https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9465

Ole Kanchory & 10 others v President of the Republic of Kenya & 32 others (Constitutional Petition E015 of 2024 & Petition E389 (Nrb), E397 (Nrb) & E405 (Nrb) of 2024 (Consolidated)) [2026] KEHC 9465 (KLR) (30 June 2026) (Judgment) (with dissent - J Ngaah, J) Neutral citation: [2026] KEHC 9465 (KLR) Republic of Kenya In the High Court at Malindi Constitutional Petition E015 of 2024 & Petition E389 (Nrb), E397 (Nrb) & E405 (Nrb) of 2024 (Consolidated) EKO Ogola, SM Githinji & J Ngaah, JJ June 30, 2026 Between Saitabao Ole Kanchory 1st Petitioner Katiba Institute 2nd Petitioner Centre For Rights, Education Awareness 3rd Petitioner Institute For Social Accountability 4th Petitioner Community Advocacy AndAwareness Trust 5th Petitioner World March Of Women – Kenya 6th Petitioner Kenya Human Rights Commission 7th Petitioner Wanjiru Gikonyo 8th Petitioner Eliud Karanja Matindi 9th Petitioner Dr Magare Gikenyi 10th Petitioner Okiya Omtatah Okoiti 11th Petitioner and The President Of The Republic Of Kenya 1st Respondent The Speaker Of The National Assembly 2nd Respondent The Hon Attorney General 3rd Respondent The National Assembly 4th Respondent and James Opiyo Wandayi 1st Interested Party John Mbadi Ng’ongo 2nd Interested Party Hassan Ali Joho 3rd Interested Party Wycliffe Ambetsa Oparanya 4th Interested Party Professor Kithure Kindiki 5th Interested Party Alice Wahome 6th Interested Party Roselinda Soipan Tuya 7th Interested Party Aden Barre Duale 8th Interested Party Davis Chirchir 9th Interested Party Salim Mvurya 10th Interested Party Rebecca Miano 11th Interested Party Alfred Nganga Mutua 12th Interested Party Onesimus Kipchumba Murkomen 13th Interested Party Justin Bedan Njoka Muturi 14th Interested Party Dr Debra Mlongo Barasa 15th Interested Party Julius Migos Ogamba 16th Interested Party Dr Andrew Mwihia Karanja 17th Interested Party Eric Muriithi Muyaa 18th Interested Party Dr Mararet Nyambura Ndung’u 19th Interested Party Stella Soi Langat 20th Interested Party Dorcas Agik Oduor 21st Interested Party Law Society Of Kenya 22nd Interested Party Transparency InternationalKenya 23rd Interested Party Inuka Kenya Na Sisi 24th Interested Party Hon Rigathi Gachagua 25th Interested Party Hon Musalia Mudavadi 26th Interested Party Ethics And Anti-corruptionCommission 27th Interested Party Lee Kinyanjui 28th Interested Party Geoffrey K Kiringa Ruku 29th Interested Party (Consolidated With Nairobi Petition No. E389 Of 2024, Nairobi Petition No. E397 Of 2024 And Nairobi Petition No. E405 Of 2024) Judgment A. Introduction 1.Following the nationwide demonstrations that commenced on 18th June 2024 against the Finance Bill, 2024, significant political and constitutional developments unfolded within the Executive branch of Government, ultimately culminating in the present consolidated petitions. In response to the widespread public opposition to the Finance Bill, 2024, the President of the Republic of Kenya, on 26th June 2024, declined to assent to the Bill and referred it back to Parliament with a recommendation that it be withdrawn in its entirety. The President explained that his decision had been informed by the views and concerns expressed by Kenyans during the demonstrations and the broader public discourse surrounding the proposed legislation. 2.Subsequently, on 11th July 2024, through Gazette Notice No. 8440 and a Presidential Press Statement of the same date, the President dismissed all Cabinet Secretaries, with the exception of the Prime Cabinet Secretary. In the statement, the President indicated that the decision followed a holistic appraisal of the performance of the Cabinet, its achievements and challenges, as well as the feedback received from the people of Kenya regarding the responsiveness of the Government in the discharge of its functions. The President further stated that the reorganisation was intended to promote efficiency, effectiveness, transparency and accountability in public service delivery and to realign the governance structure of the Executive to better serve the needs and aspirations of Kenyans. 3.Thereafter, on 19th July 2024, the President announced the first batch of Cabinet Secretary nominees for consideration by the National Assembly. A further announcement followed on 23rd July 2024, in which the President adjusted certain nominations, including the reassignment of some nominees to different ministerial portfolios and the withdrawal of the nomination of one nominee to the office of Attorney-General. Following receipt of the nominations, the Speaker of the National Assembly referred the names to the Committee on Appointments and directed that the requisite approval process be undertaken in accordance with the Constitution and the Public Appointments (Parliamentary Approval) Act. 4.On 24th July 2024, the President announced a second batch of Cabinet Secretary nominees. The following day, 25th July 2024, the National Assembly invited members of the public to submit memoranda regarding the suitability of the nominees and published a notice scheduling approval hearings and vetting of the nominees between 1st August 2024 and 4th August 2024. Subsequently, on 30th July 2024, the President nominated an additional Cabinet Secretary and a nominee for the office of Attorney-General, thereby completing the list of appointments that were to undergo parliamentary scrutiny. 5.The nominations generated considerable public debate and attracted objections from various quarters. Among the concerns raised were allegations that the proposed composition of the Cabinet would fail to comply with the constitutional requirement that not more than two-thirds of the members of an appointive body be of the same gender. Concerns were also expressed regarding the nomination of several individuals who were previously associated with political parties in opposition to the ruling coalition and regarding the nomination of the Attorney-General, which some petitioners contended had not been preceded by a competitive and merit-based recruitment process. 6.Between 1st August 2024 and 5th August 2024, the Committee on Appointments of the National Assembly conducted approval hearings for the Cabinet Secretary nominees. Upon conclusion of the vetting process, the National Assembly approved nineteen nominees and rejected one nominee. On 7th August 2024, the President formally appointed the approved Cabinet Secretaries through Gazette Notice No. 9622. Thereafter, on 9th August 2024, the Committee on Appointments vetted the nominees for the office of Cabinet Secretary for East African Community Affairs and Regional Development and the office of Attorney-General. Following approval by the National Assembly, those nominees were appointed on 19th August 2024 through Gazette Notice Nos. 10346 and 10347, respectively. 7.Subsequent changes were also made to the composition of the Executive. Following the impeachment and removal of the Hon. Rigathi Gachagua as Deputy President, the President, on 18th October 2024, nominated Prof. Kithure Kindiki for appointment as Deputy President. The nomination was approved by the National Assembly, and Prof. Kindiki was subsequently sworn into office as Deputy President on 1st November 2024. Thereafter, on 19th December 2024, the President nominated Hon. Mutahi Kagwe, Hon. Lee Kinyanjui and Hon. William Kabogo for appointment as Cabinet Secretaries in various ministries. The National Assembly approved the nominations on 16th January 2025, and the appointments were subsequently formalized through Gazette Notice No. 379 of 2025. 8.Further changes to the Cabinet were announced on 26th March 2025, when the President nominated Ms. Hannah Wendot Cheptumo and Geoffrey Kiringa Ruku for appointment as Cabinet Secretaries and simultaneously reassigned certain serving Cabinet Secretaries to different ministries. On 3rd April 2025, the National Assembly announced that approval hearings for the nominees would be conducted on 14th April 2025. These nominations likewise attracted objections from some of the petitioners, who contended that the proposed appointments would further exacerbate the alleged non-compliance with the constitutional requirements relating to gender representation, inclusivity and diversity within the Executive. 9.It is against this backdrop of the dissolution and reconstitution of Cabinet, the nomination and appointment of Cabinet Secretaries and the Attorney-General, the appointment of a new Deputy President, and the subsequent reshuffles and appointments within the Executive, that the present consolidated petitions were instituted. B. Description of Parties 10.The consolidated petitions were instituted by a diverse group of petitioners comprising individual citizens, constitutional organizations, human rights institutions, governance and accountability bodies, and civil society organizations. 11.The 1st, 8th,, 9th ,10th and 11th Petitioners are public-spirited Kenyan citizens who approached the Court in the public interest seeking enforcement of the Constitution. The 2nd Petitioner is a constitutional litigation and research institution whose mandate includes promoting constitutionalism, enhancing public understanding of the Constitution, and facilitating its implementation. The 3rd Petitioner is a national feminist women's rights organization dedicated to advancing gender equality and the protection of women's rights, while the 4th Petitioner is a civil society organization committed to promoting accountable governance and equitable distribution of public power. The 5th Petitioner is a non-profit organization that advocates for the protection and advancement of citizens' rights, particularly from a gender and governance perspective. The 6th Petitioner is a feminist social movement that seeks to challenge inequality, discrimination and exclusion affecting women. The 7th Petitioner is a human rights organization whose mandate includes the promotion of constitutionalism, the rule of law and the administration of justice. 12.The 1st Respondent is the President of the Republic of Kenya and the Head of State and Government, vested with executive authority under Articles 129, 131 and 132 of the Constitution. The 2nd Respondent is the Speaker of the National Assembly, while the 4th Respondent is the National Assembly, the legislative body charged, inter alia, with considering and approving presidential nominees to various State offices. The 3rd Respondent is the Honourable Attorney General, the principal legal adviser to the Government and the holder of the constitutional office established under Article 156 of the Constitution. 13.The Interested Parties comprise persons and institutions whose rights, interests or constitutional mandates are directly implicated by the issues raised in the consolidated petitions. The 1st to 21st, 25th, 30th and 31st Interested Parties are current or former Cabinet Secretaries whose nominations, approvals, appointments, reappointments, transfers or continued tenure in office form part of the subject matter of the dispute. 14.The 22nd Interested Party is the current Attorney-General, whose nomination and appointment are challenged in some of the petitions. The 23rd Interested Party is the Law Society of Kenya, a statutory body established to represent, protect and assist members of the legal profession and to advance the administration of justice and the rule of law. 15.The 24th Interested Party is a public interest organization engaged in promoting transparency, accountability, integrity and good governance. The 26th Interested Party is a citizen-led movement that seeks to foster civic engagement, national cohesion and transformative leadership. The 27th Interested Party is the former Deputy President of the Republic of Kenya, whose impeachment and subsequent replacement form part of the broader factual background to the petitions. The 28th Interested Party is the Prime Cabinet Secretary, while the 29th Interested Party is the Ethics and Anti-Corruption Commission, an independent constitutional commission established under Chapter Fifteen of the Constitution and mandated to combat corruption and promote ethical conduct in public affairs. 16.Given the multiplicity of parties, the breadth of issues raised, and the constitutional questions implicated by the dissolution and reconstitution of the Cabinet, the appointment of the Attorney-General, compliance with the principles of leadership and integrity, public participation, gender representation, inclusivity and constitutional governance, the petitions were consolidated for hearing and determination together. C. Litigation history 17.The litigation giving rise to these consolidated petitions commenced shortly after the reconstitution of the Cabinet following the dissolution of the previous Cabinet in July 2024. The first matter to be filed was Malindi Constitutional Petition No. E015 of 2024 by the 1st Petitioner, on 26th July 2024. The Petition was accompanied by a Notice of Motion brought under a certificate of urgency seeking conservatory orders to restrain the National Assembly from undertaking the vetting and approval of the Cabinet Secretary nominees and to prohibit the President from appointing the nominees pending the hearing and determination of the Petition. 18.Subsequently, on 1st August 2024, the Petitioner filed a further application seeking certification that the matter raised substantial questions of constitutional law warranting empanelment of a bench under Article 165(4) of the Constitution. In the same application, the Petitioner sought the recusal of Hon. Justice Stephen M. Githinji from the proceedings. 19.The 1st Respondent entered an appearance and opposed the Petition, while the 2nd Respondent raised a preliminary objection challenging the jurisdiction of the Court to entertain the matter. Before the preliminary objection could be determined, the application for the recusal of Hon. Justice Githinji was argued. In a ruling declining recusal, the learned Judge explained the circumstances surrounding the alleged delay in dealing with the matter and held that no reasonable basis had been established to warrant his disqualification. 20.Having considered the issues raised in the Petition, the learned Judge was satisfied that the matter presented substantial questions of constitutional law and issues of great public importance touching on the composition of the national Executive, constitutional governance and public appointments. Consequently, the matter was referred to the Honourable Chief Justice for the empanelment of an uneven bench pursuant to Article 165(4) of the Constitution. 21.Meanwhile, on 5th August 2024, the 2nd to 6th Petitioners filed Nairobi Constitutional Petition No. E389 of 2024, together with a Notice of Motion under certificate of urgency. The Petition challenged the legality of the reconstituted Cabinet and sought, among other reliefs, declarations that the nomination and reappointment of previously dismissed Cabinet Secretaries violated the Constitution, particularly Articles 10, 27 and 35(3). Through the accompanying application, the Petitioners sought conservatory orders restraining the National Assembly from proceeding with the vetting and approval process, restraining the President from making appointments, and prohibiting the proposed Cabinet Secretaries and Attorney-General from assuming office or discharging any official functions pending the hearing and determination of the Petition. 22.The Petition was later amended on 30th September 2024. Thereafter, on 4th April 2025, the Petitioners filed a further application seeking leave to amend the Petition once again so as to reflect subsequent changes in Cabinet composition, including the joinder and substitution of newly appointed Cabinet Secretaries and nominees following the Cabinet reshuffles undertaken between December 2024 and March 2025. 23.On 8th August 2024, the 7th and 8th Petitioners instituted Nairobi Constitutional Petition No. E397 of 2024 accompanied by a Notice of Motion seeking certification of urgency and referral of the matter to the Chief Justice for empanelment of a multi-judge bench. The Petition principally challenged the constitutionality of the public participation process undertaken by the National Assembly during the vetting and approval of Cabinet Secretary nominees. The Petitioners also sought orders compelling disclosure of all records and documents relating to the nomination, vetting, approval and appointment process. Subsequently, on 23rd September 2024, Haki Yetu Charitable Trust filed an application seeking leave to participate in the proceedings as an Interested Party. 24.On 9th August 2024, the 9th, 10th and 11th Petitioners filed Nairobi Constitutional Petition No. E405 of 2024 together with a Notice of Motion under certificate of urgency seeking conservatory orders suspending the appointments of Cabinet Secretaries and restraining them from exercising the functions of their respective offices pending determination of the Petition. The Petition challenged, inter alia, the appointments of the Cabinet Secretaries and the Attorney-General and sought declarations invalidating the nominations and appointments of the 1st to 19th Interested Parties, the Attorney-General and other State officers. The Petitioners also sought certification that the matter raised substantial questions of constitutional law warranting referral to the Chief Justice for empanelment of an uneven bench. 25.Subsequently, on 16th August 2024, the Petitioners filed an application seeking leave to effect substituted service upon the Interested Parties through publication in a newspaper of national circulation. On 22nd August 2024, they filed a further application seeking leave to amend the Petition, to join additional Interested Parties, to suspend the appointments of the Cabinet Secretaries and Attorney-General, and to restrain the Controller of Budget from authorising payment of salaries and benefits to the impugned office holders pending determination of the dispute. 26.Given the multiplicity of petitions filed before different courts and the substantial overlap in the constitutional questions raised, applications were made seeking consolidation and coordinated determination of the various proceedings. In particular, on 17th September 2024, the 2nd Respondent in Nairobi Petition No. E405 of 2024 filed an application seeking either the stay or consolidation of several related constitutional petitions then pending before the High Court, including Nairobi Petition Nos. E363 of 2024, E364 of 2024, E372 of 2024, E381 of 2024, E389 of 2024, E397 of 2024, E403 of 2024 and E433 of 2024. The application was premised on the contention that the petitions raised substantially similar questions concerning the legality and constitutionality of the Cabinet appointments and should therefore be heard together and determined through a single judgment. 27.On 25th September 2024, the Court ordered the consolidation of Nairobi Petition Nos. E397 of 2024 and E398 of 2024. On the same date, the Court allowed the application by the Petitioners in Nairobi Petition No. E405 of 2024 seeking consolidation with Nairobi Petition Nos. E397 of 2024, E398 of 2024 and Malindi Petition No. E015 of 2024, having found that the petitions arose from the same series of constitutional events, challenged substantially the same nominations and appointments, and raised common questions concerning public participation, constitutional appointments, gender representation, leadership and integrity, parliamentary approval processes, and the exercise of presidential power. The Court accordingly directed that the matters proceed together for purposes of hearing and determination, and Malindi Petition No. E015 of 2024 became the lead file. 28.During subsequent case management conferences, the parties agreed that the preliminary objection challenging the jurisdiction of the Court would be heard and determined together with the substantive petitions. It was further agreed that the conservatory orders initially sought in the application dated 26th July 2024 had largely been overtaken by events following the completion of the vetting process, parliamentary approval of the nominees and their subsequent appointment and assumption of office. Consequently, the Court directed that the consolidated petitions proceed to hearing on the merits, leading to the present judgment. D. Petitioners’ Case 1st Petitioner’s Case 29.In Malindi Petition No. E015/2024, the 1st Petitioner herein vide a further amended Petition dated 4th April 2025 sought the following orders:a.A declaration that the President has acted in contravention of the Constitution in nominating, appointing and maintaining a Cabinet that does not meet the two-thirds gender requirement under Articles 10 and 27 (8) of the Constitution.b.A declaration that the National Assembly violated the Constitution by accepting and approving nominees for Cabinet positions when it was clear that it would effectively violate the rule of law and specifically Article 27 (8) of the Constitution.c.A declaration that since the Cabinet fails the test of legality under Articles 152 (1), 152 (2) and Article 27 (8), as constituted, the Cabinet is in violation of Article 3 (2) and per Article 2 (4) of the Constitution and is invalid.d.Based on (d) above, any action/decision/policy position/directive/ Gazette notice made by the Cabinet in its corporate state or by the individual Cabinet Secretaries from the date their appointments took effect, that is 7th August 2024 and 20th August 2024, 18th October 2024 and 1st November 2024, 19th December 2024 and 16th January 2025, 26th March 2025 respectively are a nullity in law and of no legal effect.e.An Order directed at the Secretary to the Cabinet restraining him from whatsoever paying any salaries, emoluments or according any benefits to any person appointed as Cabinet Secretary.f.A declaration that the President’s nomination of dismissed Cabinet Secretaries for reappointment without providing reasons to the public for their renomination and reappointment was contrary to Article 35 (3) of the Constitution and Section 5 (1) (c) of the Access to Information Act.g.A declaration that the dismissal of the nine (9) persons listed below as Cabinet Secretaries made them ineligible to be nominated as Cabinet Secretaries on account of the operation of Chapter 6 of the Constitution and specifically Article 75 (3) of the Constitution. Therefore, their renomination and any reappointment are unconstitutional. i. Prof. Kithure Kindiki ii. Hon. Alice Wahome iii. Hon. Roselinda Soipan Tuiya iv. Hon. Aden Barre Duale v. Hon. Davis Chirchir vi. Hon. Rebecca Miano vii. Hon. Onesimus Kipchumba Murkomen viii. Hon. Salim Mvurya Mgala ix. Hon. Alfred Nganga Mutua.h.An order prohibiting the nine (9) persons listed below from holding office as Cabinet Secretaries disqualifying them to hold any other office as a State Officers on account of operation of Chapter 6 of the Constitution and specifically Article 75 (3) of the Constitution. i. Prof. Kithure Kindiki ii. Hon. Alice Wahome iii. Hon. Roselinda Soipan Tuiya iv. Hon. Aden Barre Duale v. Hon. Davis Chirchir vi. Hon. Rebecca Miano vii. Hon Onesimus Kipchumba Murkomen viii. Hon. Salim Mvurya Mgala ix. Hon. Alfred Nganga Mutua (sic).i.An Order requiring the President to reconstitute the Cabinet within 21 (twenty-one) days in strict compliance with the Constitution, Article 27 (8), legal principles set out and orders made in Petition 566 of 2015 – Marilyn Muthoni Kamuru & 2 Others v. The Attorney-General and Another and in adherence to the principles of rule of law and good governance.j.Any other prayers this Court deems fit. 30.The 1st Petitioner challenged the nomination and appointment of the 1st, 2nd and 3rd Interested Parties as Cabinet Secretaries on the basis that, at the time of their nomination, they were serving as Members of Parliament and held senior leadership positions within the Orange Democratic Movement (ODM), a political party forming part of the opposition coalition. The 1st Petitioner contended that the appointments undermined the constitutional architecture of Kenya’s multiparty democratic system by effectively incorporating key opposition leaders into the Executive, thereby weakening the capacity of the opposition to perform its constitutional role of holding the Government accountable. It was his case that the appointments diluted the oversight function vested in the National Assembly under Article 95(4)(c) and (5) of the Constitution and diminished the effectiveness of democratic checks and balances contemplated by the Constitution. 