https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7700

Konchella & 10 others v Chief Justice & President of the Supreme Court of Kenya & 16 others (Constitutional Petition 291 of 2020 & Petition 228, 229, 300, E302, E305, E314, E317 & E337 of 2020 & Judicial Review 1108 of 2020 (Consolidated)) [2026] KEHC 7700 (KLR) (5 June 2026) (Judgment) Neutral citation: [2026] KEHC 7700 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional Petition 291 of 2020 & Petition 228, 229, 300, E302, E305, E314, E317 & E337 of 2020 & Judicial Review 1108 of 2020 (Consolidated) J Ngaah, PM Nyaundi, LN Mugambi, MO Ado & TW Ouya, JJ June 5, 2026 Between Leina Konchella 1st Petitioner Mohsen Abdul Munasar 2nd Petitioner Nthatu Ntoogo 3rd Petitioner Claire Amdany 4th Petitioner Emmanuel Mukwana 5th Petitioner Thirdway Alliance 6th Petitioner Antony Tom Oluoch 7th Petitioner Edwin Kimatu Saluny 8th Petitioner Centre For Rights Education & Awareness 9th Petitioner Community Advocacy & Awareness Trust 10th Petitioner Adrian Kamotho Njenga 11th Petitioner and The Chief Justice & President Of The Supreme Court Of Kenya 1st Respondent The Attorney General 2nd Respondent Speaker Of The National Assembly 3rd Respondent Speaker Of The Senate 4th Respondent Hon Justice David Kenani Maraga 5th Respondent and Margret Toili 1st Interested Party Independent Electoral & Boundaries Commission 2nd Interested Party Law Society Of Kenya 3rd Interested Party Fredrick Gichanga Mbugua 4th Interested Party Stephen Owoko 5th Interested Party John Wangai 6th Interested Party Aoko Benard 7th Interested Party David Sudi 8th Interested Party Okiya Omtata 9th Interested Party Parliamnetary Service Commission 10th Interested Party Federation Of Women Lawyers-Kenya 11th Interested Party Kenya National Commission on Human Rights 12th Interested Party Judgment 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 inGachagua & 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 Constitution. The existence of a Parliament is pegged on the election of members to both Houses and, therefore, without the members, there is no Parliament. 27.They state further that Article 93 of the Constitution provides that the established Parliament consists of the National Assembly and the Senate and that the two Houses of Parliament perform their respective functions in accordance with the Constitution as provided in Article 93 (2) thereof.By dint of Article 94, the legislative authority of the Republic is derived from the people and, at the national level, is vested in and exercised by Parliament which manifests the diversity of the nation, represents the will of the people, and exercises their sovereignty for the duration of the term in line with the provisions of Article 1 (1) (2) and (3(a)) of the Constitution. 28.The term of each Parliament ends with each successive election and all Bills, Order Papers and such other functions that were to be discharged by the outgoing Parliament lapse with that term. Consequently, the Orders directed at the 11th Parliament in the Centre for Rights and Awareness & 2 Others v Speaker of the National Assembly and 6 Others case could not be enforced against the 12th Parliament and its membership. If that were the case, it would have been tantamount to imposing on the 12th Parliament, constitutional obligations that it did not have the opportunity to seek the agency of the people and adequately debate on the same. 29.In addition to the fact that the High Court Order was not directed at the 12th Parliament, it is averred that the Chief Justice failed to take into account the numerous attempts by Parliament towards enacting the two-thirds principle legislation. It is a matter of judicial notice that Parliament had debated 11 motions in the previous nine (9) years prior to the Advisory on the two-thirds principle and despite all those efforts, none of the proposed Bills had passed. 30.The Petitioners are aggrieved by the Chief Justice’s decision for ignoring these efforts and, in their view, his advice to the President was a grave error and a misapprehension of the provisions in Article 261(7) as read with the values, principles and spirit of the Constitution. It is their position that the Chief Justice took a rather mechanical reading of Article 261 (7) and failed to internalise the intertwined principles set out in the entire body of the Constitution. 31.It is contended that if Parliament was dissolved as was then advised by the Chief Justice, there would be a situation of anarchy in the sense that; no Bills generated by either the executive or by private member Bills could pass and or be enacted into law; the rest of the arms of government, that is, the Executive and the Judiciary could not have been able to expend public monies drawn from the Consolidated Fund without the authority of Parliament as commanded by the Constitution under Article 206; and, the County Governments would have come to a complete halt yet the Parliament was then debating the “Third Generation Formula” on allocation of revenue to the 47 County Governments that was then being subjected to public participation. County Governments would have failed to govern and provide essential services to the people, including critical lifesaving medical services. 32.The petitioners have also pleaded that if Parliament was to be dissolved, the Independent Electoral and Boundaries Commission would not have been able to conduct lawful elections because it had only 3 Commissioners against the quorum of 5 prescribed under the Act when the Chief Justice advised the President to dissolve Parliament.The dissolution of Parliament would have created a vacuum in the governance of the nation as there was no clear framework on when and how the elections would be held after the dissolution of the Parliament considering that there was no budgetary allocation for conduct of elections that would have ensued. 33.The Chief Justice is also alleged to have misapprehended the Supreme Court’s Advisory in Advisory Opinion No. 2 of 2012; In the Matter of the Principle of Gender Representation in the National Assembly and the Senate (2012)eKLR by misconstruing the word "shall" as applied in the context of Article 81(b) of the Constitution. According to the petitioners, contrary to the Chief Justice’s interpretation of the word “shall” to mean mandatory obligation, the Supreme Court interpreted it to mean that it did not call for immediate action particularly where several agencies are tasked with performing a particular duty. 34.Following the Supreme Court’s interpretation of the word “shall”, Parliament had undertaken a progressive realisation approach and developed policies and put in place measures towards the attainment of the two-third gender principle. This was demonstrated through the numerous Bills presented for debate in Parliament which ultimately culminated in the Representation of Special Interest Groups (Amendment) Bill 2019 which was then pending in Parliament. 35.According to Article 27(6), the obligation is on the state to take such legislative and other measures as are necessary, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination in order to give full effect to the realization of the rights guaranteed under this particular Article. Article 81(b) goes further to provide the principles to be complied with in the electoral system one of which is the principle that "not more than two thirds of the members of elective public bodies shall be of the same gender". 36.It is the Speakers’ position that the totality of elective bodies in the Kenyan Constitutional context is comprised of the National Assembly and Senate both referred to as the Parliament and the County Governments. The composition of both Houses of Parliament is capped off under Articles 97 and 98 of the Constitution. Article 97(1) caps off the composition of the National Assembly. Similarly, Article 98(1) caps off, the composition of the Senate. 37.Unlike the membership of the National Assembly and the Senate, Article 177 on the membership of the County Assemblies has an elaborate measure to facilitate the compliance with the two-thirds gender rule. Article 177 (3) provides that in addition to the elected members of the County Assemblies, there are special seats that shall be filled after the declaration of the elected members. The filling of these positions after the elections allows for parties to nominate such number of women as shall be required to meet the two-thirds gender rule. 38.The petitioners acknowledge that under Article 100 of the Constitution, Parliament is to enact legislation that will promote the representation of women, persons with disability, youth, ethnic minorities and marginalized communities. However, in as much as the Constitution envisages a wider representation in Parliament, given the democratic process that produces the elective members, there is no guarantee that the number of nominated persons by the political parties will ensure the attainment of at least one-third of the members in each House. 39.The terms of both Houses of Parliament is also limited by Article 102 according to which the term for each House of Parliament expires on the date of the next general election. Under Article 101, the Election of members of Parliament is to be held on the second Tuesday in August in every fifth year. 40.The petitioners contend that Article 81(b) under which the two-thirds principle is provided should not be read in isolation in the context of the wider constitutional architecture and can only be enforced in harmony with other provisions of the Constitution and implemented in all public elective bodies including the National Assembly, the Senate, or County Assemblies. 41.The prescriptive principle found in Article 27 (6) and (8) is that the state shall take legislative and other measures to remedy any disadvantage suffered by any special group. The "legislative measures" do not necessarily envisage enactment of a specific law and further, the petitioners aver that Parliament has passed various laws cumulatively removing hurdles faced by women in the enjoyment of political rights and, therefore, enabling the realization of the two-thirds gender rule such as the Elections Act, Independent Electoral and Boundaries Commission Act, Campaign Financing Act, and National Government Affirmative Action Fund Regulations to empower women, the youth and persons with disability. 42.Ostensibly, such measures can only be taken in stages and over time as a calculated and harmonized state action. The measures specifically referred to in Article 27 (6) entail the enactment of legislation to ensure that no more than two thirds of the same gender shall constitute elective public bodies. According to the petitioners, the enactment of a legislation is not a singular action that can be discharged promptly upon command by Parliament. To the contrary, legislation making is a process that entails the creation of a legislative road map, proposals, drafting of the laws by the State Law Office and, ultimately, an engagement of the citizenry under a public participation scheme through which the citizens views are gathered. The last action on this measure is the debate and voting process that takes place in Parliament. 43.The Speakers of the Houses of Parliament have also pleaded that it is imperative to note that over the last decade, Parliament has debated a number of legislations geared towards the implementation of the two-thirds gender principle. The first attempt at legislating the two-thirds rule was commenced after the extension by National Assembly of the Constitutional timelines for passing the laws listed under Schedule 5 to the Constitution for a period of twelve months. 44.The initiatives undertaken by the 11th Parliament are stated to have been as follows:a.The first initiative was manifested by the Constitution of Kenya (Amendment) Bill 2011 sponsored by the Late Honourable Mutula Kilonzo. This Bill sought to give effect to Article 27 and 81(b) by introducing new paragraphs in Article s 97 and 98 to the effect that the filing of the special seats be determined after the declaration of elected members from each constituency. This Bill lapsed at the end of the term of the 10th Parliament.b.In 2015, a renewed desire to implement the two-thirds gender rule was triggered through the Bill proposed by the Honourable Samuel Chepkong'a- the Constitution of Kenya (Amendment) Bill No. 3 of 2015 which sought to amend Article 81 to facilitate the progressive implementation of the two-thirds rule. This Bill was read in 2015 and debated during the second reading on 25th and 26th October 2016. The Bill lapsed at the end of the term of Parliament in 2017.c.In 2015, the Honourable Aden Duale proposed the Constitution of Kenya (Amendment) Bill No. 4 of 2015 which proposed to amend Article 81, 90, 97, 98 and 177 to enable the creation of special seats that would give effect to the principle being realized in Parliament for a period of Twenty years. The Bill failed to obtain the required constitutional support and was lost in the second reading.d.Another attempt in 2015 was through the Constitution of Kenya (Amendment) Bill No. 6 of 2015 proposed by the Honourable Aden Duale. This Bill sought to amend Article 90, 97 and 98 to give effect to the two-thirds principle and to impose a two-term limit for a person elected to Parliament or County Assembly. Additionally, the Bill also sought to create special seats to be determined after the general elections to ensure that the two-thirds principle is realized in Parliament. The Bill was read on 17th December 2015 and lapsed at the end of the term of the Parliament.e.The fifth initiative was through the Elections Laws (Amendment) No.3 Bill of 2015) also proposed by the Honourable Aden Duale. This Bill was prepared pursuant to the Advisory Opinion of the Supreme Court in the Matter of the Principle of Gender Representation of Article 27 and 81 (b) of the Constitution. This Bill was anchored on the enactment of the Constitution of Kenya (Amendment) Bill No. 4 of 2015 which was lost at the second reading.f.Another intervention came through the Election Laws (Amendment) Bill No. 2 of 2015 sponsored by the Honourable Aden Duale. This Bill sought to incrementally achieve the two thirds rule by imposing a sanctions and reward system for political parties in order to motivate them to meet the two-thirds threshold. This Bill also sought to strengthen the institutional framework for monitoring the implementation of the equality principles of the Constitution. This Bill was