public-law connotation: for they are orders that facilitate orderly functioning within public agencies, as well as uphold the adjudicatory authority of the Court in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues like “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the applicant’s case for orders of stay.8. Conservatory orders ought to be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.9. The principles to be considered before a Court of law can grant orders of stay of execution are, that the Appellant, or intending appellant, has to satisfy the Court that:i.the Appeal or intended appeal is arguable and not frivolous; and thatii.unless the order of stay sought is granted, the Appeal or intended appeal, were it eventually to succeed, will have been rendered nugatory.10. In addition to those conditions of granting an order of stay of execution, the courts ought to consider the condition whether it would be in public interest that the order of stay be granted. This was due to the dictates of the expanded scope of Bill of Rights and the Public spiritedness that ran through the Constitution of Kenya, 2010. ” [Emphasis added]

18. The Applicants state that there is duplication of roles between the appointed Technical Working Group on GBV and Femicide as expressed in its Terms of Reference and the functions performed by The National Gender and Equality Commission as provided for under Article 59(4) of the Constitution as read with Section 8 of the National Gender and Equality Commission Act.

19. The Applicants elaborate that gender issues are constitutionally mandated functions of the NGEC and not any task force appointed by the executive or any other person, rather the Office on NGEC should provide answers being sought by the impugned Taskforce taking cognizance of Article 201 of the Constitution on the need to have prudent utilization of scarce public financial resources.

20. It is noted that the Kenya Gazette Notice No. 109 Vol. CXXVII No. 3 of 9th January, 2025, established a Technical Working Group (TWG) to address Gender- based violence (GBV) and Femicide. The Terms of Reference for the Technical Task-Force as gazetted are to:-a.Identify trends, hotspots, and causes contributing to GBV and Femicide.b.Analyse the adequacy of current legal and policy frameworks in addressing GBV and Femicide.c.Propose amendments to strengthen laws, improve enforcement, and close existing legislative gaps.d.Evaluate resource allocation, training levels, and operational effectiveness in managing prevention, response, support and investigations related to cases on GBV and Femicide.e.Conduct community engagements to gather input on solutions to combat GBV and Femicide.f.Provide action able recommendations on prevention, investigation, prosecution, and survivor support mechanisms in GBV and Femicide cases.g.Examine the role of social media coverage in GBV and Femicide, including its influence on public perception, awareness, and policy making.h.Identify psychological issues related to the commission of crimes associated with GBV and Femicide.i.Establish socioeconomic challenges contributing and exacerbating to the commission of GBV and Femicide. And,j.Recommend proposals to strengthen family ties, foster harmonious co-existence among family members, and develop social structures that support the resolution of domestic disputes.

21. On the other hand, the function of NGEC as per Section 8 of The National Gender and Equality Commission Act, 2011 is to:-a.Promote gender equality and freedom from discrimination in accordance with Article 27 of the Constitution.b.Monitor, facilitate and advise on the integration of the principles of equality and freedom from discrimination in all national and county policies, laws, and administrative regulations in all public and private institutions.c.Act as the principal organ of the State in ensuring compliance with all treaties and conventions ratified by Kenya relating to issues of equality and freedom from discrimination and relating to special interest groups including minorities and marginalized persons, women, persons with disabilities, and children.d.Co-ordinate and facilitate mainstreaming of issues of gender, persons with disability and other marginalized groups in national development and to advise the Government on all aspects thereof.e.Monitor, facilitate and advise on the development of affirmative action implementation policies as contemplated in the Constitution.f.Investigate on its own initiative or on the basis of complaints, any matter in respect of any violations of the principle of equality and freedom from discrimination and make recommendations for the improvement of the functioning of the institutions concerned.g.Work with other relevant institutions in the development of standards for the implementation of policies for the progressive realisation of the economic and social rights specified in Article 43 of the Constitution and other written laws.h.Co-ordinate and advise on public education programmes for the creation of a culture of respect for the principles of equality and freedom from discrimination.i.Conduct and co-ordinate research activities on matters relating to equality and freedom from discrimination as contemplated under Article 27 of the Constitution.j.Receive and evaluate annual reports on progress made by public institutions and other sectors on compliance with constitutional and statutory requirements on the implementation of the principles of equality and freedom from discrimination.k.Work with the National Commission on Human Rights, the Commission on Administrative Justice and other related institutions to ensure efficiency, effectiveness and complementarity in their activities and to establish mechanisms for referrals and collaboration in the protection and promotion of rights related to the principle of equality and freedom from discrimination.l.Prepare and submit annual reports to Parliament on the status of implementation of its obligations under this Act.m.Conduct audits on the status of special interest groups including minorities, marginalized groups, persons with disability, women, youth and children.n.Establish, consistent with data protection legislation, databases on issues relating to equality and freedom from discrimination for different affected interest groups and produce periodic reports for national, regional and international reporting on progress in the realization of equality and freedom from discrimination for these interest groups.o.Perform such other functions as the Commission may consider necessary for the promotion of the principle of equality and freedom from discrimination; and.p.Perform such other functions as may be prescribed by the Constitution and any other written law.

22. From the roles enumerated above, the Task Force is temporary and issue-specific. It focuses exclusively on GBV and Femicide, analysing trends, legal frameworks, enforcement gaps, and societal factors that contribute to these crimes. Its purpose is to provide actionable recommendations for prevention, investigation, prosecution, and survivor support.

23. It may appear as though there is some duplication of some roles but what is critical here is that the Task Force was appointed and gazetted on 9th January, 2025. It was required to submit its report within 90 days from the date of that Gazettement.

24. It is noted that though, the Gazette Notice allowed for the extension of their tenure, the same is subject to a further Gazette Notice. However, the duration of such extension was not indicated and neither has this Court been supplied with a Gazette Notice (if any) extending the tenure of the said Task Force.

25. Further, the Gazette Notice No 3862 of 28th March 2025 only appointed Dr. Tecla Chebet Tum as member of the Technical Working Group and no extension of time thereof was mentioned.

26. The Task Force ought to have completed its work and reported to the President as instructed going by the deadline therein.

27. In the circumstances, the Conservatory Orders sought herein in regard to the Presidential Taskforce on Technical Working Group on Gender-Based Violence (GBV) including Femicide through Executive Order & Gazette Notice No. 109 Vol. CXXVII—No. 3 of 9th January, 2025 are unavailable.

28. In conclusion:-1. The Petitioners/ Applicants’ Notice of Motion dated 5th April, 2025 is without merit and therefore dismissed.2. No orders as to costs.

DATED, DELIVERED AND SIGNED AT NAKURU THIS 19TH DAY OF MAY, 2025. PATRICIA GICHOHIJUDGEIn the presence of:N/A for 1st PetitionerN/A for 2nd PetitionerMs Wainaina for RespondentsNg’eno, Court Assistant