31.According to the 1st Petitioner, a vibrant, independent and effective opposition is an indispensable component of Kenya’s constitutional democracy and a necessary safeguard for the realization of the national values and principles of governance set out in Article 10(2), including democracy, good governance, integrity, transparency and accountability. He argued that by appointing senior opposition leaders to Cabinet, the President effectively weakened the institutional capacity of the opposition and thereby undermined the multiparty democratic order established under Article 4(2) of the Constitution. 32.In his view, the appointments risked creating a de facto one-party state, contrary to the constitutional design which envisages political pluralism, robust democratic contestation and effective oversight of the Executive. He further asserted that the constitutional values of democracy and good governance are among the matters protected under Article 255(1)(d) of the Constitution and may only be altered through a referendum. Consequently, he maintained that any executive action that substantially erodes the multiparty democratic framework amounts to a violation of the Constitution. 33.The 1st Petitioner further contended that the actions of the President were inconsistent with the obligations imposed upon the President under Articles 2, 3, 10, 73(1)(a)(i), 131(2) and 132 of the Constitution to respect, uphold and safeguard the Constitution. He argued that the nominations and appointments were undertaken without due regard to the constitutional principles of democratic governance and public accountability and were therefore contrary to the public interest. 34.The 1st Petitioner additionally challenged the re-nomination and subsequent reappointment of the 5th to 14th Interested Parties shortly after their dismissal from Cabinet. He argued that the President had publicly justified the dismissal of the Cabinet on grounds relating to governance, accountability, integrity, performance and responsiveness to the concerns of Kenyans. In those circumstances, the decision to reappoint many of the same individuals to Cabinet within a short period of time was, in his view, irrational, inconsistent and contrary to the constitutional principles of leadership and integrity enshrined in Article 73(2)(a) of the Constitution. He further contended that the reappointments were incompatible with the obligation imposed on the President under Articles 129 and 131(2)(a) to exercise executive authority in a manner that is consistent with the purposes and objects of the Constitution and that serves the people of Kenya. Consequently, he maintained that the nominations and appointments of the 1st to 14th Interested Parties were undertaken in disregard of the Constitution, constitutional values and the broader public interest. 2nd- 6th Petitioners’ case 30.In Nairobi Petition No. E389/2024, the 2nd – 6th Petitioners vide an amended Petition dated 30th September 2024 sought the following orders:a.A declaration that the President has acted in contravention of the Constitution in nominating, appointing and maintaining a Cabinet that does not meet the two-thirds gender requirement under Articles 10 and 27 (8) of the Constitution.b.A declaration that the National Assembly violated the Constitution by accepting and approving nominees for Cabinet positions when it was clear that it would effectively violate the rule of law and specifically Article 27 (8) of the Constitution.c.A declaration that since the Cabinet fails the test of legality under Articles 152 (1), 152 (2) and Article 27 (8), as constituted, the Cabinet is in violation of Article 3 (2) and per Article 2 (4) of the Constitution and is invalid.d.Based on (d) above, any action/decision/policy position/directive/ Gazette notice made by the Cabinet in its corporate state or by the individual Cabinet Secretaries from the date their appointments took effect, that is 7th August 2024 and 20th August 2024, 18th October 2024 and 1st November 2024, 19th December 2024 and 16th January 2025, 26th March 2025 respectively are a nullity in law and of no legal effect.e.An Order directed at the Secretary to the Cabinet restraining him from whatsoever paying any salaries, emoluments or according any benefits to any person appointed as Cabinet Secretary.f.A declaration that the President’s nomination of dismissed Cabinet Secretaries for reappointment without providing reasons to the public for their renomination and reappointment was contrary to Article 35 (3) of the Constitution and Section 5 (1) (c) of the Access to Information Act.g.A declaration that the dismissal of the nine (9) persons listed below as Cabinet Secretaries made them ineligible to be nominated as Cabinet Secretaries on account of the operation of Chapter 6 of the Constitution and specifically Article 75 (3) of the Constitution. Therefore, their renomination and any reappointment are unconstitutional. i. Prof. Kithure Kindiki ii. Hon. Alice Wahome iii. Hon. Roselinda Soipan Tuiya iv. Hon. Aden Barre Duale v. Hon. Davis Chirchir vi. Hon. Rebecca Miano vii. Hon. Onesimus Kipchumba Murkomen viii. Hon. Salim Mvurya Mgala ix. Hon. Alfred Nganga Mutua.h.An order that the prohibiting the nine (9) persons listed below as Cabinet Secretaries disqualified them to hold any other office as a State Officers on account of operation of Chapter 6 of the Constitution and specifically Article 75 (3) of the Constitution. i. Prof. Kithure Kindiki ii. Hon. Alice Wahome iii. Hon. Roselinda Soipan Tuiya iv. Hon. Aden Barre Duale 45 v. Hon. Davis Chirchir vi. Hon. Rebecca Miano vii. Hon Onesimus Kipchumba Murkomen viii. Hon. Salim Mvurya Mgala ix. Hon. Alfred Nganga Mutua.i.An Order requiring the President to reconstitute the Cabinet within 21 (twenty-one) days in strict compliance with the Constitution, Article 27 (8), legal principles set out and orders made in Petition 566 of 2015 – Marilyn Muthoni Kamuru & 2 Others v. The Attorney-General and Another and in adherence to the principles of rule of law and good governance.j.Any other prayers this Court deems fit. 30.This Petition is founded on the grounds set out on its face and is supported by the affidavit of Leah Wangechi Wachira, the Executive Director of the 3rd Petitioner, sworn on the same date. 31.Ms. Wachira deposed that following the nationwide demonstrations against the Finance Bill, 2024, the President declined to assent to the Bill and instead referred it back to Parliament with a recommendation that it be withdrawn in its entirety. She averred that in the aftermath of the demonstrations, and in response to what the President’s described as overwhelming public feedback regarding the responsiveness and performance of Government, the President dismissed all Cabinet Secretaries save for the Prime Cabinet Secretary. According to Ms. Wachira, the President publicly stated that the decision was informed by his commitment to enhancing efficiency, effectiveness, transparency and accountability in public service delivery through a realignment of the Government’s leadership and governance structure. She further stated that the President also revoked the appointment of the Attorney-General pursuant to section 12(1) of the Office of the Attorney-General Act. 32.Ms. Wachira deposed that on 19th July 2024, the President nominated the 5th, 6th, 7th, 8th, 9th, 15th, 16th, 17th, 18th and 19th Interested Parties for appointment as Cabinet Secretaries and nominated the 11th Interested Party for appointment as Attorney-General. Shortly thereafter, the President revised some of the nominations by reassigning the 7th and 8th Interested Parties to the Ministries of Defence and Environment, Climate Change and Forestry, respectively, while withdrawing the nomination of the 11th Interested Party to the office of Attorney-General. She further averred that on 24th July 2024 and 30th July 2024, the President nominated the 1st, 2nd, 3rd, 4th, 10th, 11th, 12th, 13th, 14th, 20th and 21st Interested Parties for appointment as Cabinet Secretaries and nominated the 22nd Interested Party for appointment as Attorney-General. 33.Ms. Wachira stated that following the approval hearings conducted by the National Assembly, the appointments of twenty Cabinet Secretaries and the 22nd Interested Party as Attorney-General were approved on 7th August 2024 and 9th August 2024 respectively, while the nomination of the 21st Interested Party was rejected. She contended that the resultant composition of the Cabinet failed to comply with the constitutional requirement on gender representation. She averred that of the twenty-four persons constituting the Cabinet, seventeen were men, and only seven were women, thereby violating Articles 2(4), 3(1), 10, 27(6) and (8), and 152(1) and (2) of the Constitution. 34.Ms. Wachira further faulted the President for reappointing several Cabinet Secretaries who had previously been dismissed without disclosing the reasons or justification for their reappointment. According to her, having publicly dismissed the Cabinet on grounds relating to governance, accountability and responsiveness to the concerns of Kenyans, the President was under a constitutional obligation to explain the basis upon which some of the same individuals were subsequently reappointed to Cabinet. She contended that the failure to provide such reasons violated the sovereign right of the people to information and accountability in governance and was contrary to Articles 1, 35(3), 73, 75, 129, 152(5) and 153(2) of the Constitution, as well as section 5(1)(c) of the Access to Information Act. 7th and 8th Petitioners’ case 30.In Nairobi Petition No. E397/2024, the 7th and 8th Petitioners herein vide a Petition dated 8th August 2024 sought the following orders:a.A declaration that the conduct of public participation by the National Assembly during the vetting process of the Cabinet secretary nominees fell short of the requirements of the Constitution and the law.b.A declaration that the concerns on integrity raised by the Ethics and Anti-Corruption Commission enjoy normative and consequential importance with regards to any nomination or appointment exercise and as such, cannot be ignored by any decision maker.c.A declaration that any of the Cabinet Secretaries appointed contrary to the advice of the Ethics and Anti-Corruption Commission are unfit to hold office and as such, any such appointments are unconstitutional and illegal.d.A declaration that the National Assembly acted in contravention of the Constitution by not providing to the public beforehand, the criteria that was to be used for the assessment of the candidature of the Cabinet Secretary nominees.e.A declaration that the unilateral rejection of memoranda by the National Assembly without informing the concerned, and in any case without affording the concerned the opportunity to remedy the National Assembly may have had with the petitions is illegal and unconstitutional.f.A declaration that the National Assembly and its respective committees did not conduct proper vetting as required under the Constitution and the law.g.A declaration that the appointments of the 3rd to 21st Interested Parties are illegal and unconstitutional.h.An order for the revocation of the appointments.i.An order for mandamus directing the President to initiate a fresh appointment process in compliance with the Constitution.j.Any other relief deemed fit by the court to uphold the rule of law and constitutionalism. 30.The gravamen of this Petition, as discerned from the supporting affidavit sworn by Davis Malombe, the Secretary to the 8th Petitioner’s Council and its Chief Executive Officer, was that the process leading to the nomination, vetting and appointment of the Cabinet Secretaries failed to satisfy the constitutional threshold of meaningful public participation. He averred that prior to the approval of the 1st to 19th Interested Parties as Cabinet Secretaries, the Committee on Appointments tabled a report dated 7th August 2024, indicating that it had received 813 memoranda from members of the public regarding the suitability of the nominees. However, 656 of those memoranda were rejected on the basis that they had not been submitted on oath as required under the Public Appointments (Parliamentary Approval) Act. According to Mr. Malombe, the exclusion of such a significant number of public submissions substantially curtailed public participation and undermined the objective of ensuring meaningful citizen involvement in the approval process. 31.Mr. Malombe further deposed that although the National Assembly had invited members of the public to submit views on the nominees, the criteria and parameters that would be applied in assessing the suitability of the candidates were not disclosed in advance. Consequently, members of the public were deprived of the information necessary to effectively evaluate the nominees and to make informed representations to the Committee on Appointments. In his view, the absence of clear and publicly available evaluation criteria rendered the public participation exercise opaque and significantly impaired the ability of citizens to contribute meaningfully to the vetting process. 32.He further challenged the nomination, vetting and eventual appointment of the 4th Interested Party, contending that the process proceeded notwithstanding concerns that had allegedly been raised by the Ethics and Anti-Corruption Commission regarding the nominee’s suitability for public office. He asserted that the approval of the nominee in the face of those concerns undermined the constitutional principles of integrity, accountability and transparency and diminished public confidence in the vetting process and in the institutions charged with safeguarding ethical standards in public service. According to Mr. Malombe, the appointment eroded public trust in the Government and was inconsistent with the constitutional values and principles of governance set out in Article 10 of the Constitution. 9th – 11th Petitioners’ case 30.In Nairobi Petition No. E405/2024, the 9th – 11th Petitioners vide an amended Petition dated 22/8/2024 seek orders:a.Declaring as invalid the nomination, by H.E. the President, of the 3rd to 23rd interested parties (the 1st -19th, 21st and 22nd Interested Parties herein) for approval, by the National Assembly, for appointment as members of the national executive of the Republic.b.Declaring as invalid the approval by the National Assembly for the 3rd to 23rd interested parties (the 1st -19th, 21st and 22nd Interested Parties herein) to be appointed as members of the cabinet of the Republic.c.Declaring as invalid the appointment, by H.E. the President vide Kenya Gazette Notice Nos. 13033/2022 dated 26.10.2022, 9622/2024 dated 07.08.2024 and 10346 and 10347 dated 19.08.2024 of the 2nd to 23rd interested parties (the 1st -19th, 21st, 22nd and 28th Interested Parties herein), as members of the CABINET of the Republic of Kenya.d.Quashing the Kenya Gazette Notice Nos. 13033/2022 dated 26.10.2022, 9622/2024 dated 07.08.2024 and 10346 and 10347 dated 19.08.2024 in their entirety.e.Declaring statutory requirements that statements contesting approval of persons, nominated for appointment as State or public officers by Parliament and county assemblies shall be on oath, unconstitutional, null and void.f.Requiring parties in these proceedings to meet their costs.g.Any such other orders or directions that this Honourable Court may deem just and fit to grant to meet the exigencies of justice and the requirements of the Constitution of Kenya, 2010. 46.The crux of this Petition was that the nomination and subsequent appointment of the 22nd Interested Party as Attorney-General was unconstitutional, unlawful and invalid. The 9th –11th Petitioners contended that the appointment was made solely at the discretion of the President and was not preceded by a process founded on fair competition and merit as required by the Constitution. In their view, the office of Attorney-General, being a critical constitutional office, ought to have been filled through a transparent, competitive and merit-based process. They therefore asserted that the nomination and appointment of the 22nd Interested Party violated Articles 2(1), (2) and (4), 10(2)(a)-(c), 54, 56, 57, 73, 74, 94(4), 95(1), (2) and (5), 156(3), 157(3), 166(2), (3) and (5), and 232(1)(g) of the Constitution. 47.The Petitioners further contended that the composition of the national Executive failed to comply with the constitutional requirement that not more than two-thirds of the members of an appointive body be of the same gender. They asserted that the resultant Cabinet was disproportionately male and therefore contravened Articles 10(2), 27(8), 28, 54(2), 55 and 130(2) of the Constitution. Relatedly, they argued that the President had failed to ensure adequate representation of persons with disabilities in the national Executive. According to the Petitioners, the omission to nominate at least two persons with either visible or invisible disabilities to the Cabinet violated the constitutional guarantees of equality, dignity, inclusivity and non-discrimination contained in Articles 19, 20(1) and (2), 21(1) and (3), 27, 28 and 54 of the Constitution. 48.The Petitioners also challenged the reappointment of several Cabinet Secretaries who had previously been dismissed by the President following the dissolution of the Cabinet in July 2024. They maintained that, having publicly justified the dismissal of the Cabinet on grounds relating to governance, accountability and responsiveness to public concerns, the President could not lawfully reappoint many of the same individuals to the Cabinet without explaining the basis for such reappointments. In their view, the reappointments were inconsistent with the constitutional principles of accountability, integrity and good governance and violated Articles 132(2)(a) and (b) and 152(5)(b) of the Constitution. 49.The Petitioners additionally objected to the appointment of several Interested Parties to the national Executive on the ground that they were serving members or senior officials of opposition political parties at the time of their nomination. They contended that the appointments of the 1st, 3rd, 11th, 13th and 22nd Interested Parties undermined the constitutional architecture of Kenya’s multiparty democratic system by weakening the institutional independence and effectiveness of the opposition. According to the Petitioners, the United Democratic Alliance (UDA) and its coalition partners within the Kenya Kwanza Alliance were political competitors of the Orange Democratic Movement (ODM) and its coalition partners within the Azimio la Umoja One Kenya Coalition. They noted that several nominees occupied senior leadership positions within ODM, including positions as Minority Leader, Chairperson, Vice-Chairpersons and members of key party organs, at the time they were nominated for Cabinet appointments. It was therefore their case that the appointments diluted the distinction between Government and opposition, weakened democratic accountability, and violated Articles 1, 2, 3, 10, 90, 94(4), 95(1), (2) and (5), 97, 108, 130, 132, 152 and 259(1) of the Constitution. 