read in the National Assembly in October 2015 but lapsed at the end of the term of Parliament.g.The Two-Third Gender Rule Laws (Amendment) Bill, 2015 proposed by the Honourable Samuel Chepkong'a sought to give effect to Article 100 of the Constitution and amend the Elections Act, Political Parties Act and the Independent Electoral and Boundaries Commission Act and the National Gender and Equality Commission Act. It specifically sought to expand the mandate of the IEBC in operationalizing the provisions of Article 100 of the Constitution. The Bill was read in 2015 but lapsed at the end of the term of Parliament.h.Yet another legislative proposal was tabled by the Honourable Judith Sijeny through the Constitutional of Kenya (Amendment) Bill No. 16 of 2015 at the Senate. This Bill similarly sought to Amend Article s 90(1) 97 and 98 of the Constitution and intended to have the number of special seats determined after the declaration of the members elected in general elections. It also proposed to have the affirmative action provisions to be reviewed after Twenty years. This Bill made to its third reading but was deferred pending determination on whether Article 255 of the Constitution applied to the Bill.i.The Political Parties (Amendment) Bill 2016 proposed by the Honourable Samuel Chepkong'a was passed by the National Assembly after referral from the Senate and was assented to in June 2016. The Bill required political parties to have special interest groups in their membership.j.The Constitution of Kenya (Amendment) Bill No. 4 of 2018 proposed by the Honourable Aden Duale sought to create special seats that would ensure that the two-thirds principle is realized over a period of Twenty years from the date of the next general elections. This Bill failed at the second reading as it failed to garner the threshold required to pass a motion.k.The Representation of Special Interest Groups (Amendment) Bill 2019 proposed by the Honourable Aden Duale was passed by the National Assembly in March 2020 and forwarded to the Senate for consideration as the Bill touched on County Governments. The same is still pending in Senate.I.The Constitution of Kenya (Amendment) Bill 2019 proposed by Honourable G. B. Shollei proposing the amendment of Article 97 to increase the number of elected women, members of the National Assembly from forty seven to one hundred and thirty six and further an amendment to Article 98 to provide for the election of two members of Senate of each gender by the electorate in the counties. 45.The Petitioners have averred that the passing of the above Bills was subject to them meeting the constitutional threshold set under Article 122(1) as read together with Article 121 of the Constitution to have the motion pass in Parliament by a simple majority of members in that House. 46.Article 122 (1) which provides that any question proposed for decision in Parliament is subject to a majority vote takes into account that each individual member of Parliament has a say on behalf of their constituents and that in such a vote, a division of opinion is inevitable. 47.Since the essence of our Constitutional democracy is such that the majority carries the day, it would, therefore, be unfair to adjudge that the failure to whip the requisite majority vote in the passing of the Bill amounts to a wilful refusal to enact the two-thirds principle legislation. 48.The Petitioners aver further that had the Bills listed above garnered the requisite votes in Parliament, they would have been enacted into law and enforced as such. As at the time the instant petition was filed, the Representation of Special Interest Groups Laws (Amendment) Bill 2019 was pending before the Senate. 49.The 12th Parliament had also undertaken initiatives of its own meant to realise the two-thirds principle through the following efforts:“a.The Constitution of Kenya (Amendment) Bill No. 4 of 2018 proposed by the Honourable Aden Duale sought to create special seats that would ensure that the two-thirds principle is realized over a period of Twenty years from the date of the next general elections. This Bill failed at the second reading as it failed to garner the threshold required to pass a motion.b.The Constitution of Kenya (Amendment) Bill 2019 proposed by Honourable G. B. Shollei proposing the amendment of Article 97 to increase the number of elected women, members of the National Assembly from forty seven to one hundred and thirty six and further an amendment to Article 98 to provide for the election of two members of Senate of each gender by the electorate in the counties.c.Lastly, the Representation of Special Interest Groups (Amendment) Bill 2019 proposed by the Honourable Aden Duale was passed by the National Assembly in March 2020 and forwarded to the Senate for consideration as the Bill touched on County Governments. The same is still pending in Senate.In view of these efforts, it is contended that the Advisory Letter sought to interfere with an ongoing legislative process, inter alia:a.contrary to Article 94 (5) of the Constitution which provides that "No person or body, other than Parliament, has the power to make provision having the force of law in Kenya except under authority conferred by this Constitution or by legislation.b.Article 117 (1) provides that "There shall be freedom of speech and debate in Parliament". In this regard, Parliament has immunity with respect to its decisions and proceedings. This Article is also echoed in the National Assembly (Privileges and Immunities) Act.” 50.The petitioners have contended that the decision by the Chief Justice in advising the President of the Republic of Kenya also pre-empted the outcome of two consolidated petitions that were then pending for determination; these petitions are the Constitutional Petition No.397 of 2017; Centre for Rights Education and Awareness (CREAW) and Another versus Speaker of National Assembly and 2 Others, and Constitutional Petition No. 401 of 2017; Federation of Women Lawyers in Kenya versus of Speaker of the National Assembly and 4 Others. 51.The Speakers of the two Houses denied the Chief Justice’s claims that they failed to keep him updated on their efforts to enact the relevant legislation. According to them, Courts had always been updated on what Parliament was doing with regards to the progress made towards the enactment of the legislation in question. 52.It is also contended that in Constitutional Petition No. 19 of 2017; Katiba Institute vs. Independent Electoral Commission, Chacha Mwita, J. (as he then was) apportioned the burden of resolving the two-thirds gender principle on political parties and the Independent Electoral and Boundaries Commission. 53.The Petitioners aver that the enactment of the legislation cannot be realized overnight but progress has been made towards the realization of the same as evidenced by the twelve Bills tabled in Parliament for debate. The mere existence of these Bills and ensuing debates, is sufficient demonstration that Parliament had the motive and intention of realizing the provision of Article 81 of the Constitution on the two thirds gender rule. 54.The petitioners invoked the dissenting opinion of the former Chief Justice Willy Mutunga, In the Matter of the Principle of Gender Representation in the National Assembly and the Senate (2012) eKLR where the learned judge remarked that the Constitution presented the courts with inconsistencies, grey areas, contradictions, vagueness, bad grammar and syntax, legal jargon, which represented hallmarks of a negotiated document that took decades to complete. 55.In light of these challenges, the two Speakers aver that the Courts cannot make a definitive and absolute determinative finding but needed to harmonize these competing and contesting provisions through the application of the constitutional doctrine of proportionality. 56.It is contended that in his Advisory, the Chief Justice faulted the decision making process of Parliament; and, even assuming the orders were directed at the 11th Parliament could be enforced against the 12th Parliament, the Chief Justice misconstrued the lack of consensus as an act of wilful refusal to enact the legislation issue. 57.The provisions under Article 122 of the Constitution are very categorical in the manner in which decisions should be arrived at. It provides “...any question proposed for decision in either House of Parliament shall be determined by a majority of the members in the House, present and voting."The Chief Justice could not, therefore, arm twist the members of Parliament into casting votes in a specific way and pass Bills in a manner that took away their representative capacity. 58.The petitioners have reiterated that both Houses of Parliament have made attempts to enact the legislation under Article 100 and the Fifth schedule to the Constitution on promotion of representation of marginalized groups and that this Honourable Court should take judicial notice of the fact that, at the time of filing the Parliament’s petition, there was a Bill pending before the Senate known as The Representation of Special Interest Groups (Amendment) Bill 2019 which was passed by the National Assembly in March 2020 and forwarded to the Senate for consideration as the Bill touched on County Governments. 59.The Petitioners also contend that the legislation anticipated under the Fifth Schedule only pertain to Article 100 and the same do does not make any reference to Articles 27 and 81. This Honourable Court is asked to read the Constitution in its entirety and not uphold the selective and mechanical reading exercised by the Chief Justice in his advice to the President of the Republic of Kenya. 60.The petitioners have pleaded that Article 261 (8) provides that "If Parliament has been dissolved under clause (7), the new parliament shall enact the required legislation within the periods specified in the Fifth Schedule beginning with the date of commencement of the term of the new Parliament." 61.Further, under Article 261 (9) provides that "....if the new parliament fails to enact the legislation in accordance with the Clause (8) the Provisions of clauses (1) to (8) shall apply afresh." Accordingly, it is apparent that the Constitution treats every new Parliament as one that has a tenure of its own. 62.It is also contended that Article 261(8) categorically uses the words "if Parliament is dissolved" signifying that the President does not have to dissolve Parliament upon the advice of the Chief Justice. The same signifies that the President can exercise his discretion in light of his powers under Article 131(2)(a), (b), (c), (d) and (e) of the Constitution. And under Article 261 (7) & (8) each Parliament has the period stipulated in the Fifth schedule commencing with their new term. Accordingly, the Advisory was flawed as it alleged that the 12th Parliament disregarded four court orders and had failed to enact the requisite legislation for over 9 years yet its term had commenced on 28 August 2017. 63.The 12th Parliament, having a five year term running from August, 2017 to August 2022, was left with approximately two years within which to enact the legislations under the Fifth Schedule with the option of the National Assembly extending the Period prescribed by an additional one year as per Article 261 (2) of the Constitution. 64.Articles 47 and 50(1) of the Constitution of Kenya expressly provide for the right to fair administrative action and fair hearing respectively. According to the Speakers, by issuing summons to them requesting a report pursuant to Article 261(6)(b), the Chief Justice was exercising a duality of functions, that is, both judicial and administrative functions. 65.The Speakers of the two Houses responded informing the Chief Justice that they had made various efforts to enact the two third gender rule legislation and, as at the time they responded, the Representation of Special interest groups Laws (Amendment) Bill, 2019 was pending before Parliament. They also requested for more time to enact the law. 66.The Chief Justice is alleged to have acted contrary to the provisions of Articles 47 and 50 (1) of the Constitution, when he elected to disregard the representations made on behalf of the two Speakers and that this constituted a violation of their rights in the sense that they had a legitimate expectation to be heard on the merits of their case and have a fair determination thereof. 67.The Petitioners also contend that the Advisory to the President to have the Parliament dissolved was aimed at abrogating the political rights enshrined under Article 38 of the Constitution. The people exercised their sovereign right and elected the Members of Parliament as their representatives for a specific term of 5 years. They also pleaded that, for all intents and purposes, the Advisory was calculated to overlook the right of the people and deny them their sovereign power which is exercised either directly or indirectly through their elected representatives in Parliament. The Chief Justice is said to have acted ultra vires and contravened the principle of Separation of Powers and the role the three arms of government in the Advisory to the President. 68.According to the petitioners, the Advisory is an affront to the democratic right and free-will the Members exercise on behalf of their constituents. Further, Parliament is endowed with certain powers, privileges and immunities in accordance with Article 117 of the Constitution in exercise of their Constitutional mandate. 69.The National Assembly's standing orders, it is contended, are clear and elaborate in the manner in which Bills and Amendments are passed. Standing Order No. 34 provides for the required quorum of the House, while Standing Order No. 62 provides for the Ayes and Nays as the manner in which members express their approval or dissatisfaction to a Bill. Standing Order No. 76(1), in particular, provides for the obligation to vote and clearly provides that "no member shall be obligated to vote in a division, but those present but not voting shall record their abstention with the clerk." 70.In these circumstances, it is contended that it is improper for the Chief Justice to suggest that the outcome of the debate and voting process on the Bills should be predetermined instead of being a fair and independent representation of the democratic free-will. The outcome on any vote on a Bill cannot be anticipated and members cannot be compelled to vote in any particular way. 71.The pleadings by the rest of the petitioners seeking to impeach the Advisory are, more or less, along similar lines as the pleadings by the petitioners in petition no. 300 of 2020. The variations, if any, are , in our humble view, not material and, as far as we can gather, the differences are only in the breadth of what has already been pleaded by the petitioners in petition no. 300 of 2020 as the constitutional and legal grounds against the impugned Advisory. 