50.Furthermore, the Petitioners challenged the approval process conducted by the National Assembly. They contended that the vetting exercise was not a genuine scrutiny of the nominees but rather a procedural formality designed to endorse decisions already made by the Executive. In their view, the Committee on Appointments and the National Assembly failed to undertake an independent and rigorous evaluation of the nominees’ suitability, qualifications and integrity. Consequently, they characterized the approval process as a mere rubber-stamping exercise that fell short of the constitutional oversight role vested in Parliament under Articles 94(4), 95(1), (2) and (5), and 232 of the Constitution. D. Respondents’ Case 51.The Respondents opposed the consolidated petitions and maintained that the impugned nominations, approvals and appointments were undertaken strictly in accordance with the Constitution, the Public Appointments (Parliamentary Approval) Act, and the National Assembly Standing Orders. They contended that the petitions were premature, speculative, and invited the Court not to improperly intrude into functions constitutionally vested in the Executive and Parliament. The Respondents further asserted that the petitions offended the doctrines of separation of powers, ripeness, exhaustion and constitutional avoidance, and in some instances raised issues that had either been overtaken by events or were the subject of parallel proceedings before courts of competent jurisdiction.a.Response from the 2nd and 4th Respondents (Speaker of the National Assembly and the National Assembly) 52.The 2nd and 4th Respondent, opposed the various petitions through several pleadings filed both in the individual petitions and in the consolidated proceedings. Their case was presented principally through a Notice of Preliminary Objection, Grounds of Opposition and Replying Affidavits sworn by the Clerk of the National Assembly, Mr. Samuel Njoroge, on behalf of the Speaker and the National Assembly. Their collective position was that the nomination, vetting and approval of Cabinet Secretary nominees was undertaken strictly in accordance with the Constitution, the Public Appointments (Parliamentary Approval) Act and the National Assembly Standing Orders, and that the Court ought not interfere with a constitutional process lawfully entrusted to Parliament. Notice of Preliminary Objection dated 29th July 2024 53.The first pleading filed on behalf of the Speaker of the National Assembly was the Notice of Preliminary Objection dated 29th July 2024. The objection was raised by the 2nd Respondent against both the Petition and the application for conservatory orders dated 26th July 2024. 54.The Speaker contended that the Court lacked jurisdiction to entertain the petition insofar as it sought to halt or interfere with the parliamentary approval process established under Article 152(2) of the Constitution and the Public Appointments (Parliamentary Approval) Act. It was argued that the Constitution had expressly assigned the function of vetting and approving Cabinet Secretary nominees to the National Assembly and that judicial intervention at that stage would amount to an impermissible intrusion into Parliament's constitutional mandate. The Speaker further invoked the doctrines of separation of powers, parliamentary privilege and immunity, ripeness and judicial deference to Parliament. Reliance was placed on the principles articulated by the Supreme Court in Justus Kariuki Mate & Another v Martin Nyaga Wambora & Another [2017] eKLR, to the effect that courts ought to exercise restraint when invited to interfere with ongoing parliamentary proceedings. The 2nd Respondent therefore sought the dismissal of both the petition and the application with costs. Replying Affidavit dated 23rd October 2024 55.The principal factual response on behalf of the Speaker was contained in the Replying Affidavit sworn on 23rd October 2024 by Samuel Njoroge, the Clerk of the National Assembly, who deponed that he was duly authorised by the Speaker to swear the affidavit. 56.The affidavit traced the entire process leading to the approval of the Cabinet Secretary nominees. Mr. Njoroge explained that by letters dated 22nd and 24th July 2024, the President forwarded the names of twenty nominees to the Speaker for approval pursuant to Article 152(2) of the Constitution and sections 3 and 5 of the Public Appointments (Parliamentary Approval) Act. Upon receipt of the nominations, the Speaker formally communicated them to the House and referred the nominees and their curriculum vitae to the Committee on Appointments in accordance with the Act and the Standing Orders. 57.Mr. Njoroge asserted that the Committee on Appointments was lawfully seized of the nominations and was directed to conduct approval hearings and report to the House within the statutory timelines prescribed under the Act. The Speaker also directed that the public and the nominees be informed of the dates, venue and procedures for the approval hearings. 58.A substantial portion of the affidavit was devoted to demonstrating compliance with the constitutional requirement of public participation. Mr. Njoroge averred that the National Assembly widely publicised the impending approval hearings through newspaper advertisements, notices on Parliament's website, Parliament's official social media platforms and other public communication channels. Members of the public were invited to submit memoranda, affidavits and supporting documentation contesting or supporting the suitability of any nominee. The public was notified of the dates, venues and timelines for the hearings and was afforded an opportunity to present relevant information for consideration by the Committee. The approval hearings themselves were broadcast live and were accessible to the public through television, YouTube and Parliament's social media platforms. 59.The affidavit further detailed the dates on which each nominee appeared before the Committee on Appointments and maintained that all nominees were subjected to the approval process contemplated by the Constitution and the statute. The Committee thereafter prepared its report and tabled it before the National Assembly for debate and determination. The House subsequently voted on the nominees and approved them for appointment as Cabinet Secretaries. 60.Mr. Njoroge consequently argued that several of the reliefs sought in the petitions had been overtaken by events. In particular, the prayers seeking to prohibit vetting, approval or appointment of the nominees had become spent because the approval process had already been concluded and the appointments completed. The Speaker therefore, maintained that those prayers could no longer be granted. Grounds of Opposition dated 19th September 2024 62.The National Assembly and the Speaker also filed Grounds of Opposition dated 19th September 2024. In those grounds, they raised a jurisdictional objection based on the doctrine of sub judice. They contended that the petitions challenged the constitutionality and legality of the nomination, vetting, approval and subsequent appointment of Cabinet Secretaries and that substantially similar issues had already been raised in a number of pending constitutional petitions before courts of competent jurisdiction, including Nairobi Constitutional Petition Nos. E364, E381, E389, E397, E403, E405 and E422 of 2024. 63.According to the Speaker and the National Assembly, the issues, factual allegations and reliefs sought in the petitions substantially overlapped with those pending matters and therefore offended section 6 of the Civil Procedure Act. They consequently urged the Court to decline to entertain the petitions on account of the sub judice rule. 64.The Grounds of Opposition further asserted that the National Assembly had lawfully discharged its constitutional mandate under Article 152(2) of the Constitution and the Public Appointments (Parliamentary Approval) Act. It was contended that the approval process fully complied with Articles 10 and 118 of the Constitution, section 6(4) of the Act and the National Assembly Standing Orders. The respondents maintained that adequate public participation, transparency and accountability were achieved throughout the approval process and that the Court had no basis for impugning Parliament's decision. They therefore urged the Court to dismiss the petitions for want of merit. 65.Taken together, the case advanced by the Speaker of the National Assembly and the National Assembly was that Parliament acted strictly within the constitutional framework governing the approval of Cabinet Secretaries. Their position was that the President's nominations were properly transmitted to Parliament; the Committee on Appointments lawfully conducted approval hearings; extensive public participation was facilitated through advertisements, memoranda, media broadcasts and public access to the proceedings; the Committee considered all relevant material and reported to the House; and the National Assembly subsequently debated and approved the nominees in accordance with Article 152(2) of the Constitution and the Public Appointments (Parliamentary Approval) Act. They further contended that the petitions were either barred by jurisdictional doctrines such as separation of powers and sub judice, or had been overtaken by events because the approval and appointment processes had already been completed. Accordingly, they urged the Court to dismiss the petitions and uphold the actions of Parliament as constitutional, lawful and procedurally proper. The 3rd Respondent’s case (The Attorney-General) 66.The Attorney-General opposed the various petitions through a series of Preliminary Objections and Grounds of Opposition filed in the individual petitions and later in the consolidated proceedings. The Attorney-General did not principally rely on factual affidavits but instead advanced a comprehensive legal defence founded on presidential immunity, separation of powers, parliamentary autonomy, exhaustion of statutory mechanisms, sub judice, justiciability, progressive realization of constitutional principles, and the constitutional qualifications of the nominees. The Attorney-General's position throughout was that the nominations, vetting, approval and appointment of Cabinet Secretaries and the Attorney-General were undertaken within the constitutional framework and that the petitions either prematurely invited judicial intervention into an ongoing constitutional process or sought to challenge decisions that had already been completed through constitutionally prescribed procedures. Notice of Preliminary Objection dated 3rd August 2024 67.The Attorney-General filed a Notice of Preliminary Objection dated 3rd August 2024 in Malindi Constitutional Petition No. E015 of 2024. In that objection, the Attorney-General contended that the petition and accompanying application were premature, fatally defective and misconceived because they improperly joined the President of the Republic of Kenya as a party contrary to Articles 131 and 143(2) of the Constitution, which confer constitutional immunity upon the President in respect of proceedings instituted against him while in office. The Attorney-General further argued that the Court lacked jurisdiction to interfere with an ongoing nomination and approval process that had already commenced pursuant to Articles 131 and 152 of the Constitution. According to the Attorney-General, the Constitution had assigned the nomination function to the President and the vetting and approval function to the National Assembly, and the Court ought not to interrupt that constitutional process before its completion. 68.The Attorney-General also invoked the doctrines of exhaustion and constitutional avoidance. It was argued that questions regarding the suitability of nominees were matters entrusted in the first instance to the National Assembly during the vetting process and that any grievances should first be presented before the Committee on Appointments. The Attorney-General maintained that the petitions were speculative, premature and non-justiciable because the petitioners had not allowed the constitutionally established approval process to run its course. The Attorney-General further asserted that the petitions failed to satisfy the precision requirement established in Anarita Karimi Njeru v Republic and sought transfer and consolidation of the various pending petitions in Nairobi to avoid conflicting decisions. Grounds of Opposition 69.The Attorney-General filed several Grounds of Opposition dated 3rd August 2024, 27th September 2024, 7th October 2024 and 16th May 2025. Collectively, these grounds challenged both the competence of the petitions and the substantive constitutional claims advanced by the petitioners. 70.The Attorney-General consistently maintained that the President had been improperly joined to the proceedings in light of the immunity conferred by Article 143(2) of the Constitution and that the Court ought to exercise restraint in relation to functions constitutionally entrusted to the Executive and Parliament. It was contended that the nomination of Cabinet Secretaries and the Attorney-General by the President, and their vetting and approval by the National Assembly, were constitutionally prescribed processes under Articles 131, 152 and 156 of the Constitution, which should be allowed to run their course without premature judicial intervention. 71.The Attorney-General further argued that several of the petitions were incompetent, premature or otherwise barred by established constitutional doctrines. It was contended that many of the issues raised were either overtaken by events, rendered non-justiciable by the doctrines of ripeness, constitutional avoidance and exhaustion, or fell within the doctrine of sub judice because substantially similar challenges concerning the dismissal of the former Cabinet, the nomination, vetting, approval and appointment of Cabinet Secretaries were already pending before courts of competent jurisdiction in various constitutional petitions. The Attorney-General therefore urged the Court to decline parallel adjudication of matters already awaiting determination elsewhere. 72.The Attorney-General also challenged the sufficiency of the pleadings, maintaining that the petitioners had failed to plead constitutional violations with the precision required in constitutional litigation and had not demonstrated, through cogent evidence, the manner in which the impugned nominations, approvals or appointments contravened the Constitution. The petitions were described as speculative, unsupported by evidence and incapable of sustaining the reliefs sought. 73.On the substantive constitutional questions, the Attorney-General maintained that the constitutional requirements relating to public participation, gender representation, leadership and integrity, qualifications for office and access to information had either been complied with or misconstrued by the petitioners. Regarding public participation, it was argued that the Constitution does not require unanimity or acceptance of all public views, but only a reasonable opportunity for participation, adequate dissemination of information and meaningful engagement. The Attorney-General contended that public participation must be assessed on the basis of effectiveness rather than any rigid formula and that constitutional institutions retain discretion in designing appropriate participatory mechanisms. 74.With respect to appointments, the Attorney-General asserted that the offices of Cabinet Secretary and Attorney-General are unique constitutional offices whose appointment is governed by specific constitutional provisions. It was argued that the petitioners had erroneously invoked constitutional and statutory provisions applicable to the public service generally, while overlooking the distinct constitutional framework governing these offices. The Attorney-General further maintained that none of the nominees was constitutionally disqualified from appointment. In particular, it was contended that Article 75(3) only bars persons who have been removed or dismissed from office for specified constitutional violations and that none of the nominees had been found by a competent authority to have violated Articles 75, 76, 77 or 78 of the Constitution or been removed from office on that basis. 75.The Attorney-General also rejected challenges founded on political affiliation, contending that the Cabinet is a national institution intended to serve all Kenyans irrespective of political persuasion and that the inclusion of individuals drawn from diverse political backgrounds promoted national unity, inclusiveness and broad-based governance rather than undermining constitutional principles. 76.On the issue of gender representation, the Attorney-General argued that the two-thirds gender principle is a constitutional objective whose realization is progressive in nature and not an immediately enforceable mathematical requirement in the composition of the Cabinet. It was further contended that women occupied a significant number of Cabinet-level positions, representing the highest level of female representation in Kenya's history, and that allegations of discrimination were therefore unfounded. 77.Concerning Chapter Six of the Constitution, the Attorney-General maintained that the petitioners had bypassed the statutory enforcement mechanisms established under the Ethics and Anti-Corruption Commission Act and the Leadership and Integrity Act. It was therefore argued that the claims founded on integrity and ethical leadership were barred by the doctrines of exhaustion and ripeness, as the petitioners had failed to invoke the institutions and procedures specifically created by Parliament for the investigation and enforcement of leadership and integrity standards. Similarly, it was contended that no violation of the right of access to information under Article 35 had been demonstrated. 78.In summary, the Attorney-General's grounds of opposition were anchored on the propositions that the President's nomination powers and Parliament's approval powers are constitutionally protected functions warranting judicial restraint; that several of the petitions were barred by constitutional immunity, sub judice, exhaustion, ripeness and constitutional avoidance doctrines; that the petitioners had failed to plead and prove constitutional violations with the requisite precision; and that the constitutional requirements relating to public participation, gender representation, leadership and integrity, qualifications for office and access to information had either been satisfied or had been incorrectly interpreted by the petitioners. Accordingly, the Attorney-General urged the Court to uphold the validity of the impugned nominations, approvals and appointments and to dismiss the consolidated petitions. E. Interested Parties’ Case 79.The Interested Parties generally opposed the petitions and defended the constitutionality of the nominations, vetting, approval and eventual appointment of Cabinet Secretaries and the Attorney-General. Their responses were filed through a combination of replying affidavits, preliminary objections and grounds of opposition. While individual Interested Parties emphasized different aspects of the dispute, their case largely converged around five principal themes: first, that the petitions were premature because the constitutional approval process had not been completed; second, that the Court ought to exercise judicial restraint and respect the constitutional mandates of the President and Parliament; third, that the petitions raised non-justiciable political questions; fourth, that the nominees satisfied the constitutional requirements for appointment; and fifth, that the allegations relating to integrity, political affiliation, public participation and representation lacked factual and legal foundation. Replying Affidavit of the 1st Interested Party (James Opiyo Wandayi) dated 31st July 2024" 80.The 1st Interested Party, Hon. James Opiyo Wandayi, filed a Replying Affidavit dated 31st July 2024 opposing the Petition. The affidavit was sworn by James Opiyo Wandayi, who had at the time been nominated for appointment as Cabinet Secretary. 81.Hon. Wandayi's response focused on the Petitioner's contention that his nomination undermined Kenya's multiparty democracy because he was serving as the Leader of the Minority in the National Assembly. He contended that the office of Leader of the Minority is an institutional office established under Article 108(3) of the Constitution and not an office held in perpetuity by any particular individual. Accordingly, the vacancy of that office upon his appointment would not destroy or undermine the opposition's constitutional role because the office would simply be filled by another eligible member of the minority coalition. 82.Hon. Wandayi further argued that a Cabinet Secretary-designate remains merely a nominee until the completion of the constitutional process involving vetting, approval, gazettement and swearing-in. He maintained that a nomination is not synonymous with appointment and therefore allegations that his nomination violated Articles 77(2) and 152(3) of the Constitution were premature and legally untenable. He emphasized that upon appointment a Cabinet Secretary automatically ceases to hold any parliamentary office and any political party office, thereby curing any alleged incompatibility. 83.He also argued that the Petition was speculative because Parliament had not yet undertaken its constitutional vetting role. In his view, the Petition sought to pre-empt a constitutionally mandated process and deprived Parliament of the opportunity to evaluate his suitability. He characterized the Petitioner's allegations regarding the destruction of multiparty democracy as exaggerated, speculative and unsupported by evidence. He maintained that constitutional safeguards existed to preserve the role of the opposition and that his nomination could not be equated with the collapse of Kenya's democratic architecture. Preliminary Objection by the 1st Interested Party (James Opiyo Wandayi) dated 12th August 2024 84.The 1st interested party, Hon. James Opiyo Wandayi, subsequently filed a Notice of Preliminary Objection dated 12th August 2024. The Preliminary Objection challenged the Court's jurisdiction to entertain the petition. It was contended that the Court lacked jurisdiction to direct or supervise the work of the National Assembly's Committee on Appointments because doing so would amount to substituting judicial discretion for parliamentary discretion. The Interested Party argued that the Constitution had expressly vested the vetting and approval function in Parliament and that judicial intervention before completion of that process would offend the separation of powers doctrine. 85.The Preliminary Objection further raised the doctrine of sub judice. It was argued that substantially similar issues concerning the nomination and appointment of Cabinet Secretaries were already pending before various courts in Nairobi and Malindi, including Constitutional Petitions E015, E363 and E364 of 2024. The Interested Party therefore contended that the proceedings constituted an abuse of the court process and ought to be struck out. Replying Affidavit of the 24th and 26th Interested Parties dated 8th August 2024 86.The 24th Interested Party (Transparency International Kenya) and the 26th Interested Party (Inuka Kenya Na Sisi) took a markedly different position from the Cabinet Secretary nominees. They filed a Replying Affidavit sworn by Sheila Masinde, the Executive Director of Transparency International Kenya. 87.Unlike the Cabinet Secretary nominees, these Interested Parties supported the Petition. They contended that the nomination, vetting and approval process violated constitutional requirements relating to public participation, accountability, leadership and integrity. According to the affidavit, the National Assembly failed to objectively vet the nominees and abdicated its constitutional oversight role. It was alleged that Parliament conducted the vetting process in a superficial manner and failed to adequately address concerns raised by members of the public regarding integrity and suitability. 88.The 24th and 26th Interested Parties argued that the process violated Articles 1, 3, 10, 73, 75 and 152 of the Constitution. They maintained that sovereign power belongs to the people and that the Constitution requires meaningful public participation and accountability in public appointments. They further contended that Chapter Six of the Constitution imposes substantive obligations on both appointing authorities and vetting bodies and that those standards had not been adequately applied in the vetting process. 89.The affidavit expressly supported the Petitioners' position that the process of nomination, vetting and appointment failed to satisfy constitutional standards and warranted judicial intervention. Accordingly, Transparency International Kenya and Inuka Kenya Na Sisi urged the Court to allow the Petition. Grounds of Opposition of the 6th, 10th and 11th Interested Parties dated 17th March 2025 90.The 6th Interested Party, Alice Wahome, 10th Interested Party, Salim Mvurya and 11th Interested Party, Rebecca Miano filed Grounds of Opposition dated 17th March 2025 opposing the Amended Petition. 91.These Interested Parties mounted one of the most comprehensive legal defences of the appointments. They argued that Articles 132(2)(a), 135 and 152 of the Constitution allocate nomination and appointment powers to the President and approval powers to Parliament. Consequently, the dispute raised a non-justiciable political question and fell outside the Court's proper constitutional role. Reliance was placed on doctrines of separation of powers, judicial restraint, constitutional avoidance, proportionality and justiciability. They argued that courts should not transform themselves into super-legislatures or super-executives by second-guessing political and policy choices constitutionally entrusted to elected branches of government. 92.The Interested Parties further contended that the Petition failed the precision threshold established in Anarita Karimi Njeru v Republic because it did not clearly identify constitutional violations or demonstrate how the impugned actions breached the Constitution. They maintained that the President and Parliament acted within their constitutional mandates and that the Petition disclosed no legally cognizable constitutional controversy. 93.They also relied heavily on separation of powers jurisprudence, including authorities such as Mumo Matemu, Martin Nyaga Wambora, Nixon v United States and Moses Masika Wetang'ula & Another v Musikari Nazi Kombo. They argued that courts should be slow to interfere with decisions falling within the constitutional domain of Parliament and the Executive. In their view, judicial review of Cabinet appointments should only occur where there is a clear, gross and irrefutable constitutional violation. 94.With respect to the reappointment of former Cabinet Secretaries, the Interested Parties argued that Article 152(5)(a) expressly permits the President to reassign Cabinet Secretaries and that previous service in Cabinet does not disqualify a nominee from reappointment. They emphasized that Article 75 only bars persons removed from office for specified constitutional violations and that none of the nominees had been removed on such grounds. Consequently, they remained fully eligible for public office. 95.The Interested Parties further argued that allegations regarding integrity and Chapter Six violations were unsupported by evidence. They invoked the presumption of innocence under Article 50(2)(a) and contended that no nominee had been convicted of any offence or found by a competent body to have violated constitutional integrity standards. The petitioners, they argued, were effectively inviting the Court to impose disqualifications unsupported by law. 96.On the issue of gender and inclusivity, they contended that constitutional principles relating to gender representation and inclusion should be interpreted holistically and contextually rather than mechanically. They argued that progress toward inclusivity must be balanced against considerations of competence, merit and national representation. F. Petitioners’ Submissions 2nd and 6th Petitioners’ submissions 97.The 2nd – 6th Petitioners vide their submissions dated 31st October 2025, challenged the legality and constitutionality of the reconstituted Cabinet appointed by President William Ruto following the dissolution of the Cabinet in July 2024. 98.Their case is founded on the argument that the President and the National Assembly acted in blatant violation of the Constitution when nominating, vetting, approving and appointing members of the Cabinet. They contend that the impugned appointments violated the two-thirds gender principle under Article 27(8) of the Constitution, disregarded binding court orders, infringed the constitutional right to access information under Article 35(3), and resulted in the reappointment of persons who were constitutionally ineligible to hold office following their dismissal. They therefore invite the Court to declare the entire Cabinet unconstitutional and invalid. 99.The Petitioners trace the genesis of the dispute to the nationwide protests against the Finance Bill, 2024. They submitted that, following widespread public dissatisfaction with the Government, the President publicly acknowledged the concerns of Kenyans and, through Gazette Notice No. 8440 and a presidential statement dated 11th July 2024, dismissed the Attorney-General and all Cabinet Secretaries save for the Prime Cabinet Secretary. 100.According to the Petitioners, the President justified the dismissals on grounds of enhancing efficiency, accountability, responsiveness, transparency and public confidence in Government. However, barely days later, the President proceeded to renominate and reappoint several of the same Cabinet Secretaries whom he had dismissed. The Petitioners argue that this volte-face lies at the centre of the constitutional challenge before the Court. 101.The first major issue raised by the Petitioners concerned the violation of the two-thirds gender principle under Article 27(8) of the Constitution. They argued that the Cabinet, as ultimately constituted, comprised eighteen men and only seven women, thereby exceeding the constitutional ceiling that no more than two-thirds of members of an appointive body should be of the same gender. They contend that the Cabinet is a State organ established under Article 152 and therefore falls squarely within the ambit of Article 27(8). The President, being the appointing authority, was under a constitutional obligation under Articles 3, 21 and 27 to ensure compliance with the gender rule before forwarding nominees to Parliament. Instead, he repeatedly failed to take available opportunities to remedy the gender imbalance, including when vacancies arose after the office of Deputy President became vacant and when subsequent Cabinet reshuffles were undertaken. The Petitioners particularly criticized the nomination of Prof. Kithure Kindiki to the office of Deputy President rather than appointing a woman, arguing that such a decision squandered an opportunity to bring the Cabinet closer to constitutional compliance. They further point to the replacement of female Cabinet Secretaries with male nominees as evidence of deliberate regression in gender representation. 102.The Petitioners submit that the National Assembly was equally culpable in violating the Constitution. They argue that Article 152(2), Article 124(4) and section 7 of the Public Appointments (Parliamentary Approval) Act impose upon Parliament a duty to conduct rigorous scrutiny of all nominees before approval. Parliament was required to examine not only the qualifications of the nominees but also whether the nomination process itself complied with constitutional requirements. According to the Petitioners, Parliament ignored the obvious constitutional deficiency in the gender composition of the Cabinet and proceeded to approve nominees despite knowing that their appointment would entrench an unconstitutional Cabinet. They rely heavily on Marilyn Muthoni Kamuru & 2 Others v Attorney General & Another [2016] KEHC 8370 (KLR) and Okiya Omtatah Okoiti & Another v Public Service Commission & 73 Others [2021] KEHC 464 (KLR), where the High Court emphasized that parliamentary vetting is not a cosmetic exercise but a substantive constitutional safeguard. The Petitioners argue that Parliament failed in its oversight role and thereby facilitated a violation of Article 27(8). 103.The Petitioners further contended that the failure to comply with the gender rule amounted not merely to a technical constitutional violation but to a substantive infringement of women’s rights to equality and freedom from discrimination under Article 27. They undertook an extensive historical analysis of the constitutional review process, tracing the origins of Article 27(8) to the recommendations of the Constitution of Kenya Review Commission (CKRC), the Bomas process and the Committee of Experts. They submitted that affirmative action provisions were deliberately incorporated into the Constitution to redress the historical marginalisation and exclusion of women from governance structures. The two-thirds gender principle was therefore intended as a minimum constitutional guarantee rather than an aspirational target. Consequently, the President’s failure to comply with that requirement undermines the very purpose of the Constitution and perpetuates historical inequalities that the Constitution sought to eradicate. The Petitioners further invoke Kenya’s obligations under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), arguing that the Constitution must be interpreted consistently with international commitments to gender equality. 104.A second central plank of the Petitioners’ case is that the impugned appointments violate the constitutional values of the rule of law and good governance under Article 10. They submit that both the President and Parliament are constitutionally bound to obey and uphold the Constitution. The President, by virtue of Articles 129 and 131 and his oath of office, bears a heightened obligation to respect, uphold and safeguard the Constitution. Similarly, Parliament derives its authority from the Constitution and is required to protect constitutional governance. The Petitioners argued that these obligations were breached when both institutions knowingly approved and implemented appointments that violated Article 27(8). They relied on the Supreme Court’s decision in Raila Odinga & Another v IEBC & Others [2017] KESC42 (KLR), where the Court underscored the centrality of fidelity to the Constitution and the rule of law. 105.The Petitioners additionally argued that the Respondents violated the rule of law by disobeying binding court orders. They relied on the Marilyn Muthoni Kamuru case (supra), where the Court expressly declared that the President and the National Assembly had violated Article 27(8) by maintaining a Cabinet that failed to meet the gender threshold. They emphasize that those declarations were never overturned on appeal and therefore remain binding. In their view, the reconstitution of a Cabinet suffering from the same constitutional defect constitutes a deliberate disregard of a subsisting court judgment and undermines the authority of the judiciary. They cited Teachers Service Commission v Kenya National Union of Teachers & 2 Others [2013] eKLR for the proposition that court orders are not suggestions but binding commands that must be obeyed. Accordingly, they submitted that the entire Cabinet is invalid for violating both Article 27(8) and the binding orders of the High Court. 106.The third major issue concerned the right to access information under Article 35(3). The Petitioners contended that after dismissing the Cabinet on grounds of poor performance, public dissatisfaction and the need for responsive governance, the President was constitutionally obliged to explain to Kenyans why he later reappointed several of the same individuals. They argued that while the President publicly disclosed reasons for dismissing the Cabinet, he failed to provide any reasons whatsoever for the subsequent reappointments. This omission, they submit, violated the State’s constitutional duty to proactively publish and publicize information affecting the nation. They further argued that such information was necessary for meaningful public participation during the parliamentary vetting process because citizens could not effectively comment on the suitability of the nominees without understanding why they had first been removed and then reinstated. The Petitioners relied on Article 35(3), section 5(1)(c) of the Access to Information Act, Mohamed Ali Baadi & Others v Attorney General & Others and Mue v IEBC, which recognize that the State bears a positive obligation to proactively disclose information of public importance even in the absence of a formal request. The Petitioners, therefore, submitted that the President’s silence regarding the rationale for reappointing dismissed Cabinet Secretaries constituted an infringement of the constitutional right to information. 107.The Petitioners also rejected the Respondents’ attempts to justify the alleged violations under Article 24 of the Constitution. They argued that no evidence has been placed before the Court to demonstrate that limiting women’s rights to equal representation or limiting the public’s right to information was reasonable or justifiable in an open and democratic society. They further submit that the Attorney-General’s reliance on the Supreme Court’s advisory opinion on progressive realisation of the gender principle is misplaced because that opinion concerned elective offices and not appointive positions such as the Cabinet. Relying once again on the Marilyn Muthoni Kamuru case (supra), they maintained that compliance with the two-thirds gender principle in appointive offices is immediately enforceable and not subject to progressive realization. They therefore contended that the Respondents had failed to discharge the burden imposed by Article 24(3) of the Constitution. 108.The Petitioners also argued that several Cabinet Secretaries were constitutionally ineligible for reappointment after having been dismissed from office. They relied on Articles 73 and 75 of the Constitution, which establish principles of leadership and integrity and provide for disqualification from holding State office in certain circumstances. According to the Petitioners, the President’s own reasons for dismissing the Cabinet demonstrated that the Cabinet Secretaries had failed to meet constitutional standards of accountability, responsiveness and public confidence. Having dismissed them on that basis, the President could not lawfully turn around and reappoint them without first explaining how those concerns had been addressed. They submitted that Article 75(3), read together with Articles 73, 152 and 153, renders such persons ineligible for reappointment. At the very least, they argued that the President was required to provide a clear justification demonstrating that the reappointed individuals satisfied the constitutional standards of leadership and integrity. His failure to do so, they contended, raises a reasonable inference that the reappointed Cabinet Secretaries were constitutionally disqualified from holding office. 109.In conclusion, the 2nd -6th Petitioners urged the Court to find that the nomination, vetting, approval and appointment of the Cabinet violated Articles 10, 27, 35, 73 and 75 of the Constitution. They sought declarations that the Cabinet is unconstitutional and invalid, that the President and National Assembly acted in violation of the Constitution, and that the reappointment of previously dismissed Cabinet Secretaries was unlawful. They further invited the Court to enforce the two-thirds gender principle strictly and to vindicate the constitutional values of equality, accountability, transparency, the rule of law and good governance. 7th and 8th Petitioners’ submissions 110.The 7th and 8th Petitioners filed written submissions dated 25th June 2025. Their case was founded on Articles 1, 2, 3, 10, 23, 27, 28, 41, 73, 75, 132, 152, 159, 201, 232, 258 and 259 of the Constitution, together with the Leadership and Integrity Act and the Public Officer Ethics Act. 111.The Petitioners challenged the constitutionality of the nomination, vetting, approval and subsequent appointment of Cabinet Secretaries following the reconstitution of Cabinet in August 2024. They argued that the entire process failed to meet the constitutional standards of integrity, accountability, transparency, public participation and rational decision-making envisaged under the Constitution. 112.Counsel submitted that the Constitution 2010 represents a transformative and prescriptive constitutional order that fundamentally departed from Kenya's previous constitutional framework. Reliance was placed on the Supreme Court decision in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others, Petition No. 4 of 2012, particularly the separate opinion of Mutunga CJ, wherein the Court observed that the Constitution is a radical document intended to transform Kenya's governance structures, entrench constitutional values and replace the former culture of executive dominance with a constitutional order founded on accountability, human rights, integrity and democratic governance. Counsel argued that the Court must therefore interpret constitutional provisions relating to public appointments through a transformative constitutional lens that promotes constitutional values rather than perpetuating past governance failures. 113.On the nature of the President's appointment power, the Petitioners submitted that although Article 132(2)(a) of the Constitution grants the President authority to nominate Cabinet Secretaries, that power is not absolute and must be exercised consistently with the Constitution. Counsel argued that the 2010 Constitution deliberately dismantled the former imperial presidency by subjecting executive appointments to parliamentary oversight and constitutional limitations. It was submitted that the President's discretion remains constrained by the principles of legality, rationality, accountability and constitutional supremacy. Reliance was placed on the South African Constitutional Court decision in Democratic Alliance v President of South Africa [2012] ZACC 24, where the Court held that all exercises of public power must satisfy the constitutional requirement of rationality and that rationality extends not merely to the final decision but also to the process leading to that decision. Further reliance was placed on Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA 374 (CC), where it was held that all public power must be exercised within the limits prescribed by law. Counsel further cited Kenya Youth Parliament & 2 Others v Attorney General & 2 Others [2012] eKLR, where the High Court affirmed its jurisdiction to nullify appointments that violate constitutional requirements. Based on those authorities, the Petitioners submitted that the appointment of Cabinet Secretaries is amenable to judicial review where the process violates constitutional principles or statutory requirements. 114.The Petitioners further contended that the public participation undertaken during the vetting process was constitutionally deficient and failed to satisfy Articles 10 and 118 of the Constitution. Counsel referred the Court to Standing Order 127 of the National Assembly Standing Orders, which obligates departmental committees to facilitate public participation through mechanisms such as inviting memoranda, holding public hearings, consulting stakeholders and engaging experts. It was submitted that public participation under the Constitution possesses both quantitative and qualitative dimensions. Reliance was placed on Republic v County Government of Kiambu Ex Parte Robert Gakuru & Another [2016] eKLR, where Odunga J held that public participation must be real and meaningful rather than illusory and that constitutional compliance requires both quantitative and qualitative engagement. 