72.It would be unnecessary, in these circumstances, to lay out in detail what each of the rest of the petitioners have pleaded in their respective petitions as that would only serve to repeat what has been stated in the foregoing paragraphs as the petitioner’s case against the Advisory. What we can do, however, is to single out from the rest of the petitioners’ pleadings any grounds against the Advisory but which, hitherto, have not been covered or covered in greater detail by the petitioners in petition no. 300 of 2020. 73.The petitioners in petition no. 291 of 2020, for instance, have averred that the Chief Justice’s role under Articles 261 (6) (b) and 261 (7) of the Constitution are administrative in nature and not judicial; a fact that is buttressed by the terms in which the Advisory was couched. It is contended that the Supreme Court is not seized of the jurisdiction to determine petitions with which the Chief Justice was presented and upon which he acted in his advice to the President. 74.The Chief Justice is accused of being guilty of laches, unreasonable delay and that by his advice, he demonstrated failure to act in the discharge and exercise of his duty, role and function under Article s 261 (6) (b) and 261 (7) of the Constitution of Kenya 2010 because;“a.He acknowledged that he only acted upon receipt of petitionsb.The Supreme Court in 2015 gave its Advisory Opinion in the Matter of The Principle of Gender Representation In The National Assembly and the Senate [2012] eKLR requiring enactment of legislation to give effect to Article 100 of the Constitution of Kenya 2010 by 27th August 2015c.His Advisory suggested that the reason for the Advisory was the lack of Responses to his June 2019 letters to the 2nd Respondent, 1st and 2nd Interested Partiesd.Administrative action should be taken expeditiously and efficiently.” 75.It is the petitioners’ contention that that administrative action should be lawful, reasonable and procedurally fair; the Advisory fell short of these requirements thereby exposing the petitioners, and the public in general, to “injury”. 76.Further, Articles 97 and 98 of the Constitution provide for the composition of the National Assembly and Senate respectively and, therefore, the enactment of the legislation in issue is impracticable without first amending the Constitution. In any event, the two thirds gender rule is not about women only and construing Article 27 (3) and 27 (8) as requiring creation of more seats in Parliament for women is itself discriminatory and a violation of these very Articles. 77.Dissolution of Parliament under Article 261, it is contended, would do more harm to the realization of the two thirds objective because such a dissolution would trigger the provision of Article 261(8), according to which the new Parliament would have five years beginning from the date of commencement of its term to enact legislation to achieve the objective. In these circumstances, the likelihood of attainment of the two thirds objective could very well be a mirage. 78.Petition No. 305 of 2020 is a rather unique petition. We characterise it as such because it is a petition by the Attorney General against the Chief Justice. It is a petition in which the executive is effectively seeking to impeach an act done by the head of a coordinate arm of Government. In taking this course, the Attorney General has invoked Article 154(4)(b) of the Constitution under which the Attorney General is clothed with the mandate to represent the national government in court or in any other legal proceedings to which the National Government is a party, other than criminal proceedings. 79.The Attorney General has also invoked Article 1(1) of the Constitution according to which all sovereign power belongs to the people of Kenya and can only be exercised only in accordance with the Constitution; Article 22 under which every person has the right to institute court proceedings claiming that a right or fundament freedom in the Bill of Rights has been denied, violated or infringed, or is threatened; Article 23(1) as read with Article 165 on the jurisdiction of this Honourable Court to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights; and, Article 165(3)(d) on the jurisdiction of this Honourable Court with the specific reference to its mandate to hear and determine any question regarding the interpretation of the Constitution and, in particular, whether anything said to be done under the authority of the Constitution or of any law is inconsistent with or in contravention of the Constitution itself. 80.Further, the Attorney General has also invoked Article 258 of the Constitution on the right of every person to institute court proceedings claiming that the Constitution has been contravened or is threatened with contravention and Article 259 on the manner the Constitution ought to be interpreted. 81.Like the rest of the petitioners, the Attorney General contends that in advising the President as he did, the Chief Justice disregarded public interest and that the order in Petition no. 371 of 2016 was directed at the 11th Parliament. It is also averred that the order ought to have been transmitted to the National Assembly and the Attorney General. The latter contends that it does not matter that parties’ representatives were present in court when the decision in petition no. 371 of 2016 was delivered; such presence could not be deemed to satisfy this Honourable Court’s responsibility to transmit the order to the two offices under Article 261(6) of the Constitution. 82.In Petition no. 314 of 2020, the Advisory is contested on the ground that it is infringing on the legitimate expectation of the Petitioner who was and still a sitting Member of Parliament and other Members of Parliament under Articles 1(2), 101(1), 102(1) and 103(1)(f) of the Constitution of Kenya, 2010 to serve their constituents until the date of the next general election. The term of the 12th Parliament was expected to end on 9 August 2022 when the next general election for Members of Parliament would be held and, thus, the Advisory contravened the Constitution in purporting to advise the President to dissolve Parliament prematurely. 83.It is also contended that the two-thirds gender principle envisaged under Article 27(8) and 81(b) of the Constitution is a guiding constitutional principle and, to that extent, it cannot operate in isolation of the other operative constitutional principles, in particular, the principles upon which Kenya's electoral system and process are founded. 84.It is also pleaded that Article 159(2)(e) of the Constitution provides that one of the guiding principles in the exercise judicial authority by the courts and tribunals is that the purpose and principles of this Constitution shall be protected and promoted. This calls for a holistic approach by the Chief Justice in construing his mandate under the Constitution. 85.It is contended further that the Chief Justice violated the petitioners’ and other Members of Parliament’s rights to fair administrative action and the right to be heard when he unilaterally decided to advise the President to dissolve Parliament without abiding by the provisions of Article 47 of the Constitution. 86.In petition no. 371 of 2020, the petitioner has pleaded that the Respondent acted contrary to the Constitution by exercising his power under Article 261(7) of the Constitution in respect of a legislation outside the scope of Article 261(1) of the Constitution as read with the Fifth Schedule of the Constitution. Legislation under Articles 27 and 81 of the Constitution which form the basis of the Respondent's Advice, are conspicuously missing from the Fifth Schedule of the Constitution. 87.In the Advisory, the Respondent negligently failed to disclose that the legislation on the two-thirds gender rule is not one of the enumerated legislations that should be passed by Parliament under the Fifth Schedule to the Constitution. As such, the Advisory opinion to dissolve Parliament falls outside the threshold of Article 261(7) of the Constitution. 88.The petitioner has also contended that in exercising his powers under Article 261(7) of the Constitution as he has, the Chief Justice sought to direct Parliament's legislative ability in a manner that is inconsistent with Article 94 of the Constitution which vests the legislative authority derived from the people of Kenya to Parliament at the national level. Further, due to its coercive nature, the Respondent's advice is in contravention of the doctrine of separation of powers. 89.In view of the substantial effect and the far-reaching consequences of the Advisory on the elected members of Parliament, the Respondent's administrative decision ought to have been subjected to public participation as envisaged in Article 10 of the Constitution. By adopting a process unknown by the laws of Kenya, to wit, a blanket condemnation of Parliament, the Chief Justice wilfully and positively transgressed against Article 10 of the Constitution. 90.Further, the Advisory was rendered in violation of Parliament's right to fair, efficient, lawful, reasonable and procedural administrative action in violation of Article 47 of the Constitution. 91.Having failed to accord Parliament, the right to fair administrative action in compliance with Article 47 of the Constitution and to subject the Advisory to public Participation in compliance with Article 10 of the Constitution, the Advisory is unconstitutional. 92.In judicial review application no. 1108 of 2020, the applicant sought the Advisory to be quashed on the grounds that it had not been published in the Kenya Gazette or any other media which omission is contrary to the national values and principles of good governance and transparency as enshrined in Article 10 (2) , as well as Article 35 (3) of the Constitution requiring the state to publish and publicize any important information affecting the state. 93.The Advisory is also impeached on the ground that contrary to the binding prescriptions of Article 261 (6) (b) of the Constitution, the Chief Justice downplayed and casually disregarded queries about the transmission of the order to Parliament by the High Court, thereby casting severe doubts on the constitutional fidelity of the process culminating into the issuance of the Advisory to the President. 94.According to the applicant, Article 261 (6) of the Constitution mandatorily requires the High Court to transmit an order directing Parliament and the Attorney-General to take steps to ensure that the required legislation is enacted, within the period specified in the order, and to report the progress to the Chief Justice. Unlike in cases where the law requires litigants to shoulder the burden of service of Court Orders, the Constitution in this case specifically assigns to the High Court the duty to transmit the Order to Parliament and the Attorney General. 95.In the absence of any evidence of transmission, it would be conjectural to contend that the requisite order or orders were brought to the attention of Members of Parliament. In any case, there have been changes in membership, composition and leadership of the Parliament which could have compromised its institutional memory. 96.It is contended further that Parliament was not a party to the proceedings to any of the Petitions or even the appeal fomenting the advice formulated by the Chief Justice. The Speakers of the Senate and the National Assembly cannot be equated to Parliament as such interpretation would be contrary to Articles 93 and 106 of the Constitution. 97.Besides, the Chief Justice has acknowledged that the High Court has never transmitted the order on the subject matter in question to Parliament as constitutionally required. Though, the Parliament’s lawyers were present in court when the orders in question were issued, it is certain that there were no lawyers specifically representing Parliament at the time. In any case lawyers cannot be legitimately expected to transmit the said orders whereas Article 261 (6) (b) the Constitution has specifically assigned that duty to the High Court. Respondents case 98.Responding to the consolidated petitions, the Chief Justice filed grounds of objection in which he pleaded that the Petitions are an attempt by the Petitioners to challenge the validity or legality of the Constitution in so far as the powers and functions of the Chief Justice under Article 261(7) of the Constitution are concerned. 99.The Constitution only created a single institution of Parliament and vested the legislative Authority of the Republic of Kenya in it under Article 96(1) as read together with Article 261(1) of the Constitution. Members of Parliament have a cardinal duty to enact laws under Article 261(1) of the Constitution with the consequence that their collective and individual failure to enact the required law within the constitutional prescribed timelines would result in the loss of their positions and the right to hold office as Members of Parliament under Article 38(3)(c) of the Constitution. 100.The term(s) of each House of Parliament as provided under Article 102(1) of the Constitution has no bearing on the constitutional obligation of Parliament to enact legislation required under Article 27(8) as read with Articles 81(b), l00(a) and 261(1) of the Constitution. In any event, the constitutional obligation of Parliament under Articles 27(8), 81(b) 100(a) to enact the Two Thirds Gender Rule law cannot be sacrificed at the altar of statutory and procedural rules of the National Assembly embodied in the Parliamentary Powers and Privileges Act, 2017 or the Standing Orders of either the National Assembly or the Senate. 101.It is the Chief Justice’s position that an expectation is only legitimate if, as held by the Supreme Court in Communications Commission of Kenya & 8 others v Royal Media Services Limited & 5 others (2014) eKLR, there is an express, reasonable, clear and unambiguous promise given by a competent and lawful public authority and the legitimate expectation does not contravene clear provisions of the law or the Constitution. In the circumstances of this case, any alleged legitimate expectation to hold office until August 2022 was not made by a public body and was, in any event, pegged on the discharge of all obligations of Parliament under the Constitution including to enact the requisite laws under Articles 96(1) and 261(1) of the Constitution. 