115.According to the Petitioners, the public was afforded less than twenty-four hours to consider the Appointments Committee Report before the nominees were sworn into office. Counsel argued that the report was released on 7th August 2024 and the nominees were sworn in on 8th August 2024, thereby denying members of the public a reasonable opportunity to interrogate the report, consult stakeholders, formulate responses or influence the outcome of the process. It was submitted that such a truncated timeline rendered public participation illusory and reduced it to a mere procedural formality. The Petitioners further argued that the process disproportionately excluded civil society organizations, experts, marginalized groups and ordinary citizens who required adequate time to engage meaningfully with the process. Consequently, the constitutional objective of participatory democracy was defeated. 116.The Petitioners additionally complained that the National Assembly rejected numerous memoranda submitted by members of the public without providing reasons or affording affected parties an opportunity to address any perceived deficiencies. Counsel submitted that such conduct violated Article 47 of the Constitution and offended the principles of procedural fairness, transparency and accountability. Reliance was placed on the South African Supreme Court of Appeal decision in Transnet Limited v Goodman Brothers (Pty) Ltd [2001] 1 SA 853 (SCA), where the Court emphasized that the duty to provide reasons serves to rationalize decision-making, enhance public confidence and facilitate judicial scrutiny. The Petitioners argued that by failing to explain why public objections were rejected, Parliament deprived the public of meaningful participation and undermined constitutional democracy. They further relied on Doctors for Life International v Speaker of the National Assembly [2006] ZACC 11 and Matatiele Municipality v President of the Republic of South Africa [2006] ZACC 12, where the Constitutional Court of South Africa emphasized that constitutional democracy is both representative and participatory and that public participation requires genuine engagement rather than symbolic consultation. 117.On the question of integrity and leadership, the Petitioners submitted that several nominees had previously been implicated in corruption, misconduct or integrity-related concerns. They argued that Articles 73 and 75 of the Constitution require State officers to exhibit integrity, honesty, accountability and public confidence. Counsel contended that the Ethics and Anti-Corruption Commission (EACC), the Directorate of Criminal Investigations (DCI) and the Office of the Director of Public Prosecutions (DPP) had raised concerns regarding some nominees, yet those concerns were either ignored or inadequately addressed during the vetting process. It was argued that the National Assembly thereby abdicated its constitutional oversight responsibility and failed to enforce the requirements of Chapter Six of the Constitution. The Petitioners submitted that permitting individuals facing unresolved integrity concerns to assume public office undermines public trust, entrenches impunity and violates constitutional values. Reliance was placed on Economic Freedom Fighters v Speaker of the National Assembly & Others; Democratic Alliance v Speaker of the National Assembly & Others [2016] ZACC 11, where the South African Constitutional Court emphasized the constitutional duty of legislative institutions to hold the Executive accountable. 118.The Petitioners further argued that the vetting process failed the constitutional test of rationality. Counsel submitted that rational decision-making requires a logical connection between the information available to a decision-maker and the decision ultimately reached. It was contended that Parliament failed to adequately investigate integrity concerns, ignored adverse information from investigative agencies and failed to meaningfully consider public objections. Consequently, the approvals lacked a rational foundation and amounted to arbitrary decision-making. The Petitioners argued that the process, therefore, violated the principle of legality and invited judicial intervention. 119.In addition, the Petitioners submitted that the National Assembly unlawfully fettered its discretion by failing to independently consider relevant information placed before it. Reliance was placed on British Oxygen Co Ltd v Minister of Technology [1971] AC 610, where Lord Reid stated that a public authority exercising statutory discretion must not shut its ears to relevant representations. Counsel also cited Stemijon Investments Ltd v Canada (Attorney General), 2011 FCA 299, where the Federal Court of Appeal of Canada held that a decision resulting from fettered discretion is per se unreasonable. It was argued that by disregarding concerns raised by the EACC and other stakeholders, Parliament effectively predetermined the outcome of the vetting process and failed to exercise independent judgment as required by the Constitution. 120.The Petitioners also invoked the doctrine of legitimate expectation. They submitted that the dismissal of the previous Cabinet by the President generated a legitimate public expectation that the new Cabinet would comprise individuals who satisfied constitutional standards of integrity, competence and accountability. Reliance was placed on Ram Pravesh Singh & Others v State of Bihar & Others and M.P. Oil Extraction Ltd v State of Madhya Pradesh, where the Indian Supreme Court recognized legitimate expectation as a substantive doctrine within public law. Counsel argued that citizens had a reasonable expectation that Parliament would rigorously enforce Chapter Six of the Constitution and would not approve nominees facing unresolved integrity concerns. By approving such nominees, Parliament allegedly frustrated those legitimate expectations and undermined public confidence in governance. 121.Furthermore, the Petitioners submitted that the Respondents failed to comply with conservatory orders issued by Mwamuye J on 18th September 2024, requiring the preservation and production of documents relating to the nomination, vetting and appointment of Cabinet Secretaries. Counsel argued that despite the Court's orders, the Respondents failed to produce the relevant records. Reliance was placed on section 112 of the Evidence Act, Cap. 80, which places the burden of proving facts peculiarly within a party's knowledge upon that party. Counsel further cited Kenya Akiba Microfinance Limited v Ezekiel Chebii & 14 Others and Kimotho v Kenya Commercial Bank [2003] 1 EA 108, where courts held that adverse inferences may be drawn against parties who fail to produce evidence within their possession. The Petitioners urged the Court to infer that the withheld records would have revealed constitutional and procedural irregularities in the appointment process and to treat the failure to comply with court orders as further evidence of unconstitutional conduct. 122.In conclusion, the Petitioners urged the Court to find that the nomination, vetting, approval and appointment of the impugned Cabinet Secretaries violated the Constitution. They argued that the process was characterized by inadequate public participation, irrational decision-making, failure to enforce integrity standards, disregard of adverse reports from investigative agencies, violation of legitimate expectations and non-compliance with court orders. Consequently, they invited the Court to exercise its constitutional review jurisdiction and grant appropriate declaratory and remedial orders to vindicate the Constitution and restore public confidence in governance. 9th, 10th, 11th Petitioners’ submissions 123.The 9th Petitioner, who also made the submissions on behalf of the 10th and 11th Petitioners, supported the consolidated petitions and urged the Court to invalidate several appointments made by the President and approved by the National Assembly following the reconstitution of the Cabinet in July and August 2024. His submissions were founded on the supremacy of the Constitution, the principles of constitutional interpretation under Articles 2, 3, 10, 20 and 259 of the Constitution, and the contention that the President and the National Assembly had repeatedly acted in disregard of constitutional requirements relating to merit, inclusivity, integrity, accountability, public participation and constitutional governance. 124.The Petitioner first challenged the appointment of 22nd Interested party, Dorcas Agik Oduor, as Attorney-General. He argued that although Articles 156(2) and (3) of the Constitution provide for the nomination and appointment of the Attorney-General by the President with the approval of the National Assembly, those provisions must be read together with Article 232(1)(g), which requires fair competition and merit as the basis of appointments and promotions in the public service. 125.He submitted that the 22nd Interested Party was handpicked by the President without any competitive recruitment process and that neither the President nor the National Assembly possessed constitutional authority to determine her suitability in the absence of a transparent and competitive process. Drawing comparisons with the recruitment of the Director of Public Prosecutions under Article 157 and the Office of the Director of Public Prosecutions Act, he argued that a harmonious interpretation of the Constitution required the Attorney-General to be identified through a competitive recruitment process before nomination and parliamentary approval. Reliance was placed on the decisions in Speaker of the National Assembly & Another v Senate & 12 Others, Law Society of Kenya v Attorney General & Another, Institute for Social Accountability & Another v National Assembly & 3 Others, and In the Matter of the Interim Independent Electoral Commission, for the proposition that constitutional provisions must be interpreted holistically and in a manner that promotes constitutional values and principles. On that basis, he contended that the nomination, approval and appointment of the Attorney-General were unconstitutional and invalid. 126.The Petitioner further submitted that the composition of the Cabinet violated Article 27(8) of the Constitution. He noted that the Cabinet consisted of eighteen men and seven women, thereby failing to comply with the constitutional requirement that not more than two-thirds of members of an appointive body be of the same gender. Relying on the Marilyn Muthoni Kamuru case (supra), he argued that a Cabinet of twenty-five members required at least nine members from the minority gender and that the President and the National Assembly had multiple opportunities to remedy the constitutional deficiency but deliberately failed to do so. He contended that the continued violation of Article 27(8), nearly fifteen years after the promulgation of the Constitution, could not be justified by appeals to progressive realization and demonstrated a persistent disregard for constitutional obligations. He therefore urged the Court to declare the Cabinet unconstitutionally constituted. 127.In addition, the Petitioner argued that the Cabinet failed to comply with Article 54(2) of the Constitution, which requires at least five per cent (5%) representation of persons with disabilities in elective and appointive bodies. He submitted that in a Cabinet of twenty-five members, at least two members should be persons with disabilities and that the Respondents had failed to demonstrate compliance with that constitutional obligation. He rejected the Respondents’ reliance on the doctrine of progressive realization and maintained that the President and the National Assembly were under an immediate constitutional obligation to ensure representation of persons with disabilities in the apex policy-making organ of the Republic. In his view, the failure to include persons with disabilities rendered the Cabinet unconstitutional and inconsistent with the constitutional commitment to inclusivity and representation of diversity. 128.A substantial portion of the Petitioner’s submissions was devoted to challenging the reappointment of Cabinet Secretaries who had been dismissed by the President on 11th July 2024. He argued that the President had publicly justified the dismissal of his Cabinet on grounds relating to performance, public confidence and governance concerns. Having exercised his constitutional power under Article 152(5)(b) to remove the Cabinet Secretaries from office, the President could not lawfully reverse himself within days and nominate the same individuals for appointment to the very offices from which they had been removed. The Petitioner contended that such conduct was arbitrary, capricious and inconsistent with Articles 10, 73 and 131 of the Constitution. He maintained that once the President had determined that the affected individuals were no longer suitable to hold office, he could not subsequently reappoint them without demonstrating that the concerns that led to their dismissal had been resolved. He further argued that the National Assembly ought to have rejected the nominations because the President’s own conduct had cast doubt upon the competence, integrity and suitability of the nominees. 129.The Petitioner also challenged the appointment of senior members of the Orange Democratic Movement (ODM) to the Cabinet. He argued that Kenya is constitutionally established as a multiparty democratic State under Article 4(2) of the Constitution and that the constitutional structure contemplates the existence of a governing party and a legitimate opposition. According to the Petitioner, the appointment of prominent opposition leaders to Cabinet undermined the distinction between majority and minority parties, weakened the role of the opposition in holding the Executive accountable, and distorted the constitutional framework established by Articles 90, 91 and 108 of the Constitution. He maintained that the Constitution envisages political competition and accountability through a functioning opposition and that the inclusion of senior opposition figures in Cabinet effectively eroded that constitutional design. 130.The Petitioner further objected to the appointment of James Opiyo Wandayi and Geoffrey Kiringa Ruku as Cabinet Secretaries while serving as elected Members of the National Assembly. He argued that their resignations from Parliament to take up Cabinet positions triggered unnecessary vacancies and by-elections, thereby occasioning wasteful expenditure of public funds contrary to Article 201(d) of the Constitution. He contended that the appointments deprived their constituents of representation in Parliament and undermined the exercise of sovereign power by the people under Articles 1, 38 and 118 of the Constitution. He also emphasized that the appointments were made at a time when the Independent Electoral and Boundaries Commission was not properly constituted, making it impossible to conduct timely by-elections and thereby leaving constituents without representation for prolonged periods. 131.The Petitioner also challenged the appointment of Wycliffe Oparanya as a Cabinet Secretary. He submitted that the 4th Interested Party was, at the time of his nomination and appointment, the subject of forfeiture proceedings instituted by the Ethics and Anti-Corruption Commission arising from allegations of corruption during his tenure as Governor of Kakamega County. According to the Petitioner, the existence of ongoing integrity-related proceedings rendered him unsuitable for appointment to one of the highest offices in Government. Relying on the Trusted Society of Human Rights Alliance v Attorney General & 2 Others, Centre for PIL v Union of India, and Gikenyi B v Mwaura & 2 Others, he argued that appointing authorities are under a constitutional duty to undertake rigorous inquiries into the integrity and suitability of nominees and that the National Assembly failed to discharge that obligation. He maintained that unresolved corruption-related proceedings were incompatible with the constitutional standards of leadership and integrity under Articles 10 and 73 of the Constitution. 132.The Petitioner further submitted that the parliamentary approval process itself was constitutionally defective. He argued that the National Assembly failed to conduct a genuine and independent evaluation of the nominees and instead merely rubber-stamped the President’s choices. In particular, he criticized Parliament for failing to interrogate significant increases in wealth declared by several nominees who had served as Cabinet Secretaries for only a short period. He contended that the National Assembly ignored its constitutional oversight responsibilities under Articles 94 and 95 of the Constitution and failed to uphold the constitutional principles of accountability, integrity and transparency. In his view, Parliament abdicated its constitutional role and facilitated the appointment of persons who did not meet constitutional standards for public office. 133.The Petitioner further challenged the constitutionality of section 6(9) of the Public Appointments (Parliamentary Approval) Act and section 7(9) of the Public Appointments (County Assemblies Approval) Act. He argued that the statutory requirement that objections to nominees be submitted on oath imposed an unjustified barrier to public participation and excluded potentially valuable information from consideration during approval hearings. He submitted that the provisions unjustifiably limited the sovereign power of the people under Article 1 and the right to participate in governance under Articles 10, 118 and 196 of the Constitution. Drawing comparisons with the Judicial Service Commission’s recruitment process, which does not require objections to judicial candidates to be sworn, he contended that the impugned provisions were unnecessary, disproportionate and unconstitutional. He therefore urged the Court to invalidate them. 134.In conclusion, the 9th Petitioner invited the Court to allow the consolidated petitions in their entirety and to declare unconstitutional the appointment of the Attorney-General, the composition of the Cabinet for the failure to include persons with disabilities, the reappointment of previously dismissed Cabinet Secretaries, the appointment of opposition politicians to Cabinet, the appointment of sitting Members of Parliament as Cabinet Secretaries, the appointment of Wycliffe Oparanya, the parliamentary approval process undertaken by the National Assembly, and the statutory provisions requiring public objections to nominees to be submitted on oath. He urged the Court to vindicate the Constitution by enforcing the principles of constitutional supremacy, accountability, inclusivity, integrity, transparency and democratic governance. G. Respondents’ Submissions 2nd and 4th Respondents’ submission in response to the consolidated petition dated 10th November 2025 135.The 2nd and 4th Respondents, through the National Assembly, opposed the consolidated petitions and urged the Court to dismiss them in their entirety. Their primary position was that the petitions were fundamentally misconceived, invited impermissible judicial intrusion into the functions of the Legislature and Executive, and failed to demonstrate any constitutional or statutory violation in the nomination, vetting, approval and appointment of Cabinet Secretaries and the Attorney-General. The National Assembly maintained that it acted strictly within its constitutional mandate under Articles 118 and 152 of the Constitution and the Public Appointments (Parliamentary Approval) Act. 136.The National Assembly identified three principal issues for determination: whether the approval process was constitutional, rational and procedurally fair; whether the Petitioners had discharged the burden of proving a clear constitutional violation; and whether the doctrines of separation of powers, legality and rationality precluded the Court from substituting its judgment for that of the President and Parliament. 137.On the approval process, the National Assembly provided a detailed chronology of the nominations and vetting exercises undertaken between July 2024 and April 2025. It submitted that upon receiving the President’s nominations, the Speaker referred them to the Committee on Appointments in accordance with the Constitution and the Public Appointments (Parliamentary Approval) Act. Public notices were published in national newspapers, on Parliament’s website and through social media platforms. Members of the public were invited to submit memoranda challenging nominees, while the nominees themselves were invited to appear before the Committee for approval hearings. Background checks were also undertaken through institutions including the Ethics and Anti-Corruption Commission (EACC), Kenya Revenue Authority (KRA), Directorate of Criminal Investigations (DCI), Higher Education Loans Board (HELB) and the Office of the Registrar of Political Parties (ORPP). The hearings were broadcast live on television, Parliament’s website and social media platforms. 138.The National Assembly emphasized that extensive public participation occurred. It stated that during the initial vetting process alone, 837 memoranda were received from the public, of which 181 were compliant affidavits as required by section 6(9) of the Public Appointments (Parliamentary Approval) Act. The remaining memoranda were either unsworn or supportive of nominees and therefore inadmissible under the Act. The Assembly argued that the requirement that objections be submitted through sworn affidavits was a legitimate statutory safeguard designed to ensure accountability and protect nominees from frivolous or malicious allegations. It contended that the constitutional obligation was to provide a reasonable opportunity for public participation and not to guarantee that every submission would be admitted or adopted. Reliance was placed on the Supreme Court decision in Cabinet Secretary for the National Treasury and Planning & 4 Others v Okiya Omtatah Okoiti & 52 Others; Bhatia (Amicus Curiae) [2024] KESC 63 (KLR), which held that public participation is assessed on the basis of reasonableness and that Parliament is not required to respond individually to every public submission. 139.The National Assembly further submitted that it conducted thorough background checks and substantive evaluations of all nominees. It stated that the Committee on Appointments assessed nominees against the criteria prescribed under section 7 of the Public Appointments (Parliamentary Approval) Act, including academic qualifications, professional competence, integrity, constitutional compliance, experience and suitability for office. The Committee thereafter prepared reports which were debated and adopted by the House. The Assembly argued that its decisions were therefore informed, rational and consistent with constitutional requirements. Reliance was placed on Mayama v National Assembly & 2 Others [2024] KEHC 16496 (KLR), Doctors for Life International v Speaker of the National Assembly and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR to support the proposition that courts should accord deference to Parliament when it properly discharges its constitutional mandate. 140.On the challenge to the gender composition of the Cabinet, the National Assembly argued that the Petitioners’ claim was factually incorrect. It submitted that the proper composition of the Executive includes not only Cabinet Secretaries but also the Attorney-General and the Secretary to the Cabinet. On that basis, the Executive comprised twenty-four members, fifteen of whom were men and nine of whom were women. This translated to 62.5% male representation and 37.5% female representation, thereby satisfying the constitutional requirement in Article 27(8) that no more than two-thirds of the members of an appointive body be of the same gender. The Assembly therefore argued that the alleged violation of the two-thirds gender principle was based on an erroneous calculation and should be rejected. 141.The National Assembly also defended the reappointment of several Cabinet Secretaries who had previously been dismissed. It argued that Article 152(5) of the Constitution gives the President the power to appoint, reassign and dismiss Cabinet Secretaries, but does not provide that a dismissed Cabinet Secretary becomes permanently ineligible for future appointment. It maintained that neither the doctrine of res judicata nor the principle against double jeopardy was applicable because a presidential dismissal is an executive and political act rather than a judicial determination of guilt. It further submitted that the Public Appointments (Parliamentary Approval) Act expressly defines “appointment” to include “re-appointment,” thereby requiring such nominees to undergo fresh parliamentary vetting. Accordingly, the reappointments were constitutional and lawful. 142.The National Assembly further argued that the Petitioners had failed to satisfy the constitutional pleading threshold established in Anarita Karimi Njeru v Republic [1979] KLR and reaffirmed in Mberia v Council, Jomo Kenyatta University of Agriculture and Technology [2025] KECA 730 (KLR). It submitted that the petitions contained broad allegations of constitutional violations without identifying specific infringements supported by evidence. According to the Assembly, the Petitioners relied on general assertions concerning democratic decline and governance failures rather than demonstrating concrete violations attributable to the approval process. Consequently, the petitions failed to meet the standard required in constitutional litigation. 143.The National Assembly also invoked the presumption of constitutionality and regularity. It submitted that decisions made by Parliament in the lawful exercise of its constitutional mandate are presumed valid unless proven otherwise. It argued that none of the Cabinet Secretaries had been convicted of offences or found unsuitable for public office by any competent body. The Assembly therefore contended that the Court should not revisit Parliament’s assessment of integrity and suitability in the absence of demonstrated irrationality or illegality. 144.In support of the continued validity of Cabinet decisions, the National Assembly invoked the de facto officer doctrine. It argued that even if procedural defects were subsequently identified, actions undertaken by officials who assumed office pursuant to an apparently lawful process remain valid in order to protect legal certainty, public administration and institutional stability. It therefore maintained that nullification of Cabinet decisions would cause unnecessary disruption to government operations and undermine public confidence in state institutions. 56.Furthermore, the National Assembly strongly relied on the doctrine of separation of powers. It argued that the Constitution expressly assigns the power of nomination to the President and the power of approval to Parliament. The Court’s role is limited to ensuring constitutional compliance and does not extend to substituting its own views on the merits of nominees. Relying on Katiba Institute v Attorney General & 9 Others [2023] KESC 47 (KLR), Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR and Senate & 2 Others v Council of County Governors & 8 Others[2022] KESC 7 (KLR), the National Assembly submitted that judicial review in such matters is confined to examining legality and rationality rather than undertaking a merits review. Since no constitutional or statutory violation had been demonstrated, the Court was urged to exercise restraint and uphold the approval process and all resulting appointments. 146.In conclusion, the National Assembly maintained that it complied fully with the Constitution, the Public Appointments (Parliamentary Approval) Act and its Standing Orders; facilitated meaningful public participation; conducted proper vetting and background checks; complied with the two-thirds gender rule; lawfully approved reappointed Cabinet Secretaries; and exercised its constitutional mandate rationally and fairly. It therefore prayed that the consolidated petitions be dismissed with costs and that the validity of the Cabinet appointments be upheld. 3rd Respondent’s submissions 147.The 3rd Respondent, the Honourable Attorney General, opposed the consolidated petitions and urged the Court to dismiss them in their entirety. Through written submissions dated 19th June 2025 and 28th September 2025, the Attorney General maintained that the petitions were founded on a misapprehension of the Constitution, failed to satisfy the threshold for constitutional litigation, and did not disclose any constitutional violation in the nomination, vetting, approval and appointment of Cabinet Secretaries and the Attorney-General. According to the Attorney General, the impugned appointments were undertaken strictly within the constitutional framework governing executive appointments and democratic governance and therefore could not be impugned merely because certain members of the public disagreed with the President’s choices. 148.The Attorney General submitted that Articles 4, 10, 73, 95, 129 and 131 of the Constitution establish Kenya as a multiparty democratic State founded on the values of democracy, inclusiveness, equality, accountability, transparency, integrity, public participation and the rule of law. Counsel argued that the Constitution entrusts the President with executive authority while simultaneously conferring upon the National Assembly oversight and approval functions. The constitutional architecture therefore contemplates a system of checks and balances in which the President nominates Cabinet Secretaries and the National Assembly scrutinizes and approves those nominations. According to the Attorney General, the appointments challenged by the Petitioners were undertaken in accordance with that constitutional design and therefore complied with the Constitution. 149.A substantial part of the Attorney General’s submissions concerned the constitutional powers of the President and the doctrine of separation of powers. Reliance was placed on Articles 132 and 152 of the Constitution, which expressly empower the President to nominate, appoint, reassign and dismiss Cabinet Secretaries, subject to parliamentary approval. Counsel argued that those powers are constitutionally vested in the Executive and that courts should exercise restraint when invited to interfere with decisions that the Constitution has allocated to another arm of government. Reliance was placed on Pevans East Africa Limited & Another v Chairman, Betting Control and Licensing Board & 7 Others [2018] eKLR, where the Court of Appeal held that courts must accord constitutional institutions sufficient latitude to discharge their mandates and should intervene only where there is clear and demonstrable non-compliance with the Constitution. The Attorney General also cited Julius Nyarotho v Attorney General & 3 Others [2013] eKLR for the proposition that while presidential appointments remain subject to constitutional scrutiny, judicial intervention is only warranted where there is proof of illegality or constitutional violation. According to counsel, the Petitioners had failed to establish any such violation. 150.The Attorney General further argued that the petitions misconceived the nature of Kenya’s constitutional democracy by suggesting that members of particular political parties or political formations could not be appointed to Cabinet. Counsel submitted that the Constitution deliberately departed from the Westminster model and does not establish a constitutionally recognised “official opposition.” Rather, Article 108 merely recognises majority and minority parties within Parliament. Oversight of the Executive is exercised collectively by the National Assembly as an institution and not by any designated opposition party. Consequently, there is no constitutional prohibition against the appointment of persons who belong to political parties or who previously held political office. The Attorney General emphasized that Articles 27 and 38 of the Constitution guarantee equality, non-discrimination and political rights, including the right of every citizen to participate in political party activities and to seek public office. To exclude individuals from appointment solely because of their political affiliation would itself constitute unconstitutional discrimination and would undermine the values of inclusiveness and political participation. 151.Relatedly, the Attorney General submitted that Article 152 establishes a three-stage constitutional process for appointment of Cabinet Secretaries comprising nomination by the President, approval by the National Assembly and formal appointment by the President. Counsel argued that the Constitution contains no provision prohibiting politically active individuals from being nominated to Cabinet. Instead, Article 77(2) merely provides that an appointed State officer shall not hold office in a political party after assuming office. According to the Attorney General, political affiliation at the nomination stage does not amount to a constitutional disqualification and the Petitioners had failed to produce any evidence showing that any of the appointees retained political party offices after assuming Cabinet positions. 152.The Attorney General also rejected the contention that the Cabinet violated the two-thirds gender principle under Article 27(8) of the Constitution. Counsel argued that the Petitioners had misconstrued the composition of Cabinet by excluding the Secretary to the Cabinet from their calculations. According to the Attorney General, once the Secretary to the Cabinet, Mercy Wanjau, was included, the Cabinet comprised seventeen men and nine women, thereby achieving approximately thirty-six percent female representation and satisfying the constitutional requirement that not more than two-thirds of the members of an appointive body be of the same gender. It was therefore submitted that the allegation of non-compliance with Article 27(8) was factually incorrect. 153.In the alternative, the Attorney General argued that Article 27(8) is a transformative constitutional provision intended to be progressively realized through legislative, administrative and policy measures. Reliance was placed on Federation of Women Lawyers of Kenya (FIDA-K) v Attorney General & Another [2011] eKLR and the Supreme Court Advisory Opinion in In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012] KESC 5 (KLR). Counsel submitted that the Constitution recognises that certain equality guarantees may require progressive implementation and that the Petitioners had adopted an unduly rigid interpretation of the constitutional text. Consequently, the challenge to the composition of Cabinet was said to be legally unsustainable. 154.The Attorney General further opposed the argument that the reappointment of Cabinet Secretaries who had been dismissed by the President on 11th July 2024 rendered them constitutionally ineligible to hold office. Counsel submitted that Article 152(5) expressly empowers the President to dismiss or reassign Cabinet Secretaries and that the July 2024 dismissal constituted a political and administrative reorganization rather than a disciplinary finding of misconduct. According to the Attorney General, Article 75(3) only disqualifies a person from holding State office where that person has been removed or dismissed following a finding of violation of the integrity provisions contained in Article 75(2) or other provisions of Chapter Six. The Petitioners had not demonstrated that any of the reappointed Cabinet Secretaries had been removed for misconduct, corruption, violation of the Constitution or any integrity-related offence. Consequently, the mere fact of dismissal did not trigger the disqualification provisions of Article 75(3). 155.The Attorney General also addressed allegations that some nominees failed to satisfy the constitutional requirements of integrity under Chapter Six. Counsel submitted that issues of integrity and suitability for public office are primarily entrusted to constitutional and statutory institutions such as the Ethics and Anti-Corruption Commission, the Director of Public Prosecutions and other oversight agencies. Reliance was placed on William Kabogo Gitau v Ferdinand Ndung'u Waititu [2016] eKLR and International Centre for Policy and Conflict & 5 Others v Attorney General & 5 Others [2013] eKLR, where courts recognised that integrity inquiries are ordinarily undertaken by specialised constitutional bodies. The Attorney General argued that none of the Petitioners had produced findings from any competent institution establishing that the nominees had violated Chapter Six. Instead, the allegations remained speculative and unsupported by evidence. Counsel further relied on sections 107, 108 and 109 of the Evidence Act, contending that the burden of proving disqualification rested upon the Petitioners and that burden had not been discharged. 156.On the issue of public participation and parliamentary vetting, the Attorney General submitted that the Petitioners had themselves acknowledged that public participation took place. The dispute, according to counsel, concerned the adequacy of the process rather than its existence. It was argued that Parliament invited public participation, received hundreds of memoranda from members of the public and considered the material submitted. The Attorney General maintained that Parliament acted lawfully in rejecting memoranda that did not comply with section 6(9) of the Public Appointments (Parliamentary Approval) Act, which requires objections to nominees to be submitted by way of sworn statements. Counsel argued that compliance with statutory requirements could not be transformed into a constitutional violation. Reliance was placed on Kiambu County Government & 3 Others v Robert N. Gakuru & Others [2017] eKLR and Mui Coal Basin Local Community & 15 Others v Permanent Secretary, Ministry of Energy & 17 Others, where the courts held that public participation must be reasonable, context-specific and tailored to the circumstances of each case. According to the Attorney General, public participation does not require unanimity, nor does it require that every view expressed be adopted. Parliament had therefore satisfied the constitutional requirements of public participation. 157.The Attorney General further submitted that the allegations that Parliament ignored integrity concerns raised against certain nominees were unsupported by evidence. Counsel argued that the Petitioners had merely made generalized assertions regarding integrity, pending investigations and suitability without placing before the Court any material demonstrating misconduct, adverse findings or ongoing proceedings capable of disqualifying any nominee. Reliance was placed on Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR, where the Court emphasized the need for constitutional litigants to plead violations with precision and support them with evidence. In the Attorney General’s view, the Petitioners had failed to place before the Court any evidentiary basis upon which appointments could be invalidated. 158.A further preliminary issue raised by the Attorney General concerned presidential immunity. Counsel relied on Article 143(2) of the Constitution and the Supreme Court decision in Attorney General & 2 Others v Ndii & 79 Others; Prof. Rosalind Dixon & 7 Others (Amicus Curiae) [2022] KESC 8 (KLR), where the Supreme Court affirmed that civil proceedings cannot be instituted against a sitting President in relation to actions undertaken in the exercise of constitutional powers. The Attorney General therefore argued that the proceedings against the President were constitutionally barred and should be struck out. Reliance was also placed on Katiba Institute v President of the Republic of Kenya & 2 Others and related jurisprudence affirming that constitutional challenges to presidential actions should not ordinarily proceed through direct litigation against the President personally. 159.Furthermore, the Attorney General argued that the petitions failed to meet the established threshold for constitutional litigation. Reliance was placed on Anarita Karimi Njeru v Republic [1979] eKLR, Susan Wangari Mburu & 5 Others v Eldoret Water & Sanitation Company Ltd & Another [2021] KEELC 1429 (KLR), Rono v Insurance Regulatory Authority & 4 Others [2024] KEHC 11373 (KLR), Grays Jepkemoi Kiplagat v Zakayo Chepkoga Cheruiyot [2021] eKLR and Council of County Governors v Attorney General & Another [2017] eKLR. Counsel submitted that the Petitioners had failed to plead with precision the specific constitutional provisions violated, the manner of violation and the factual basis for their claims. According to the Attorney General, the petitions were largely founded on conjecture, political dissatisfaction and speculative allegations rather than demonstrable constitutional breaches. Consequently, the Court was urged to find that the Petitioners had failed to discharge the burden of proof required in constitutional litigation, dismiss the petitions with costs, and uphold the constitutionality of the nomination, vetting, approval and appointment of the Cabinet Secretaries and the Attorney-General. H. Interested Parties’ submissions 6th, 10th, and 11th Interested Party’s (Alice Wahome, Salim Mvurya, and Rebecca Miano) submissions dated 24th June 2025 160.The 6th, 10th and 11th Interested Parties opposed the consolidated petitions and urged the Court to dismiss them with costs. Through submissions dated 24th June 2025, they argued that the petitions improperly sought to challenge the constitutional exercise of presidential and parliamentary powers relating to the nomination, approval and appointment of Cabinet Secretaries. Their central position was that the Constitution expressly reserves the power to nominate and appoint Cabinet Secretaries to the President, subject only to approval by the National Assembly, and that the Court should not interfere with those functions unless there is a clear, gross and demonstrable violation of the Constitution. 161.The Interested Parties submitted that the consolidated petitions offended the doctrines of separation of powers, judicial restraint and institutional competence. Relying on Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others[2013] eKLR, they argued that courts should be cautious not to intrude into matters constitutionally committed to the Executive and Legislature. According to them, questions concerning the suitability, qualifications and political desirability of Cabinet nominees are matters that the Constitution assigns primarily to the President and the National Assembly through the nomination and vetting process. Once Parliament has undertaken its constitutional oversight role and approved nominees, courts should not substitute their own opinions for those of constitutionally mandated institutions merely because some members of the public disagree with the appointments. 162.The Interested Parties further contended that the petitions raised non-justiciable political questions that fall outside the proper province of the Judiciary. They argued that Articles 132 and 152 of the Constitution constitute a complete constitutional framework governing the appointment of Cabinet Secretaries and that those provisions commit the process to the political branches of government. Relying on In the Matter of the Interim Independent Electoral Commission[2011] eKLR, they submitted that not every constitutional dispute is justiciable and that courts must refrain from adjudicating matters that are textually committed to other branches of government. In their view, the petitions invited the Court to evaluate the merits of political appointments and the political affiliations of appointees, issues that are better resolved through political and democratic processes rather than judicial intervention. 163.The Interested Parties also argued that while judicial review remains an important constitutional safeguard, its role is limited where the Constitution confers discretionary authority upon another institution. They maintained that Article 152(2) gives the President the power to nominate Cabinet Secretaries, subject to parliamentary approval, while Article 95(5)(b) entrusts Parliament with oversight over State officers. Citing the Court of Appeal decision in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR, they submitted that courts must exercise deference where constitutional functions have been assigned to another arm of government and should only intervene where illegality, irrationality or procedural impropriety is demonstrated. According to the Interested Parties, the Petitioners had not identified any procedural defect, constitutional violation or legal impropriety in the nomination and approval process and had instead based their challenge on dissatisfaction with the identity and political affiliations of some appointees. Such grievances, they argued, do not furnish a proper basis for judicial review. 