102.The Chief Justice has also pleaded that the Attorney General sought an Advisory Opinion in the Supreme Court in Advisory Opinion No. 2 of 2012, In the Matter of the Principle of Gender Representation in the National Assembly and the Senate (2012) eKLR on the question of the implementation of the "Two-Thirds Gender Rule" where the Supreme Court opined the legislative measures for giving effect to the one-third-to-two-thirds gender principle, under Article 81(b) of the Constitution and in relation to the National Assembly and Senate, ought to have been taken by 27 August 2015. 103.Having successfully obtained guidance from the Supreme Court, the Attorney General deliberately subverted and violated his constitutional obligations by failing to prepare a Bill for tabling before Parliament as required under Article 261(4) of the Constitution. As a result of this omission, several suits were filed to, inter alia, compel, the Parliament and the Attorney General to act and enact the relevant legislation. The latest suit in this regard was Petition No. 371 of 2016, Centre for Rights Education &Awareness (CREAW) versus Speaker of the National Assembly, Speaker of the Senate & The Hon. Attorney General [2017] eKLR. 104.The Chief Justice has averred that it is a cardinal principle of law that litigation must come to an end. The Petitioners and the Members of Parliament as represented by the Speakers of the National Assembly and the Senate ought to have raised all the questions regarding the implementation of the "Two-Thirds Gender Rule" as required under Articles 27(8) and 81(b) of the Constitution, 2010 before the High Court in Petition No. 371 of 2016, Centre for Rights Education & Awareness (CREAW) versus Speaker of the National Assembly, Speaker of the Senate & The Hon. Attorney General (Supra). Following the determination of that suit, the present Petitioners' claims are no longer justiciable. 105.It is also pleaded that the Speaker of the National Assembly belatedly attempted to raise the same issues now raised by the present Petitioners at the Court of Appeal in Civil Appeal No. 148 of 2017, Speaker of the National Assembly versus Centre for Rights Education & Awareness & 7 Others [2019] eKLR. However, those arguments were dismissed by the Court of Appeal. In particular, the question of the right to a fair hearing was determined by the Court of Appeal in Civil Appeal No. 148 of 2017,Speaker of the National Assembly versus Centre for Rights, Education & Awareness & 7 Others (supra). 106.That notwithstanding, before rendering his advice, the Chief Justice duly granted the Speakers of both the National Assembly and the Senate an opportunity to confirm whether they had complied with the Court orders in the above cases directing them to enact the required legislation under Article 27(8) and Article 81(b) of the Constitution. The Speakers of the National Assembly and the Senate confirmed that the Petitioners had not enacted the required legislation. 107.It is also contended that the question of the propriety, constitutionality, and the obligation of Parliament to enact legislation in respect to the Two Thirds Gender Rule was settled by the Supreme Court in the Advisory Opinion No. 2 of 2012, the High Court Petition No. 182 of 2015, High Court Petition No. 371 of 2016 and the Court of Appeal Judgment in Civil Appeal No. 148 of 2017. The issue is now res judicata and cannot be argued afresh before this Honourable Court. 108.In deference to the constitutional obligation imposed on the Chief Justice under Article 261(7) of the Constitution, the Chief Justice received six petitions from members of the public and having been satisfied that there was non-compliance with the Constitutional obligation of Parliament to enact the required legislation to give effect to the Two Thirds Gender Rule under Articles 27(8) and 81(b) of the Constitution within the timelines imposed by the Constitution, the Advisory Opinion of the Supreme Court and the orders of the High Court as affirmed by the Court of Appeal in Civil Appeal No. 148 of 2017, the Chief Justice advised the President of the Republic of Kenya to dissolve Parliament on 21 September 2020. 109.In rendering his advice to the President, the Chief Justice gave effect to the constitutional process which was signalled by the Supreme Court of Kenya in Advisory Opinion No. 2 of 2012 culminating in the Orders of the High Court in Petition Nos. 182 of 2015 and 371 of 2016 as affirmed by the Court of Appeal in Civil Appeal No. 148 of 2017. 110.In the circumstances of this case, the Hon Chief Justice discharged his constitutional obligation in strict conformity with the Constitution and in compliance with the orders and directions of the Supreme Court, the Court of Appeal, and the High Court. 111.In conclusion, the Chief Justice’s view of the petitions is that they have been filed to sanitize legislative inertia or inaction and to thwart or frustrate the full implementation of the Constitution and usurp, override or transplant mandatory constitutional obligations imposed on Parliament, violate the rights and freedoms of women, and contravene the national values and principles of governance including patriotism, equity, social justice, human rights, inclusiveness, equality, and protection of the marginalised espoused under Article 10(2) of the Constitution. 112.The Chief Justice rates the petitions as being inimical to the overriding objective in Article 48, 159(2)(a) (b) and (e), and 259(1) of the Constitution, Sections 1A, 1B, 3A and 7 of the Civil Procedure Act, Cap 21, and Rule 3(2) as read together with Rules 3(3),(4) and (5) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. In other words, it is the Chief Justice’s position that the petitions are an abuse of the process of this Honourable Court. 113.The Chief Justice’s position is supported by four other parties in the consolidated petition. The support is by way of two petitions and replying affidavits sworn by two parties named in the petition as interested parties. 114.The two petitions in support of the Advisory have been filed as petition no. 302 of 2020 and petition no. 337 of 2020 by Third Way Alliance and Centre for Rights Education Awareness respectively. Federation of Kenya Women Lawyers and the Law Society of Kenya are the interested parties who have filed affidavits in support of the Advisory and, in effect opposed the petitions against the Advisory. 115.The petitioners and the interested parties advocating for the Advisory have adopted the same stance as the Chief Justice and, as a matter of fact, their pleadings are more or less similar to the substance of the pleadings filed by the Chief Justice. 116.In the Third Way Alliance petition, for instance, the petitioner has reiterated that following the provisions of Article 81(b) of the Constitution, it was always incumbent upon the electorate to elect enough women to meet the two-thirds requirement and at the same time Parliament had a corresponding duty to enact legislation required to give effect and meaning to Articles 27(8) and 81 (b) of the Constitution on two-thirds gender rule.The legislation contemplated under Article 261 (1) relating to the gender rule was time bound and the same was to be enacted within 5 years from the date of adoption of the new Constitution. 117.The petitioner has emphasised further that the Chief Justice complied with the Constitution as required and even sought to have Parliament comply with the orders relating to legislation of the two-thirds gender rule in his letter to the Speakers of both Houses of Parliament as well as the Attorney General. When Parliament disregarded these letters, the Chief Justice had no alternative but to give effect to the spirit of the Constitution and the will of the people. 118.In what appears to be a deviation from the Chief Justice’s position on the responsibility of Parliament as an institution to enact the relevant legislation, Third Way Alliance pleadedthat a proper interpretation of the said Article 261(7) does not contemplate dissolution of an entire arm of government that is Parliament but only seeks to dissolve “a faction” of Parliament which is the National Assembly. According to this petitioner, it is not contemplated that state will have only two arms of Government. Thus, the dissolution of Parliament envisaged under Article 261(7) only affects the National Assembly but not the Senate for the reason that the failure to enact the legislation in issue lies with the National Assembly where a Bill for enactment of the legislation would ordinarily originate. 119.On its part, the Centre for Rights Education and Awareness provided statistics in it petition showing that as at August, 2017, women made up to 31.3% of the representation in the Senate and 21.5% in the National Assembly. The petitioner has contended that that if a public body violates these provisions, it is does not have standing to appear before this Court to resolve any issues that arise as a consequence of its failures to abide by Article 3(2), 27(8), and 81(b). Thus, Parliament has no standing to question the Advisory in this Honourable Court. 120.The two petitions have sought, inter alia, a declaration that the Advisory is not a mere recommendation to the President but a constitutional command compelling the President in his capacity as Head of State and Government to dissolve Parliament. They have also sought 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, which, according to the petitioner, is deemed not to exceed twenty one days. If the President does not dissolve Parliament within such reasonable time, Parliament will stand dissolved at the expiration of that period. 121.As to whether the responsibility to pass laws is on individual members of Parliament rather than on Parliament as an institution, it has been averred that the obligation to pass laws is an institutional one. Further, Parliament as one of the arms of National Government is an institution in perpetual existence that is accorded duties and functions under the Constitution. To hold that the duty upon Parliament to pass enabling laws required under the Constitution extinguished in 2016 with the 11ᵗʰ Parliament would mean that the people have no remedy for Parliament's violations of the Constitution. This, in turn, means that Parliament's recalcitrance would make requirements imposed upon it under the Constitution unenforceable. In short, violations of the Constitution cannot be used to make the Constitution moot and unenforceable. 122.Margaret Toili, the Law Society of Kenya and the Federation of Kenya Women Lawyers filed affidavit in support of the Advisory and in opposition to the petitions filed against it. 123.The Independent Electoral and Boundaries Commission filed a replying affidavit as an interested party. The affidavit was sworn by Mr. Douglas Kipruto Bargorett, an advocate of this Honourable Court. According to Mr. Bargorett, the Independent Electoral and Boundaries Commission is aware of Article 81(b) of the Constitution which states that not more than two-thirds of the members of elective public bodies shall be of the same gender as well as the various court decisions on the subject including a decision of the Supreme Court of Kenya and awaits legislation on the same for compliance on its part. He has also sworn that the Commission has actively participated in various fora in an effort to come up with means of compliance with the law and court decisions in respect to the two-third gender rule and realize eventual legislation of the same. 124.The Law Society of Kenya filed a replying affidavit opposing the petitions and supporting the Chief Justice’s Advisory. The affidavit was sworn by Nelson Havi Esq. in his capacity as the President of the Law Society of Kenya at the time material to this petition. 125.In his affidavit, Mr. Havi chronicled events leading to the impugned Advisory. In summary, the Law Society of Kenya’s position is that the Advisory was validly made in accordance with Article 261 of the Constitution, the Chief Justice of the Republic of Kenya having ascertained the failure by and the National Assembly and the Senate, and the two Houses of Parliament having admitted their failure to comply with Articles 27 (8) and 81 (b) of the Constitution. It is also deposed on behalf of the Law Society of Kenya that the Advisory to dissolve Parliament cannot be challenged before a court of law in view of the provisions of Articles 2 (3) and 261 of the Constitution. 126.And even if the Advisory were susceptible to such a challenge, the petitioners named as Leina Konchellah, the National Assembly, the Senate, the Attorney General and Edwin Kimatu Saluny have not pleaded and particularised any grounds and brought facts to indicate any invalidity in the Advisory, to warrant a declaration that the same is unconstitutional. 127.Further, none of the grounds put forth by the National Assembly, the Senate and the Attorney General were raised in the proceedings relating to the petition by the Law Society of Kenya culminating in the making of the Advisory. 128.In response to the consolidated petition, the Federation of Women Lawyers in Kenya filed a replying affidavit sworn by Ms. Ann W. Ireri, the Federation’s Chief Executive Officer, opposing the petitions against the Advisory. Like the Law Society of Kenya, Ms. Ireri has largely chronicled events culminating in the Advisory and reiterated that Article 261 (7) vests the Chief Justice with “enforcement jurisdiction”. This, to the Federation of Women Lawyers, means that the Chief Justice is not enjoined to hold a separate trial under Article 261(5) of the Constitution. 129.The Federation of Women Lawyers’ position is that the Chief Justice’s task under Article s 261(6)(b) and 261(7) of the Constitution is administrative and not judicial. Ms. Ireri has denied that the Chief Justice is guilty of laches or unreasonable delay in his Advisory. 