164.The Interested Parties further submitted that the Petitioners had failed to discharge the burden of proving constitutional violations. Relying on the Anarita Karimi Njeru case (supra) and the Mumo Matemu case (supra), they argued that constitutional petitions must plead constitutional violations with precision and demonstrate the specific manner in which the Constitution has been infringed. In their view, allegations that certain Cabinet Secretaries lacked integrity, had pending legal proceedings or had previously served in Cabinet were insufficient to justify nullification of appointments. They emphasized that Article 50(2)(a) of the Constitution guarantees the presumption of innocence and that none of the appointees had been convicted of any offence or declared unfit to hold public office by a competent authority. Accordingly, the allegations remained speculative and incapable of sustaining the constitutional remedies sought. 165.The Interested Parties also rejected the argument that the reappointment of former Cabinet Secretaries was unconstitutional. They pointed to Article 152(5)(a) of the Constitution, which expressly empowers the President to reassign Cabinet Secretaries. In their view, the Constitution does not prohibit the President from reappointing individuals who have previously served in Cabinet, nor does prior service create any constitutional disability. The Petitioners’ contention that reappointment was unconstitutional was therefore described as legally unsustainable and unsupported by the constitutional text. 166.A significant part of their submissions focused on the doctrine of separation of powers. The Interested Parties argued that the Constitution deliberately allocates distinct functions to the Executive, Legislature and Judiciary. Articles 129, 132 and 152 vest authority over Cabinet appointments in the Executive, while Parliament exercises its oversight role through approval hearings. The Judiciary’s role is limited to ensuring legality and constitutional compliance and does not extend to reassessing the wisdom, political desirability or suitability of executive appointments. Reliance was placed on Martin Nyaga Wambora & Others v County Assembly of Embu & Others [2015] eKLR and Mate & Another v Wambora & Another [2017] eKLR, where the courts emphasized the need to balance judicial oversight with respect for the constitutional functions of other branches of government. The Interested Parties argued that accepting the Petitioners’ invitation would amount to judicial overreach and would undermine the constitutional equilibrium between the three arms of government. 167.The Interested Parties additionally invoked the rationality standard applicable to review of executive action. Relying on Kenya Youth Parliament & 2 Others v Attorney General & Another, they submitted that the proper question is not whether the Court agrees with the appointments but whether the decisions bear a rational connection to the constitutional and statutory framework. Since the President nominated the Cabinet Secretaries pursuant to Articles 132 and 152 and Parliament subsequently approved the nominees through the constitutionally prescribed process, the resulting appointments were presumptively lawful and rational. The Petitioners had failed to demonstrate any irrationality, arbitrariness or illegality capable of displacing that presumption. 168.Ultimately, the Interested Parties characterized the consolidated petitions as political grievances disguised as constitutional litigation. They argued that the petitions sought to politicize the Judiciary, invite courts to determine matters reserved for elected branches of government, and establish a dangerous precedent whereby executive appointments could be routinely challenged on tenuous political grounds. According to the Interested Parties, there was no evidence of any constitutional breach, no jurisdictional basis for judicial intervention, and no legal threshold had been met to warrant invalidation of the appointments. They therefore urged the Court to uphold the constitutional allocation of powers, respect the decisions of the President and Parliament, and dismiss the consolidated petitions with costs. I. Analysis and determination 168.We have carefully considered the petitions, responses, affidavits, documentary material placed before the Court, the written and oral submissions of counsel, and the relevant constitutional, statutory and jurisprudential authorities cited by the parties. Before turning to the substantive issues arising for determination, it is necessary to address a matter that emerged from the record. Although the President of the Republic of Kenya was named as the 1st Respondent and many of the impugned actions were attributed to the exercise of presidential authority under the Constitution, no replying affidavit was filed by the President either in his personal capacity or in his official capacity as the holder of the Office of the President. The response to the petitions, insofar as they challenged the President's actions and decisions, was instead advanced principally through the pleadings filed by the Attorney-General, who raised, among other matters, the question of presidential immunity under Article 143 of the Constitution and defended the constitutionality of the impugned nominations, approvals and appointments. This issue must therefore be addressed at the outset before considering the substantive constitutional questions presented for determination. 169.Article 143 of the Constitution provides in relevant part that:“Civil proceedings shall not be instituted in any court against the President or the person performing the functions of that office during their tenure of office in respect of anything done or not done in the exercise of their powers under this Constitution.” 170.The constitutional purpose of presidential immunity is to protect the holder of the highest executive office from personal civil liability and litigation that may impede the discharge of constitutional responsibilities. However, presidential immunity does not place presidential actions beyond constitutional scrutiny. the Constitution remains supreme under Article 2, and every exercise of public power must conform to constitutional requirements. Consequently, while a President may enjoy personal immunity from civil proceedings during tenure, the legality and constitutionality of presidential actions remain amenable to judicial review through proceedings directed against the relevant State organs, office holders or decisions implementing those actions. Indeed, the Attorney-General himself did not contend that the Court lacked jurisdiction to interrogate the constitutionality of the nominations and appointments. Rather, the Attorney-General's objection was directed at the propriety of maintaining the President as a party to the proceedings in light of Article 143(2). 171.The jurisprudence of the superior courts has consistently recognised this distinction between presidential immunity and constitutional accountability. In David Ndii & Others v Attorney General & Others (Petition E282, E397, E400, E401, E416 & E426 of 2020 and Petition E002 of 2021 (Consolidated)) [2021] KEHC 9746 (KLR) the courts acknowledged that Article 143 protects the President from personal civil proceedings while in office, but does not insulate presidential acts from constitutional review where questions arise concerning compliance with the Constitution. Equally, the Supreme Court in In the Matter of the Speaker of the Senate & Another [2013] KESC 7 (KLR) emphasized that all State organs derive their authority from the Constitution and must exercise their functions within constitutional limits. Thus, the Court's inquiry is not directed at the personal liability of the President but at the constitutional validity of the impugned exercise of public power. 172.In the present case, the absence of a replying affidavit from the President did not leave the Court without the benefit of a response to the petitions. The Attorney-General, as the principal legal adviser to the Government under Article 156(4)(a), mounted a comprehensive defence of the nomination and appointment process and expressly defended the constitutionality of the President's actions. The Attorney-General consistently maintained that the President acted within the powers conferred by Articles 132, 152 and 156 of the Constitution; that the nominations were subsequently subjected to parliamentary approval as required by law; and that the petitions were barred, in part, by the immunity accorded to the President under Article 143(2). Accordingly, while the Court notes the absence of a personal response from the President, the constitutional and legal issues raised against the presidential nominations were fully ventilated through the Attorney-General's pleadings and submissions, thereby enabling the Court to determine the issues on their merits. 173.Now to the substantive aspects of the judgment. At its core, the litigation raises fundamental questions concerning the scope of presidential appointment powers, the role of Parliament in the approval process, the application of constitutional principles relating to public participation, leadership and integrity, inclusivity and gender representation, the constitutional qualifications for public office, and the extent of judicial intervention in matters committed to the Executive and Legislature. Although the parties framed their arguments through numerous petitions, applications, objections and responses, the issues may conveniently be distilled into the following broad thematic questions, whose determination will dispose of all the disputes raised in the consolidated petitions. Accordingly, the Court is of the considered view that the following issues arise for determination: -a.Whether the doctrine of separation of powers or principles of institutional comity bar this court from interrogating the constitutionality and legality of the nomination, vetting, approval and appointment processes of the cabinet secretariesb.Whether the nomination and reappointment of Cabinet Secretaries following the dissolution of Cabinet on 11th July 2024 was constitutional and lawful.c.Whether the composition of the Cabinet complies with the Constitution, particularly the two-thirds gender principle and requirements of inclusivity and representation.d.Whether the public participation, vetting and approval process undertaken by the National Assembly complied with the Constitution and the law.e.Whether the nomination and appointment of the Attorney-General complied with the Constitutionf.Whether the appointment of ‘opposition’ political leaders to the Cabinet complied with the Constitution.g.Whether the Petitioners are entitled to the reliefs sought. a. Whether the doctrine of separation of powers or principles of institutional comity bar this court from interrogating the constitutionality and legality of the nomination, vetting, approval and appointment processes of the cabinet secretaries 174.The respondents raised a jurisdictional objection founded principally upon the doctrines of separation of powers, constitutional avoidance, and institutional comity. The Attorney General and the Speaker of the National Assembly contended that the Constitution expressly vests the power to nominate Cabinet Secretaries in the President under Articles 131 and 152 of the Constitution and the power to vet and approve such nominees in the National Assembly. It was argued that the suitability of nominees for appointment to Cabinet is a matter entrusted by the Constitution to the political branches of government and that judicial intervention at that stage would amount to an impermissible intrusion into functions constitutionally allocated to the Executive and Legislature. The respondents further maintained that the petitions were premature, that the grievances raised ought first to have been ventilated through the parliamentary approval process, and that the Court lacked jurisdiction to interfere with an ongoing constitutional process. 175.The petitioners took a diametrically opposed position. They contended that the petitions do not invite the Court to determine who ought to be appointed to Cabinet or to substitute its opinion for that of the President or Parliament. Rather, they assert violations of the Constitution in the exercise of public power and invite the Court to determine whether the nomination, vetting, approval and appointment processes complied with constitutional requirements. 176.The petitioners maintained that no constitutional organ is above the Constitution and that the Judiciary bears the constitutional responsibility of ensuring that all State organs act within constitutional limits. According to the petitioners, the issues raised concern legality, constitutional compliance, public participation, integrity, constitutional qualifications, fair administrative action and adherence to national values and principles of governance and are therefore squarely within the jurisdiction of this Court under Articles 22, 23 and 165 of the Constitution. 177.The question before the Court is therefore not whether the President possesses constitutional authority to nominate Cabinet Secretaries, nor whether the National Assembly possesses constitutional authority to vet and approve such nominees. Those propositions are beyond dispute. The real issue is whether the exercise of those constitutional powers is immune from judicial scrutiny. Put differently, does the doctrine of separation of powers operate as a jurisdictional bar to constitutional review? 178.The answer must be found in the Constitution itself. Article 1 declares that all sovereign power belongs to the people of Kenya and may only be exercised in accordance with the Constitution. Article 2(1) proclaims the supremacy of the Constitution and binds all persons and all State organs at both levels of government. Article 2(4) renders invalid any act or omission inconsistent with the Constitution. Article 3 imposes upon every person and every State organ the duty to respect, uphold and defend the Constitution. Article 10 binds all State organs whenever they apply or interpret the Constitution, enact, apply or interpret any law, or implement public policy decisions. Article 165(3)(d) confers upon the High Court jurisdiction to determine whether any law or anything done under the authority of the Constitution is inconsistent with or in contravention of the Constitution. Article 165(6) further grants supervisory jurisdiction over any person, body or authority exercising a judicial or quasi-judicial function. 179.These provisions reveal that the Constitution establishes neither absolute autonomy nor constitutional immunity for any arm of government. the Constitution is supreme over all institutions. Every exercise of public power remains subject to constitutional discipline. The Judiciary, as the guardian of the Constitution, is vested with the responsibility of ensuring that constitutional boundaries are observed. 180.The Supreme Court addressed this constitutional architecture in In the Matter of the Speaker of the Senate & Another, Advisory Opinion Reference No. 2 of 2013 [2013] KESC 7 (KLR). The Court recognised that the Constitution allocates distinct functions to the Legislature, Executive and Judiciary and that each arm of government must respect the constitutional mandate of the others. However, the Supreme Court rejected a rigid and formalistic conception of separation of powers. Instead, it adopted a constitutional model founded upon checks and balances, accountability and constitutional supremacy. The Court observed that the Constitution establishes “a system of checks and balances that prevents autocracy, restrains institutional excesses and prevents abuse of power.” The significance of that decision is that separation of powers was not conceived as a barrier to constitutional review but rather as a framework within which constitutional accountability is maintained. 181.The Supreme Court elaborated this principle in In the Matter of the Kenya National Commission on Human Rights, Advisory Opinion Reference No. 1 of 2017 [2020] KESC 1 (KLR). The Court emphasised that the Kenyan Constitution does not establish complete institutional isolation among State organs. Rather, it creates overlapping responsibilities, mutual accountability and constitutional supervision. The Court observed that no constitutional organ exists in a vacuum and that all institutions remain subject to constitutional norms. The doctrine of separation of powers therefore cannot be invoked to shield unconstitutional conduct from judicial scrutiny. 182.The same approach permeates the Supreme Court’s reasoning in In the Matter of the Constitution of Kenya, 2010; the Constitution of Kenya Amendment Bill, 2020; Senate & 43 Others v Attorney General & 4 Others (Interested Parties) [2021] KESC 31 (KLR), commonly referred to as the BBI Advisory Opinion. The Supreme Court recognised the importance of respecting the constitutional functions assigned to each arm of government but reiterated that constitutional supremacy remains the organising principle of the constitutional order. The Court held that even politically significant processes remain reviewable where constitutional limits are implicated. Institutional autonomy cannot supersede constitutional supremacy. 183.The respondents urged the Court to exercise restraint and to decline intervention on grounds that the impugned processes were constitutionally assigned to the President and Parliament. This argument undoubtedly finds support in the principle that courts ought not to usurp functions constitutionally committed to other branches of government. Indeed, the Supreme Court in Cabinet Secretary for the National Treasury and Planning & 4 Others v Okiya Omtatah Okoiti & 52 Others; Bhatia (Amicus Curiae) [2024] KESC 63 (KLR) reiterated that courts should ordinarily refrain from intruding into policy choices reserved to the political branches and should avoid becoming arbiters of political wisdom. The Court observed that separation of powers requires respect for the “core functions” of other branches of government and warned against judicial usurpation of powers constitutionally allocated elsewhere. 184.However, that same decision is equally clear that the High Court retains residual jurisdiction under Article 165 to determine whether public power has been exercised in accordance with the Constitution. The Supreme Court emphasised that the Judiciary's role is not to formulate policy but to ensure that all State organs operate within constitutional limits. Thus, while the Court may not determine who ought to be appointed to Cabinet, it may determine whether the appointment process complied with constitutional requirements. 185.The respondents also relied implicitly on the political question doctrine. The most prominent articulation of that doctrine appears in Nixon v United States, 506 U.S. 224 (1993), where the Supreme Court of the United States held that challenges to the Senate’s conduct of impeachment proceedings presented a non-justiciable political question because the United States Constitution vested the Senate with the “sole power” to try impeachments. The Court reasoned that there were no judicially manageable standards against which to assess the Senate’s conduct. 186.While the Nixon decision (supra) illustrates the importance of judicial restraint, its applicability within Kenya’s constitutional framework is necessarily limited. the Constitution of Kenya, 2010 differs fundamentally from the constitutional text considered in the Nixon decision (supra). The Kenyan Constitution contains an expansive Bill of Rights, expressly subjects all State organs to constitutional review, guarantees fair administrative action under Article 47, guarantees fair hearing under Article 50, and confers broad constitutional jurisdiction upon the High Court under Article 165. More importantly, the Constitution provides identifiable standards against which executive and legislative conduct may be measured. Consequently, the absence of judicially manageable standards that informed the Nixon decision does not arise under the Kenyan constitutional order. 187.Kenyan jurisprudence has consistently declined to adopt an expansive version of the political question doctrine. In Ramogi & 3 Others v Attorney General & 4 Others; Muslims for Human Rights & 2 Others (Interested Parties) [2020] KEHC 10266 (KLR), the High Court’s five judge bench undertook a comprehensive review of the doctrine and concluded that political sensitivity alone does not render a dispute non-justiciable. The Court held that where a matter raises questions concerning constitutional interpretation, constitutional compliance, legality, limits of public power or protection of constitutional rights, the matter becomes justiciable notwithstanding its political dimensions. The Court was categorical that the political question doctrine cannot be employed to shield unconstitutional conduct from judicial scrutiny. 188.The Court of Appeal adopted a similar approach in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] KECA 445 (KLR). The Court warned against an exaggerated conception of judicial restraint and held that the principle of separation of powers does not proscribe judicial review of the actions of other arms of government. The Court recognised that Parliament and the Executive remain subject to constitutional standards and that the Judiciary has a constitutional obligation to intervene where violations of those standards are alleged. The enduring lesson from Mumo Matemu is that judicial deference does not amount to judicial abdication. 