130.On whether the Chief Justice’s Advisory could be deemed a fair administrative action, Ms. Ireri has sworn that all that is required is for the Chief Justice to satisfy himself that Parliament has failed to enact legislation in accordance with an order under clause 261(6) (b) before advising the President to dissolve Parliament. As far as the Federation of Women Lawyers is concerned, the Chief Justice acted not only in accordance with this provision of the Constitution but also complied with Article 47 of the Constitution on fair hearing. Analysis and determination 131.As noted earlier this judgment and as it is now apparent, the facts in this suit are not in dispute and the substance of this petition is primarily the interpretation of the provisions of Article 261 of the Constitution and, in particular, whether, in his advice to the President to dissolve Parliament, the Chief Justice acted intra vires this particular provision of the Constitution. 132.Owing to the character of the petition of being more legal oriented rather than fact-based, there has been very little or no distinction between what parties have pleaded and submitted; in other words, their respective submissions mirror what has been not only pleaded but what has purportedly represented in the affidavits as evidence on oath. We say purportedly because most of what has been “sworn” in the affidavits in support of and in opposition to the consolidated petitions are either legal arguments or a reproduction of various provisions of the Constitution. 133.With these background in mind, it would be repetitive to reproduce each of the parties’ respective submissions at this stage of the judgment. But we will refer to those submissions as much as it necessary to resolve what we have identified as the issue or issues for determination of this petition. 134.Speaking of issues, the National Assembly and the Senate to which the Advisory was targeted identified the following issues for determination:“a.Whether the constitutional principles under Article s 27 (8), 81(b) and 100 can be achieved without affecting the basic structure of the constitution protected under Article 255(1)(c) on sovereignty of the people.b.Whether Parliament can legislate under Article s 27 (8), 81(b) and 100 to alter the composition of Parliament without offending the ceilings of representation set out at Article s 97 and 98 of the Constitution.c.Whether the Chief Justice in his "advise" to the President misconstrued his role in transmittal of the Advisory letter and therefore ignored his dual functions in his capacity/ and or exercisingi.A judicial function;ii.An administrative functioniii.If so, whether the Advisory (sic) justiciable and reviewable by the High Court under Article 165(3) of the constitution?d.Whether the Chief Justice misapprehended his Constitutional mandate and obligation under Article 261 (7).e.Whether having been advised as such by the Chief Justice, the President has any residual discretion under Article 261(7) regarding the dissolution of Parliament, when read together with Article 131(2)(a), (b), (c), (d) and (e) of the constitution.f.Whether the Advisory letter offends against the principle of parliamentary privileges, immunity and debate under Article 117 of the Constitution.g.Whether Parliament as envisaged under the Constitution acts in succession or not, if the answer is in the affirmative:i.Was the order targeted towards the 11th Parliament?ii.Would the order affect the 12th Parliament?iii.Should the order be read in terms of Article 261(8) which talks about separate and distinct parliament?h.Whether the Chief Justice can interfere with the ongoing legislative process when the debate on the Representation of the Special Interest Groups (Amendment) Bill 2019 is ongoing.i.Whether the Chief Justice has powers to interfere with the legislative mandate of the 12th Parliament despite the 12th Parliament having two more years to conclude its terms that runs from August 2017 to August 2022.” 135.These issues raised are, to a greater degree, more representative of the issues raised by the rest of the petitioners and respondents together with interested parties in the sense they are largely common issues except that they have been differently framed. 136.Our reading of the Supreme Court Advisory in Advisory No. 2 of 2012 and the several court decisions arising out of cases that have been filed over the years in the quest for the enactment of the relevant legislation for the implementation of the two-third gender rule reveals that most of these issues have been litigated upon. 137.In the Supreme Court Advisory opinion in the Matter of the Principle of Gender Representation in the National Assembly and the Senate (2012) eKLR, for instance, the Attorney General sought the Advisory opinion of the Supreme Court on two issues one of which was whether Articles 81(b) as read with Articles 27(4), (6) and (8); 96; 97; 98; 177(1)(b); 116 and 125 of the Constitution, required progressive realization of the enforcement of the one third gender rule or whether the same was to be implemented during the general elections scheduled for 4 March 2013. The second issue was on presidential election petitions in the general elections that were due to be held in 2013. This second issue is of no concern to us in the determination of this petition. 138.The Supreme Court understood the request for the Advisory opinion to mean that the Attorney General perceived an inconsistency or potential inconsistency between the equality principles contained in Article 27 of the Constitution, and the specific provisions on membership of the National Assembly and the Senate, as provided in Articles 97 and 98. 139.The Supreme Court assessed the arguments presented before it as contrasting approaches on applicability of Article 81(b) of the Constitution as read alongside other provisions either directly or indirectly relating to the question of gender representation in elective positions. The first approach was that Article 81(b) as read with the other Articles of the Constitution required a “progressive realization” of the enforcement of the gender-equity rule. According to this approach, the rule need not have been implemented during the general elections of March 2013; instead, it had to be implemented or realized in phases, through legislative, policy-making, and other measures. 140.In contrast to the first approach was the second approach according to which the one-third gender rule embodied in Article 81(b) of the Constitution had to be realised immediately and at the general elections of March 2013. 141.The Supreme Court re-examined the question: whether Article 81(b) as read with other provisions of the Constitution requires a progressive realization of the one-third gender rule, or requires the same to be implemented during the general elections of 4 March 2013. 142.The Court interpreted the words “to give full effect”, in Article 27(6) to mean that the rights referred to in that provision of the Constitution, which are civil and political in nature, are not capable of full realization unless the State takes “certain specified measures” which can only be taken in stages, over a period of time, and by means of positive and good-faith exercise of governance discretion. 143.Accordingly, the Court opined that Article 81 is not confined to the National Assembly, the Senate, or County Assemblies but that it contemplates all public bodies, which hold elections for their membership. The court held that the principle in Article 81(b) of the Constitution is “a statement of aspiration” meaning that wherever and whenever elections are held, the Kenyan people expect to see mixed gender. With this in mind, the Supreme Court spoke of Article 81(b) as follows:“70.We consider that Article 81(b), which stands generally as a principle, would only transform into a specific, enforceable right after it is supported by a concrete normative provision. What is the exact status of Article 81(b)? It is, at this stage, to be read together with Article 177, on “Membership of county assembly”: and this leads us to the conclusion that, as regards the composition of county government, Article 81(b) has been transformed into a specific, enforceable right”. 144.The court held the opinion that when Article 81(b) is examined in the context of Article 97 on membership of the National Assembly and Article 98 on membership of the Senate, then the only conclusion that could be drawn was that “it has not been transformed into a full right, as regards the composition of the National Assembly and Senate, capable of direct enforcement”. In that regard, Article 81(b) is not capable of immediate realization, without certain measures being taken by the State. Article 81(b), according to the Supreme Court, is also not capable of replacing the concrete normative provisions of Articles 97 and 98 of the Constitution because these two Articles prescribe the composition of the National Assembly and the Senate. Perhaps, signalling the amendment of the Constitution may be necessary to actualise the two third or one third gender rule the Supreme Court opined:“For Article s 97 and 98 to support the transformation of Article 81(b) from principle to right, the two would have to be amended to incorporate the element which learned counsel, Mr. Kanjama referred to as the “hard gender quota.” In the alternative, a legislative measure as contemplated in Article 27(8) would have to be introduced, to ensure compliance with the gender-equity rule, always taking into account the terms of Article s 97 and 98 regarding numbers in the membership of the National Assembly and the Senate.”(Emphasis added). 145.To emphasise this point, the Court opined:“74.As Article 81(b) of the Constitution standing as a general principle cannot replace the specific provisions of Articles 97 and 98, not having ripened into a specific, enforceable right as far as the composition of the National Assembly and Senate are concerned, it follows – and this is the burden of our Opinion on this matter – that it cannot be enforced immediately. If the measures contemplated to ensure its crystallization into an enforceable right are not taken before the elections of 4 March 2013, then it is our opinion, Article 81(b) will not be applicable to the said elections. The effect is that Article 81(b) of the Constitution is amenable only to progressive realization – even though it is immediately applicable in the case of County Assemblies under Article 177”. 146.The Supreme Court then asked itself a question that is not only pertinent to the issues raised by the parties in this petition but also answers questions many of those issues have raised; to quote the learned judges, they asked, thus:“That leaves open the question: if Article 81(b) is not applicable to the March 2013 general elections, in relation to the national legislative organs, then at what stage in the succeeding period should it apply? This, we believe, answers the compelling question raised in contest to the case for progressivity… When will the future be, as baseline of implementation of the gender-equity rule? 147.And in answer to this fundamental question the Court opined as follows:“Bearing in mind the terms of Article 100 on promotion of representation of marginalised groups and of the Fifth Schedule prescribing time-frames for the enactment of required legislation, we are of the majority opinion that legislative measures for giving effect to the one-third-to-two-thirds gender principle, under Article 81(b) of the Constitution and in relation to the National Assembly and Senate, should be taken by 27 August, 2015.” 148.The court did not leave it at that; it spelt out what we would regard “a default clause” in the event legislation was not enacted in the following terms:“The foregoing opinion is a basis for action in accordance with the terms of Article 261(6), (7), (8) and (9) under the “Transitional and Consequential Provisions” of the Constitution: by way of the High Court being duly moved to issue appropriate orders and directions.” 149.The Supreme Court effectively sanctioned the action of setting in motion the process that would ultimately culminate in the Chief Justice’s advice to the President to dissolve Parliament in accordance with Articles 261(6),(7) and (9) of the Constitution if the relevant legislation would not have been enacted by 27 August 2015. Suits which were filed subsequent to the Advisory and, in particular, after 27 August 2015, must have taken cue from this default clause. 150.As a matter of fact, according to the judgment rendered in the Centre for Rights Education & Awareness (CREAW) v Attorney General & another [2015] KEHC 7433 (KLR) on 26 June 2015, the petition is said to have been filed “to give effect to the Supreme Court’s Advisory Opinion as well as the respective constitutional and legal provisions, certain legislative actions, possibly with a bearing on constitutional amendments, were required to be taken by 27th August 2015”. 151.In that suit, the petitioners sought for, inter alia, “a declaration that to the extent that the 1st and 2nd Respondent have this far failed, refused and or neglected to prepare the relevant Bill(s) for tabling before parliament for purposes of implementation of Article s 27(8) and 81(b) of the Constitution as read with Article 100 and the Supreme Court Advisory Opinion dated 11th December 2012 in Reference Number 2 of 2012, they have violated their obligation under Article 261(4) of the Constitution to “prepare the relevant Bills for tabling before Parliament as soon as reasonably practicable to enable parliament to enact the legislation within the period specified”. 152.In allowing the petition, the Court (Mumbi, J.) (as she then was) held that there had been failure on the part of the Attorney General and the Commission on the Implementation of the Constitution to exercise their respective mandates to enact the requisite legislation. Since the deadline set by the Supreme Court was not yet due at the time judgement was rendered, the Court held there was a threatened violation of the Constitution by the two respondents in the suit with respect to their exercise of their mandate under Article 261(4) and section 5(6) of the Sixth Schedule to the Constitution. The court further granted an order of mandamus compelling the respondents to prepare relevant bills for tabling before Parliament for purposes of implementation of Article s 27(8) and 81(b) of the Constitution as read with Article 100 and the Supreme Court Advisory Opinion. 153.Another case in which the question of gender representation prominently featured post the Supreme Court’s Advisory opinion was the Centre for Rights Education & Awareness (CREAW) & 2 Others versus Speaker of the National Assembly & 2 others (supra) which, as noted earlier in this judgment, is the case that birthed the order on which the Chief Justice acted, the court captured the core issue in the petition as whether Parliament had failed to fulfil the Constitutional obligation to pass legislation that gives effect to the two thirds gender rule and if so, whether the petitioners could invoke the mechanism provided in Article 261 of the Constitution. 154.Following the Supreme Court’s Advisory Opinion, the Court held that Parliament had “failed, refused and or neglected to implement the measures contemplated under Article 27 and 100” and made a declaration to that effect. The court, as noted, directed the National Assembly and the Attorney General to take necessary steps to ensure that the required legislation was in place within sixty days from the date of the order. 155.The Court of Appeal upheld this decision in Speaker of the National Assembly v Centre for Rights Education & Awareness & 7 others (2019) eKLR. The Court captured the crux of the Appeal as follows:“At the heart of this appeal is the question whether the Parliament has failed to enact, within the stipulated period, legislation that is required to fully implement the Constitution of Kenya, 2010 and whether as a consequence, the default mechanism provided by Article 261 of the Constitution, leading ultimately to dissolution of the Parliament, should now be invoked”. 156.Amongst the issues the Court grappled with were whether Parliament’s failure to enact legislation to implement the two-thirds gender principle violated the right to equality and freedom from discrimination and breached the constitutional timelines on the enactment of legislation and Parliament should be dissolved; whether Parliament had taken the requisite legislative measures for the realization of two-thirds gender principle; and, whether the petition ought to have been instituted against all individual members of the National Assembly and of the Senate rather than against the Speakers. 157.The Court of Appeal cited the Supreme Court’s Advisory opinion and several provisions of the Constitution with respect to gender representation and held, inter alia, that Articles 27 and 81 of the Constitution left no doubt in the court’s mind that the Constitution contemplates that elective public bodies, including the National Assembly and the Senate, would in their composition, comply with the gender principle. 158.As to how this could be achieved, the court was of the opinion that there were three possible ways the first of which was through elections. Under this method, voters would, in exercise of their democratic right elect representatives of mixed gender into elective positions. The court acknowledged that this particular method had proved futile hence the need to include the two-third or the one third gender principle in the Constitution. 159.The second method is what the court affirmed as having been set by the Constitution itself. However, the court regretted that this method was restricted to the County Assemblies only, leaving out the National Assembly and the Senate. The court noted that the Constitution contemplates that in democratic elections, it is possible that the required minimum numbers based on gender will not be achieved. Hence for the county assemblies, Article 177(1) (b) provides a formula for achieving or satisfying the gender principle. It is for this reason that the Constitution provides that a county assembly is made up, firstly, of members elected by the registered voters of the wards, secondly, the number of members of marginalised groups, including persons with disabilities and the youth as prescribed by an Act of Parliament, thirdly, the speaker who is an ex officio member, and, lastly, the number of special seat members necessary to ensure that no more than two-thirds of the membership of the assembly are of the same gender. 160.Those special seat members are to be nominated by political parties in proportion to the seats they won in the election in the county. Through this formula, the court noted, the Constitution ensures that in the event a county assembly has, for example less than one-third women, political parties, based on the votes attained in the election, will nominate the number of women required to attain the constitutional ratio. Equally, in the event that the county assembly returned after the election has less than one-third men, the political parties are to nominate the number of men required to achieve the prescribed gender ratio. This method works where the maximum number of members of the institution is not prescribed. It may not work where the Constitution has prescribed the maximum number of members of a House, as Article 97 has done for the National Assembly and Article 98 for the Senate. 161.The Court of Appeal identified the last method of achieving gender equity in elective representation as that contemplated by Article 27 (8), namely, resort to legislative and other measures to ensure that the constitutional ratio in elective bodies is attained. The court understood this to have been the main contention; that the Parliament had failed to take the contemplated legislative and other measures to realize the gender principle in the National Assembly and the Senate. The court noted, however, that Parliament made several initiatives but which had failed. To quote the court;“Truth be told, several initiatives were undertaken to implement the gender principle, including publication of constitutional Amendment Bills but the same were never passed by the Parliament. That remains the position up to now.” 162.The court disagreed with the appellants’ position that Article 81 of the Constitution “comprises mere abstract principles that were not intended to be realized” as untenable. The court acknowledged that Parliament had failed to enact the relevant legislation and that any interested party was free to petition the President for dissolution of Parliament under Article 261(6) of the Constitution. To be precise, the court was categorical that:“As of now, Parliament has not enacted any legislation and any interested party may petition the Chief Justice to advise the President to dissolve Parliament”. 163.In support of what the court described as the default mechanism, the court held as follows:“We ask ourselves, why did the Constitution deem it necessary to provide the default mechanism in Article 261? In our view, it was simply to guard against legislative inertia or inaction which would thwart or frustrate the fully implementation of the Constitution. This is borne out by the Final Report of the Committee of Experts (CoE), which drafted the Constitution, where it was stated thus…” 164.The court also addressed the question of the practicality of actualising the two-third gender rule and noted that Parliament has not done enough to achieve this goal. To quote the learned judges of the Court Appeal:“It is on record that Parliament has undertaken several initiatives, including publishing constitutional Amendment Bills to implement the gender principle. It is equally a matter of public notoriety, which we are entitled to take judicial notice of, that none of those constitutional Amendment Bills has ever been debated or considered by Parliament seriously; they have all been lost due to lack of quorum in the National Assembly. That, to us does not speak of a good faith effort to implement the gender principle and is precisely the kind of conduct that the people of Kenya wanted to avoid by writing into the Constitution Article 261”. 165.In a nutshell, most of the questions raised as issues for determination in this petition have either been litigated upon or ought to have been litigated upon in suits previous to the instant suit. As matter of fact, the appellants in the Speaker of the National Assembly versus Centre for Rights Education & Awareness & 7 others (2019) eKLR and who are now the petitioners in this petition, had objected to the hearing of the petition in the High Court because they alleged that the issues raised in the petition were res judicata. The Court of Appeal summarised their argument as follows:“The respondents to that petition were the Speaker of the National Assembly (the appellant), the Speaker of the Senate and the Attorney General. They opposed the petition vide a notice of preliminary objection, grounds of opposition and replying affidavits sworn by Michael Sialai, Senior Deputy Clerk/ of the National Assembly and Mohammed Ali Mohammed, Senior Deputy Clerk/ of the Senate. They pleaded res judicata, contending that the petition involved the same parties and raised the same issues that were raised, heard and determined in Petition No. 182 of 2015.” 166.We also agree with the Chief Justice in his submissions, that the question of the propriety, constitutionality, and the obligation of Parliament to enact legislation in respect to the Two Thirds Gender Rule was settled by the Supreme Court in the Advisory Opinion No. 2 of 2012, the High Court Petition No. 182 of 2015, High Court Petition No. 371 of 2016 and the Court of Appeal Judgment in Civil Appeal No. 148 of 2017. We agree that that issue is now res judicata and cannot be regurgitated before this Honourable Court. 167.The doctrine of res judicata is captured in section 7 of the Civil Procedure Act, cap. 21 which reads as follows:7.No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court. 168.The question of whether this doctrine is applicable to constitutional petitions was settled by the Supreme Court in John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 others [2021] eKLR where the Court held as follows:“(81)We reaffirm our position as in the Muiri Coffee case that the doctrine of res judicata is based on the principle of finality which is a matter of public policy. The principle of finality is one of the pillars upon which our judicial system is founded and the doctrine of res judicata prevents a multiplicity of suits, which would ordinarily clog the Courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively…“[82]If we were to find that the doctrine does not apply to constitutional litigation, the doctrine may very well lose much of its legitimacy and validity. We say this in light of the fact that constitutional tenets permeate all litigation starting with the application of Article 159 of the Constitution in both civil and criminal litigation, and its application now embedded in all procedural statutes. Further Article 50 on right to fair hearing and Article 48 on access to justice are fundamental rights which every litigant is entitled to. Such a holding may very well lead to parties, that whenever they need to circumscribe the doctrine of res judicata, they only need to invoke some constitutional provision or other.” 169.We conclude our deliberation on this issue by reiterating that, based on the history of this petition which, as noted, is chequered by various litigations culminating in High Court Petition No. 371 of 2016 whose decision was subsequently upheld in Civil Appeal No. 148 of 2017 and, considering the position the petitioners in the instant petition adopted in that case on this question of res judicata, there should not be any doubt that the question of gender representation with particular regard to equitable representation in elective positions as contemplated under Articles 27(6), 81(b) and 100(a) of the Constitution is a question that has been litigated upon right from the High Court all the way to the Supreme Court. Courts have deliberated and acquitted themselves on practicalities of attaining the objective of the Constitution and, in particular, on when the relevant legislation ought to have been enacted. We suppose that the nuts and bolts of how the intention of the Constitution can be turned into a practical reality are details that would be included in the envisaged legislation. Needless to say, other than echoing what the Constitution says, it is beyond this Honourable Court to say how the two-third equitable representation in the National Assembly and the Senate can be achieved. 170.The only question that is yet to be determined and which, in our humble view, is the overarching issue in this petition is the constitutionality of the Advisory. For all that parties have represented in their pleadings, affidavits and submissions, the primary question remains this: Does the Advisory fit into the legal dimensions delineated by the Constitution? This particular issue could not have been litigated upon prior to this petition for the obvious reason the Advisory turns out to be the aftermath of the latest of a series of suits, to which reference has been made, over the subject of the two-third gender principle. In short, the Advisory ignited a fresh cause of action. 171.But before we delve into substantive deliberations on this question, the jurisdiction of this Honourable Court to determine this dispute has been questioned. One need not look further than Article 165(3)(d) (ii) of the Constitution to find the answer to this question. This provision of the Constitution reads as follows:(3)Subject to clause (5), the High Court shall have—(d)jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—(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; 172.There is no doubt that in advising the President as he did, the Chief Justice believed that he was executing his constitutional obligation under Article 261(7) of the Constitution which, as noted earlier in this judgment, is to the effect that if Parliament fails to enact legislation in accordance with a court order under clause (6) (b) of that Article , the Chief Justice is enjoined to advise the President to dissolve Parliament and the President shall dissolve Parliament, accordingly. 173.For the avoidance of doubt that the Chief Justice was under no illusion that he was executing a constitutional obligation, the Chief Justice made the following remarks in conclusion of his Advisory:“(27)In the result, Your Excellency, it is my constitutional duty to advise you, the President of the Republic of Kenya, which I hereby do, to dissolve Parliament in accordance with Article 261(7)”. (Emphasis added). 174.The Court is bound to inquire into and interrogate the Advisory to the extent that it was said to be done under the authority of the Constitution and determine whether it was, in fact, inconsistent with, or in contravention of, the Constitution. Our crisp answer to the question whether this Honourable Court has jurisdiction to determine this matter is, yes, indeed the court is seized with the requisite jurisdiction to dispose of the dispute before it. 175.Turning back to the Advisory, the Chief Justice cited the order of this Honourable Court in Constitutional Petition No. 371 of 2016 and held as follows:“(20) A purposive reading of Article 261 of the Constitution leaves no doubt that the Chief Justice's role under Clause (7) thereof is simply to ascertain if Parliament has satisfied its obligation of result - to enact legislation in accordance with the order given by the High Court. The Chief Justice's role is not to conduct an inquiry into the extent of Parliament's satisfaction of an obligation of conduct towards enacting the required legislation. Rather, the Chief Justice's role is set in bright-line categorical terms:i.First, to ascertain, as an objective matter, if there is a valid Court order made under Clause (5) of Article 261; and,ii.Second, if there is such a Court Order, to ascertain whether or not that order has been complied with.(21)If the Court Order has not been complied with, the Chief Justice is permitted only one course of action: to advise the President to dissolve Parliament. The Constitution donates no discretion to the Chief Justice on the appropriate action to take in the event of non-compliance by Parliament.(22)In this case, Your Excellency, besides the Supreme Court's Advisory Opinion issued on 11th December 2012 in Advisory Opinion No.2 of 2012 and the High Court order issued on 26th June 2016 in Constitutional Petition No. 182 of 2015, on 29th March 2017, Justice Mativo made "a declaratory order" under Clause (5) of Article 261 in Constitutional Petition No. 371 of 2016 “directing Parliament and the Attorney-General to take steps to ensure that the required legislation is enacted within sixty (60) days” from that date and a report made to the Chief Justice. As stated, the appeal against that decision was dismissed by the Court of Appeal in its judgment dated 5th April 2019 delivered in Speaker of the National Assembly v Centre for Rights Education & Awareness & 7 others (2019) eKLR.” 176.In a nutshell, it is the non-compliance with the order in Constitutional Petition No. 371 of 2016 which provoked the Advisory. It is apt at this point to return to the question whether the Advisory stands up to the constitutional standards set out in Article 261 of the Constitution. 177.On this particular question, we have been invited to consider the nature and scope of the Chief Justice’s role under Article 261(6) and (7); whether that role is administrative, judicial, or whether it is what the petitioners have characterised as being of a sui generis constitutional character. We have also been asked to consider whether, in the Advisory, the Chief Justice exceeded his mandate when he purportedly entertained petitions imploring him to advise the President to dissolve Parliament. 178.The petitioners have posited that, firstly, by receiving and considering the Petitions before issuing the Advisory, the Chief Justice usurped the powers reserved for the High Court under Article 261 (5) and (6) of the Constitution; secondly, in issuing the Advisory, the Chief Justice abrogated to himself the Powers of the Supreme Court; and, thirdly, that before sending the Advisory to the President, the Chief Justice did not satisfy himself that the order had been transmitted to Parliament and the Attorney General. 179.Article 261 of the Constitution establishes what may be described as a graduated enforcement mechanism in circumstances where Parliament fails to enact any particular legislation intended to give effect to the Constitution. The structure of the Article is deliberate and sequential. The Supreme Court authoritatively explained this enforcement mechanism in Advisory Opinion No. 2 of 2012, In the Matter of the Principle of Gender Representation in the National Assembly and the Senate (supra). The Court recognized Article 261 as part of the Constitution’s transitional and enforcement framework, intended to ensure that constitutional obligations are not rendered illusory by legislative inertia. 180.For emphasis’ sake, we reproduce here the pertinent clauses of Article 261; they read as follows:(5)If Parliament fails to enact any particular legislation within the specified time, any person may petition the High Court on the matter.(6)The High Court in determining a petition under clause (5) may—(a)make a declaratory order on the matter; and(b)transmit an order directing Parliament and the Attorney-General to take steps to ensure that the required legislation is enacted, within the period specified in the order, and to report the progress to the Chief Justice.(7)If Parliament fails to enact legislation in accordance with an order under clause (6)(b), the Chief Justice shall advise the President to dissolve Parliament and the President shall dissolve Parliament. 181.According to this enforcement mechanism, the Chief Justice’s role in Article 261(7) is triggered by, and dependent upon, three prior events; the first event is that Parliament must have failed to enact a particular legislation within the prescribed time as a result of which a petition for the appropriate remedy has been made to this Honourable Court. The second is that this Honourable Court must have made a determination on the petition brought before it, which determination may take the form of a declaratory order. The third event is that the court’s determination must have been transmitted to the Parliament and the Attorney General with specific direction that the legislation in issue be enacted within the time prescribed by the court. The final event is not an “event” as such; it is, in fact, an omission on the part of Parliament to enact the legislation within the time prescribed by the Court. The Chief Justice’s advice for dissolution of Parliament only crystallises after these preconditions have been demonstrated to exist. 182.The rather obvious and logical question that then follows is whether these conditions were satisfied before the Advisory of 21 September, 2020 was rendered. 183.There is no dispute about the existence of the first two events;Parliament failed to enact the two-third gender principle legislation within the constitutionally prescribed timeline as a result of which a public spirited litigant petitioned the court for the appropriate remedy. There is also no doubt that the court made a determination on the petition and, in particular made a declaratory order directing the Parliament and the Attorney General to take such steps as were necessary to have the legislation enacted within sixty days of the date of the order. 184.The third condition which is the transmission of the declaratory order to the Parliament and Attorney General was not satisfied. This is an issue to which the Attorney General laid a lot of emphasis both in her pleadings and submissions. 185.Want of transmission of the declaratory order is an issue that was brought to the attention of the Chief Justice, by the Speakers of both the National Assembly and the Senate, before he sent the Advisory to the President. This is apparent from the Advisory in which the Chief Justice stated, inter alia, as follows:“(14)In the preliminary objections, the Speakers contend that the six petitions are incompetent and bad in law for the reason that no court order was "transmitted" to either the Chief Justice or to Parliament as required by Article 261(6)(b) of the Constitution…” 186.The “preliminary objections” to which reference has been made were, of course, objections to the petitions petitioning the Chief Justice to advise the President to dissolve Parliament in the wake of the declaratory order by the court. 187.According to the Chief Justice, the transmission of the declaratory order was unnecessary. The Chief Justice’s position on this constitutional pre-requisite was as follows:“The Speakers' contention that no order was "transmitted" to either Parliament or the Chief Justice has no basis. The order in Constitutional Petition No.371 of 2016 was made in the presence of Parliament's lawyers and the six petitioners "transmitted" copies thereof to the Chief Justice”. 188.The Attorney General took up the issue in its own petition against the Advisory and pleaded as follows:“The petitioner respectively asserts that the respondent’s interpretation of Article 261(1) of the Constitution is flawed. The side provision is categorical and unequivocal on the duty of the High Court to transmit the relevant order to Parliament and to the Attorney General. The presence of Parliament’s lawyers in court during the delivery of the decision does not fulfil the constitutional responsibility on the part of the High Court to transmit the order to Parliament and to the Honourable the Attorney General.” 189.The Attorney Generals submissions on this question were in the same breath as her pleadings. 190.A plain reading of Article 261 (6) of the Constitution reveals the obligation placed on the High Court upon determination of a petition under clause 5 of Article 261. Once a declaratory order is made under clause 261(6)(a), the court is enjoined to transmit the order to Parliament and the Attorney General so that the two can take such steps as are necessary to ensure that the required legislation is enacted within the period specified in the order and inform the Chief Justice accordingly. 191.While the order made on a petition filed under Article 261(5) is discretionary, the court is enjoined to transmit the order to Parliament and the Attorney General once it exercises its discretion in favour of a petitioner for the declaratory order. Article 261 (6) (a) and (b) comes as a package, so to speak. 192.We take the view that the transmission process is a constitutional imperative that formally sets in motion the enforcement mechanism towards the dissolution of Parliament as a result of its failure to undertake a mandatory constitutional duty. The word “transmit” has not been defined in the Constitution despite the hallowed place it occupies in the constitutional enforcement mechanism. In the context in which the word has been employed in Article 261(6), we opine that it merely means a formal or official communication to Parliament and the Attorney General, bringing to their attention of not only of the fact of a declaratory order that has been made but also notifying them that the clock on complying with the court’s directions starts ticking from the moment the declaratory order is served, delivered or, in the language of the Constitution “transmitted”. 193.Despite not being defined in the Constitution, we reiterate that “transmission” in this sense is not an idle word because according to section 20(h) of the High Court (Organisation and Administration) Act , cap. 8C, “transmission” of documents is one of the functions of the Registrar of the High Court. In its pertinent part, this provision of the law reads as follows:20.Functions and powers of the Registrar(1)The Registrar shall perform such duties as the Chief Registrar or the Principal Judge may direct, and in particular shall be responsible for—(a)…(b)…(c)…(d)…(e)…(f)…(g)…(h)the acceptance, transmission, service and custody of documents in accordance with the law;(i)…(j)…(k)…(l)…(m)…(n)…(Emphasis added) 194.Thus, under Article 261 (6)(b) as read together with section 20(1)(h) of the High Court (Organisation & Administration) Act, the Registrar bore a constitutional and statutory duty to transmit the declaratory order to the Parliament and the Attorney General. Since the transmission of the order is one of the pre-requisites for advising the President to dissolve Parliament, the Chief Justice ought to have satisfied himself that the Registrar had discharged her mandatory constitutional and statutory obligation before rendering his Advisory. 195.In view of the express provisions of Article 261(6)(b) and section 20(1)(h) of the High Court (Organisation & Administration) Act, transmission of the declaratory order could not be presumed, as suggested by the Chief Justice. Transmission of the declaratory order, as noted, is a constitutional imperative; as such, it cannot be deemed to have been done when, in fact, it has not been done. 196.Unlike in contempt of court proceedings where an alleged contemnor is presumed to be aware of the court order he is alleged to be in contempt of because, among other reasons, the order was pronounced in the presence of his representative or representatives, the Constitution is express that a declaratory order under Article 261(6)(b) must be transmitted to Parliament and the Attorney General. We dare say that it does not matter that the Speakers of both the National Assembly and the Senate and the Attorney General, and not just their legal representatives, may have, themselves, been present in court when the order was pronounced. For the enforcement mechanism to be set in motion, the ultimate of which is to advice the President to dissolve Parliament, it must be demonstrated that every step towards that decision, including the transmission of the declaratory order has been taken in accordance with the letter and spirit of the Constitution. To the extent that the Chief Justice held a contrary view, we respectfully disagree with him. 197.Needless to say, being a constitutional imperative, the transmission of the declaratory order is not a procedural technicality that may be overlooked as such under Article 159 (2) (d) of the Constitution. This provision of the Constitution implores courts to administer justice without undue regard to procedural technicalities. And even if the transmission of the order were, for one moment, to be regarded a procedural rather than a mandatory constitutional requirement, it is not every procedural requirement that is relegated to the back banner on the basis that it is “undue procedural technicality". The Supreme Court in Law Society of Kenya v Centre for Human Rights and Democracy & 12 others (Petition 14 of 2013) [2014] KESC 29 (KLR) emphasised that applicable rules must be complied with. The court held as follows:“46…We agree with counsel for the other respondents, through learned counsel Messrs. Khaminwa, Ojiambo and Mwenesi, that the applicable rules must be complied with by those who seek justice from the courts. Indeed, this court has had occasion to remind litigants that Article 159(2)(d) of the Constitution is not a panacea for all procedural shortfalls. All that the Courts are obliged to do, is to be guided by the principle that “justice shall be administered without undue regard to technicalities.” It is plain to us that Article 159 (2)(d) is applicable on a case-by-case basis (Raila Odinga & 5 others v IEBC and 3 Others; Petition No. 5 of 2013, para 2013. eKLR).” 198.Unlike in the Law Society of Kenya versus Centre for Human Rights and Democracy & 12 others (supra) where the Supreme Court emphasised the need to comply with what, in effect, was subsidiary legislation, the matter before us concerns compliance with a Constitutional provision that informs a process that would lead to such a grave consequence as dissolution of Parliament. 199.Without belabouring the point, a constitutional process that is so consequential as that envisaged in Article 261 cannot be taken lightly; every step in this process, however mundane or minor it looks, must be strictly complied with without any sort of presumptions. Thus, failure to transmit the declaratory order rendered the Advisory a nullity. 200.We come to the conclusion that when the Chief Justice rendered his advice on 21 September 2020, his power to issue such an Advisory had not crystallised. In other words, the Advisory was premature and misconceived since it was made before the declaratory order was transmitted to Parliament and the Attorney General. The Advisory was simply contrary to Article 261 (6) (b) of the Constitution. 201.But the matter does end there. We have also been asked to determine the question whether the order that was to be transmitted was restricted to the 11th Parliament to the exclusion of any subsequent Parliament including the 12th Parliament or the current Parliament. 202.It has been urged on behalf for the Speakers of both Houses that the life of Parliament is tied to its term, and, therefore, the order in issue was exclusively directed at the 11th Parliament. According to this argument, the 12th Parliament could not have been affected by any court order issued during the life of the 11th Parliament since each Parliament has a separate and distinct lifetime linked to an election cycle. The two speakers raised this question with the Chief Justice before he rendered his Advisory. However, the Chief Justice discounted the notion that the order was restricted to the 11th Parliament and held as follows:“The argument that the order in Constitution Petition 371 of 2016 was directed to 11th Parliament has no basis. The obligation under Article 261(5) to enact legislation and order in that Petition was directed to Parliament as an institution and not the 11th Parliament…” 203.Two provisions in the Constitution provide some guide on whether a court order directed to Parliament is restricted to and only enforceable during a particular term of Parliament or binds Parliament as an institution. Article 93 (1) of the Constitution provides for the establishment of Parliament, as an institution ; it reads as follows:Establishment of Parliament-There is established a Parliament of Kenya, which shall consist of the National Assembly and the Senate. 204.On the other hand, Article 102(1) defines “term of Parliament”; it reads as follows:Term of Parliament:The term of each House of Parliament expires on the date of the next general election. 205.What is clear from these provisions is that Parliament is not defined on the basis of any particular term to which members of Parliament have been elected; as an institution, Parliament exists in perpetuity independent of terms or any one of them during which members elected in a general election sit. The two provisions provide a clear distinction between Parliament, the institution, and the term of Parliament which, as noted, is tied to an election cycle. 206.The nature and the character of the institution of Parliament under Article 93 of the Constitution is that it is transcendental; it is beyond the sum of its individual representatives. It is some kind of a permanent constitutional corporation with autonomous legal personhood and not a fluctuating or shifting political assembly. It is a structured, symbolic and constitutional institution and to some degree, a culture or doctrine, rather than a mere sum of representatives. Its rules, roles, administrative apparatus, cultural practices and constitutional position give it continuity and identity beyond the changing membership. This stems from the principle that individual Members of Parliament are temporary occupants of a continuous, immutable constitutional office. 207.Based on the theory of corporate personality and institutional continuity, Parliament operates as a corporation aggregate or an abstract legal person. It has rights, privileges, immunities and legal powers that do not dissolve when individual members are, for instance, ousted by loss of an election, retire, or pass away or where there is a fresh election cycle. While individual politicians come into office through democratic elections and their term limits are determined by constitutional cycles, the structural entity of Parliament never dies. Its legal rights, obligations, responsibilities, and constitutional position remain completely intact. 208.Parliament, like a corporate entity has a legal personality completely distinct from its members. In the context of public law, this principle ensures that the actions, liabilities and statutory outputs of a previous Parliament strictly bind the state, even where there is a completely new membership. 209.Further, following the concept of procedural and constitutional continuity, it can be argued that if Parliament were merely the sum of its members, as the petitioners have suggested in their case, the death or resignation of a majority of members would legally and automatically extinguish the legislature. However, the existing constitutional framework is such that there is a preservation of the legislature as an arm of governance, allowing it to function continuously through established quorums and procedural rules. 210.We need not belabour the point that Article 94 of the Constitution explicitly vests legislative authority in Parliament as an institution not as individuals. It declares that Parliament represents the will of the people and exercises their sovereignty as an organ, not cascaded into the individual fragments owned by individually elected politicians. 211.Article 94, in a way embodies John Locke’s and Jean-Jacques Rousseau’s Social Contract Theory as discussed by Yelubayev, B., & Olay, C. (2025). “Locke and Rousseau: From Natural Freedom to The Social Contract”, Conatus -Journal of Philosophy, 10(1), 255–274, where it is posited that political power is artificial and its legitimacy is drawn from individual consent. 212.According to this theory, the agreement concluded by all its participants (the electorate) is considered the basis of a true political body and that a form of government that binds naturally free people is created through a political association based on the concept of a contract. In other words, that sovereign power that originally belongs to the people is donated to Members of Parliament by virtue of the offices they hold which connotes a permanent institutional vessel, not the individual Members of Parliament themselves. The vessel ought not be confused with the souls on board. 213.This point was captured in Edmund Burke’s Speech to the Electors of Bristol (1774) as referenced in P.B. Kurland and R. Lerner (eds.) (1987) The Founders' Constitution, Volume 1, Chapter 13, Document 7 where he stated as follows:“…Parliament is not a congress of ambassadors from different and hostile interests, which interests each must maintain, as an agent and advocate, against other agents and advocates; but parliament is a deliberative assembly of one nation, with one interest, that of the whole...” 214.In the South African case of Economic Freedom Fighters and Another v Speaker of the National Assembly and Others [2026] ZACC 17 the Constitutional Court of South Africa, cited its earlier decision in Women’s Legal Centre Trust v President of the Republic of South Africa [2022] ZACC 23; 2022 (5) SA 323 (CC); 2023 (1) BCLR 80 (CC) and spoke to this question as follows:“…court orders issued in respect of the National Assembly continue to apply to its successors even after a particular National Assembly is dissolved…an election is conducted and the composition of the National Assembly is changed. In that matter, notwithstanding the relevant lapse and change in composition after elections, the order of this Court remained extant, unaffected by the elections, and Parliament was obliged to pass the contemplated legislation by the deadline or seek an extension.” 215.Thus, when courts issue remedies for legislative failures, the orders issued or declarations made are directed at Parliament as a constitutional organ, not individual Members of Parliament. This further entrenches the postulation that Parliament is a permanent institution accountable for its systemic constitutional obligations and not a fleeting body of its individual membership. 216.Without belabouring the point, the institution of Parliament established under Article 93 (1) transcends its membership such that where Parliament is tasked with a legal obligation, the obligation outlives the term of Parliament. Parliament cannot be said to be discharged from its constitutional responsibilities merely because the term of Parliament when they arose has expired. Parliament’s constitutional responsibilities are not personal to individual members; they are institutional responsibilities that transcend the term of Parliament when they accrue. Upon election to either Houses of Parliament, the Members’ role is to ensure that Parliament delivers on its obligations irrespective of when they arose. 217.The Speakers of the two Houses belaboured under the rather mistaken notion that like Bills of Parliament, the court order in Petition No. 316 of 2017 was restricted to a specific Parliament such that when the term of that Parliament expired, the order “lapsed”. It is true that Standing Order No. 141 of the National Assembly Standing Orders and Standing Order 160(3) of the Senate provide that a “Bill the consideration of which has not been concluded at the end of the term of a Parliament shall lapse”. 218.We are of the firm position that a declaratory order under Article 261 (6) (a) is not equivalent to a Parliamentary Bill. Unlike Bills of Parliament which lapse with the expiry of the term of Parliament, a court order under Article 261(6) (a) does not die with the effluxion of time. 219.A similar argument in was dismissed by the Constitutional Court of South Africa in Economic Freedom Fighters and Another v Speaker of the National Assembly and Others (supra)where the court emphasised that the National Assembly Rules (equivalent to Standing Orders in the case of our Parliament) cannot override Constitutional Provisions; the court held:“(112)Secondly, it might be argued that the NA Rules do not apply to executive functionaries in the same way they apply to the National Assembly and that, given the stipulations of rule 351, the decision has lapsed and is now moot. That is, this Court cannot revive a motion that has been extinguished by the NA Rules. But such a view is untenable as it would elevate the NA Rules above the Constitution’s provisions which require consistency with its injunctions and render orders of court binding.” 220.In the Speaker of the National Assembly v Centre for Rights Education & Awareness & 7 others (Civil Appeal 148 of 2017) [2019] KECA 655 (KLR) (5 April 2019) (Judgment) the Court of Appeal gave a bit of the history of Article 261(7) which reaffirms the position that an order under Article 261(6)(a) is intended for the institution of Parliament and survives any parliamentary term. Citing “Final report of the committee of experts on constitutional review” dated 11 October 2010, the Court held as follows:“75.We ask ourselves, why did the Constitution deem it necessary to provide the default mechanism in Article 261? In our view, it was simply to guard against legislative inertia or inaction which would thwart or frustrate the fully implementation of the Constitution. This is borne out by the Final Report of the Committee of Experts (CoE), which drafted the Constitution, where it was stated thus;“The new Constitution also set out a procedure to be followed if a law were not enacted within the scheduled time. The challenge was to ensure that the new laws envisaged by the new constitution are promptly enacted. Under Article 308 of the Bomas Draft, if Parliament failed to adopt a particular law within the time stipulated in the table, anyone could petition the High Court for a declaratory order instructing Parliament to enact the law within a specified period. If this was not done, Parliament would be dissolved...The new Constitution follows the Bomas approach in allowing the National Assembly to extend the time within which a Bill is to be passed, provided that the extension is justified by exceptional circumstances and has the support of at least two-thirds of its members. It also permits any person to petition the High Court to deal with a failure by the National Assembly to pass a law in time. If the National Assembly fails to abide by the court order, it will be dissolved and a new election held.” 221.Our conclusion on this subject is that the order made in High Court Petition No. 371 of 2016 transcended the 11th Parliament and remains a valid order capable of enforcement. Until it was complied with, the order bound the 12th Parliament that was then in session when the order was issued, and still binds any subsequent Parliament, including the current Parliament. For this reason, it may still be transmitted to the Attorney General and the Parliament by the Registrar of this Honourable Court, in accordance with Article 261(6)(b) of the Constitution as read with Section 20(h) of the High Court (Organization & Administration) Act, in which event, the timeline prescribed by the court for Parliament and the Attorney General to take necessary steps towards enactment of the relevant legislation will start running from the date of transmission. 222.For the reasons we have given, we allow the consolidated Petition against the Advisory in the following terms;i.The Chief Justice’s Advisory dated 21 September 2020 is hereby declared Unconstitutional, null and void.ii.The Chief Justice’s Advisory dated 21 September 2020 is hereby removed into this Court for purposes of quashing and is hereby quashed.iii.An Order of Prohibition is hereby issued Prohibiting the President of the Republic of Kenya from enforcing the Advisory by the Chief Justice of 21 September 2020.iv.This being a Public Interest Litigation, we make no order as to Costs.It is so ordered. SIGNED , DATED AND DELIVERED IN NAIROBI ON 5TH JUNE 2026NGAAH JAIRUSJUDGEPATRICIA NYAUNDIJUDGELAWRENCE MUGAMBIJUDGEMOSES ADOJUDGETABITHA OUYA WANYAMAJUDGE