189.In the celebrated dictum of Chief Justice Marshall in Cohens v Virginia, 19 U.S. (6 Wheat.) 264 (1821) that a court has “no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.” This proposition resonates deeply within Kenya’s constitutional framework. The Judiciary violates the constitutional design not only when it exceeds its jurisdiction but equally when it refuses to exercise jurisdiction expressly conferred by the Constitution. If Articles 22, 23 and 165 confer jurisdiction to determine whether constitutional requirements have been complied with, the Court cannot decline that responsibility merely because the dispute carries political consequences. 190.Applying these principles to the present consolidated petitions, it becomes apparent that the petitioners do not ask the Court to determine which individuals ought to serve as Cabinet Secretaries or Attorney-General. Nor do they ask the Court to substitute its own political preferences for those of the President or Parliament. The grievances advanced concern allegations that the nomination and approval processes violated constitutional requirements relating to integrity, qualifications, public participation, constitutional values, representation, fair administrative action, constitutional eligibility and adherence to the national values and principles of governance enshrined in Article 10. 191.The Petitioners further challenge the legality and constitutionality of the process through which certain nominees were nominated, vetted, approved and ultimately appointed to public office. These are not matters of political preference or policy, but constitutional questions falling squarely within the jurisdiction of the High Court. Article 165(3)(d) of the Constitution expressly confers upon the High Court the jurisdiction to hear any question respecting the interpretation of the Constitution, including the determination of whether any law is inconsistent with or in contravention of the Constitution and 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. Consequently, questions as to whether the President complied with Articles 10, 73, 129, 131, 152 and 232 of the Constitution; whether the National Assembly discharged its constitutional mandate in accordance with Articles 10, 95, 118 and 124; whether the nominees satisfied the constitutional qualifications for appointment; whether constitutional values and principles were observed; and whether the entire process met constitutional standards are all matters amenable to judicial scrutiny and determination by this Court through the application of identifiable constitutional norms and standards. 192.This Court therefore finds that the petitions are justiciable. The doctrine of separation of powers does not operate as a jurisdictional bar. The political question doctrine does not oust judicial review where constitutional violations are alleged. the Constitution expressly empowers this Court to determine whether public power has been exercised in accordance with constitutional requirements. 193.Having found that the Court is seized of jurisdiction, it is necessary to emphasize that the nature of that jurisdiction is one of judicial review, exercised within the confines of the doctrine of separation of powers. The Court's mandate is not to usurp the constitutional functions vested in the Executive or Parliament, but rather to ascertain whether those functions have been exercised in accordance with the Constitution and the law. Consequently, the Court cannot determine who ought to be nominated or appointed to public office, reassess the merits or political wisdom of executive decisions, conduct its own vetting of nominees, or substitute its judgment for that of the National Assembly in matters falling within Parliament's constitutionally assigned discretion. 194.The proper scope of judicial review is therefore limited to determining whether constitutional procedures were followed; whether constitutional qualifications and standards were observed; whether public participation was undertaken where required; whether the process was tainted by illegality, irrationality, procedural impropriety, bad faith or abuse of power; whether constitutional values and principles were respected; and whether the impugned actions were consistent with the Constitution. Provided the Executive and Parliament act within constitutional bounds, the Court must defer to their constitutionally assigned functions even where it might have reached a different conclusion. 195.Accordingly, this Court holds that it possesses jurisdiction under Articles 22, 23 and 165 of the Constitution to interrogate the constitutionality and legality of the nomination, vetting, approval and appointment processes challenged in these consolidated petitions. The doctrine of separation of powers requires restraint, respect and institutional comity, but it does not extinguish constitutional review. The Court's duty is not to govern but to ensure that those entrusted with the power to govern do so within the limits prescribed by the Constitution. b. Whether the nomination and reappointment of Cabinet Secretaries following the dissolution of Cabinet on 11th July 2024 was constitutional and lawful. 196.The Petitioners contended that following the dissolution of Cabinet on 11th July 2024, the 5th to 14th Interested Parties, who had previously served as Cabinet Secretaries, were constitutionally barred from being nominated and appointed again to State office. They argued that the President had dismissed the Cabinet in response to public dissatisfaction with government performance, accountability and integrity, and that the subsequent return of several of the same persons to the Cabinet undermined the rationale for the dissolution. In their view, the re-nomination and reappointment of those persons without disclosure of reasons violated Articles 1, 10, 35(3), 73, 75, 129, 152(5) and 153(2) of the Constitution. 197.The Respondents opposed that contention. Their position was that the Constitution gives the President authority to dismiss Cabinet Secretaries and thereafter nominate qualified persons for appointment to Cabinet, subject to approval by the National Assembly. They argued that Article 152(5)(b) does not state that a Cabinet Secretary dismissed by the President becomes ineligible for future public office. They further contended that the affected Interested Parties were subjected to a fresh constitutional and statutory appointment process, including parliamentary approval under Article 152(2) of the Constitution and the Public Appointments (Parliamentary Approval) Act. 198.The starting point is Article 152 of the Constitution, which establishes the office of Cabinet Secretary and prescribes the process of appointment and dismissal. Article 152 provides in relevant part that:“152.(1)The Cabinet consists of—a.the President;b.the Deputy President;c.the Attorney-General; andd.not fewer than fourteen and not more than twenty-two Cabinet Secretaries.(2)The President shall nominate and, with the approval of the National Assembly, appoint Cabinet Secretaries....(5)The President—a.may re-assign a Cabinet Secretary;b.may dismiss a Cabinet Secretary; andc.shall dismiss a Cabinet Secretary if required to do so by a resolution adopted under clauses (6) to (10).” 199.Article 152, therefore, creates two distinct but related powers. First, under Article 152(2), the President nominates Cabinet Secretaries and, with the approval of the National Assembly, appoints them. Secondly, under Article 152(5)(b), the President may dismiss a Cabinet Secretary. The text does not prescribe that dismissal under Article 152(5)(b) creates a permanent or temporary disqualification from future appointment. Nor does it provide that a person previously dismissed from Cabinet is incapable of being nominated afresh and subjected to the approval process contemplated under Article 152(2). the Constitution further imposes standards applicable to public office. Article 73 provides as follows:“73.(1)Authority assigned to a State officer—(a)is a public trust to be exercised in a manner that—i.is consistent with the purposes and objects of this Constitution;ii.demonstrates respect for the people;iii.brings honour to the nation and dignity to the office; andiv.promotes public confidence in the integrity of the office; and(b)vests in the State officer the responsibility to serve the people, rather than the power to rule them.(2)The guiding principles of leadership and integrity include—a.selection on the basis of personal integrity, competence and suitability, or election in free and fair elections;b.objectivity and impartiality in decision making, and in ensuring that decisions are not influenced by nepotism, favouritism, other improper motives or corrupt practices;c.selfless service based solely on the public interest, demonstrated by—i.honesty in the execution of public duties; andii.the declaration of any personal interest that may conflict with public duties;d.accountability to the public for decisions and actions; ande.discipline and commitment in service to the people.” 200.Article 75 further provides:“75.(1)A State officer shall behave, whether in public and official life, in private life, or in association with other persons, in a manner that avoids—a.any conflict between personal interests and public or official duties;b.compromising any public or official interest in favour of a personal interest; orc.demeaning the office the officer holds.(2)A person who contravenes clause (1), or Article 76, 77 or 78(2)—a.shall be subject to the applicable disciplinary procedure for the relevant office; andb.may, in accordance with the disciplinary procedure referred to in paragraph (a), be dismissed or otherwise removed from office.(3)A person who has been dismissed or otherwise removed from office for a contravention of the provisions mentioned in clause (2) is disqualified from holding any other State office.” 201.Article 75(3) is the provision relied upon most strongly by the Petitioners. However, it is important to read it carefully. The disqualification created by Article 75(3) does not arise from every dismissal from office. It arises only where a person has been dismissed or otherwise removed from office for contravention of Article 75(1), Article 76, Article 77 or Article 78(2), and in accordance with the applicable disciplinary procedure. the Constitution therefore links disqualification to a specific finding of constitutional misconduct and removal for that misconduct. A general dismissal under Article 152(5)(b) is not the same thing as removal for contravention of Chapter Six. 202.The distinction is constitutionally significant. Article 152(5)(b) grants the President authority to dismiss a Cabinet Secretary. It is a power concerning the composition and functioning of the Executive. Article 75, on the other hand, deals with misconduct, disciplinary procedures and disqualification from future State office. The two provisions serve different purposes. Article 152(5)(b) cannot be collapsed into Article 75(3) unless the dismissal was expressly founded on a finding that the affected Cabinet Secretary had contravened Article 75(1), Article 76, Article 77 or Article 78(2). This Court is guided by Article 259 of the Constitution, which provides:“259.(1)This Constitution shall be interpreted in a manner that—a.promotes its purposes, values and principles;b.advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;c.permits the development of the law; andd.contributes to good governance.a....(3)Every provision of this Constitution shall be construed according to the doctrine of interpretation that the law is always speaking and, therefore, among other things—(a)a function or power conferred by this Constitution on an office may be performed or exercised as occasion requires, by the person holding the office.” 203.The Supreme Court in In the Matter of the Kenya National Commission on Human Rights, Reference No. 1 of 2014 [2014] KESC 33 (KLR) described holistic interpretation as:“the contextual analysis of a constitutional provision, reading it alongside and against other provisions, so as to maintain a rational explication of what the Constitution must be taken to mean in light of its history, of the issues in dispute, and of the prevailing circumstances.” 204.Applying that interpretive approach, Articles 73, 75 and 152 must be read together and harmoniously. Article 152 permits the President to dismiss a Cabinet Secretary. Article 75 imposes leadership and integrity obligations and prescribes consequences where a State officer is removed for contravention of specified provisions. A dismissal under Article 152(5)(b), without more, cannot be treated as a finding of misconduct under Article 75. To do so would import into Article 152 consequences that the Constitution did not prescribe. 205.The Court also bears in mind that constitutional disqualifications from public office must be expressly grounded in the Constitution or in legislation enacted pursuant to the Constitution. They cannot be inferred lightly. Articles 99, 137 and 193 of the Constitution demonstrate that where the Constitution intends to create disqualifications from elective office, it does so expressly. Similarly, Article 75(3) expressly creates disqualification where a person has been removed from office for contravention of specified Chapter Six provisions. It would therefore be impermissible for this Court to infer an additional disqualification merely from the fact of dismissal under Article 152(5)(b). 206.The Petitioners urged the Court to find that because the President dissolved the Cabinet following widespread public dissatisfaction, the affected Cabinet Secretaries were thereby rendered unsuitable for future appointment. The Court appreciates the force of the Petitioners’ concern. The President’s decision to dissolve Cabinet was publicly presented as a response to concerns about governance, accountability, efficiency, effectiveness and responsiveness. The immediate return of some of the former Cabinet Secretaries may therefore appear, at a political level, to raise questions of consistency and accountability. 207.However, political inconsistency and constitutional invalidity are not synonymous. The Court is not called upon to determine whether the decision to return some former Cabinet Secretaries was politically persuasive or administratively wise. The Court is called upon to determine whether the Constitution prohibited their nomination and appointment. In the absence of an express constitutional bar, the Court cannot invalidate an appointment merely because the political rationale for the dismissal and subsequent nomination appears contested. 208.The Court has considered the President’s address to the nation on 11th July 2024 and Gazette Notice No. 8440 of 2024. In the address, the President stated in part:“…I have, today, in line with the powers given to me by Article 152(1) and 152(5)(b) of the Constitution and Section 12 of the Office of the Attorney-General Act, decided to dismiss with immediate effect all the Cabinet Secretaries and Attorney-General of the Cabinet of Kenya, except the Prime Cabinet Secretary, the Cabinet Secretary for Foreign Affairs and Diaspora Affairs, and of course the office of the Deputy President is not affected in any way.” 209.The President further stated that the decision had been informed by a holistic appraisal of the performance of Cabinet, its achievements and challenges, and by the need to reorganize the Executive to foster responsive governance, efficiency, effectiveness, transparency and accountability in service delivery. The decision was therefore collective and institutional in character. It was directed at reconstituting the Executive as a whole. It was not expressed as a disciplinary measure or a finding of misconduct against each individual Cabinet Secretary. 210.Neither the address nor the Gazette Notice attributed corruption, incompetence, abuse of office, violation of Chapter Six or any other constitutional misconduct to any specific Cabinet Secretary. The Petitioners did not place before the Court evidence that the affected Interested Parties had been found by a court, Parliament, a constitutional commission or any competent body to have violated Articles 73, 75, 76, 77 or 78 of the Constitution. In the absence of such finding, the Court cannot infer personal culpability from a collective dissolution of Cabinet. 211The Court is further guided by the distinction between ordinary language and constitutional process. The parties frequently referred to the return of some former Cabinet Secretaries as “reappointment.” In ordinary language, that description is understandable, because the affected persons had previously served in Cabinet, were dismissed, and were later returned to Cabinet. Constitutionally, however, the process following the dissolution was a fresh appointment process under Article 152(2). Each nominee had to be nominated by the President, vetted and approved by the National Assembly, and appointed by the President. 212.The Public Appointments (Parliamentary Approval) Act gives effect to the parliamentary approval role contemplated under Article 152(2). The Act requires the relevant committee of the National Assembly to conduct approval hearings, consider the suitability of nominees, receive public representations, and report to the House. It is through that statutory and constitutional process that the National Assembly scrutinizes qualifications, integrity, competence and suitability. 213.Section 6 of the Public Appointments (Parliamentary Approval) Act provides for approval hearings and public participation. It requires the Clerk of the relevant House to notify the public of the time and place for holding an approval hearing and to invite the public to submit representations on the suitability of the nominee. Section 7 sets out the matters to be considered by the committee in determining suitability, including the procedure used to arrive at the nominee, constitutional and statutory requirements relating to the office, and suitability of the nominee for appointment. 214.The approval process is therefore not a mere formality. It is the constitutional safeguard against unsuitable appointments. It ensures that every nominee, whether previously in office or not, is subjected to scrutiny by Parliament and the public before appointment. The relevant question is not whether the nominee previously served in a dissolved Cabinet, but whether the nominee presently satisfies the constitutional and statutory requirements for appointment. 215.The Petitioners were afforded an opportunity to submit memoranda regarding the suitability or otherwise of the nominees. The record indicates that out of the memoranda submitted to the Committee on Appointments, a substantial number were rejected because they were not made on oath as required by the applicable public appointments framework and by the invitation issued by the National Assembly. The invitation expressly required presentations or memoranda to be submitted in the form of a statement on oath, accompanied by supporting evidence. The Court will address the broader public participation challenge separately. For purposes of the present issue, it suffices to state that the nominees were subjected to an approval process in which members of the public were invited to participate and the National Assembly exercised its constitutional mandate. 216.The Petitioners further contended that the President was constitutionally required to disclose reasons for reappointing persons who had been part of the dissolved Cabinet. They relied on Article 35(3), which provides:“35(3)The State shall publish and publicise any important information affecting the nation.” 217.The Petitioners also relied on Article 129, which provides:“129.Principles of executive authority(1)Executive authority derives from the people of Kenya and shall be exercised in accordance with this Constitution.(2)Executive authority shall be exercised in a manner compatible with the principle of service to the people of Kenya, and for their well-being and benefit.” 218.The Court accepts that executive authority is accountable authority. The President is not above the Constitution and every exercise of presidential power must comply with Articles 10, 129, 131 and 259. However, the Constitution does not expressly impose a duty upon the President to publish reasons explaining why a person who previously served in Cabinet has been nominated again, provided the nomination is transmitted to the National Assembly for approval and the nominee is subjected to the constitutionally prescribed vetting process. 219.This does not mean that presidential discretion is unfettered. No constitutional power is unfettered. The President’s nomination power remains subject to the Constitution, including the requirements of integrity, competence, suitability, inclusivity, public participation through parliamentary approval, and judicial review for illegality, irrationality, procedural impropriety or constitutional violation. However, the Court cannot impose an additional obligation not found in the Constitution or statute, namely that the President must separately justify the nomination of a former Cabinet Secretary solely because that person previously served in a dissolved Cabinet. 220.The High Court’s role in reviewing appointments was addressed in Kenya Youth Parliament & 2 Others v Attorney General & Another; Kenya for Peace with Truth and Justice & Another (Interested Parties), Constitutional Petition No. 101 of 2011 [2012] KEHC 5436 (KLR). In that case, the Court stated:“The process of the nomination, confirmation and appointment of the Second Respondent is the central attack in the present Petition and we find that we are clothed with the requisite jurisdiction being as we are, the High Court which is the supreme upholder and protector of the Constitution and we have only one option, to obey each command of the Constitution. We appreciate and respect the doctrine of separation of powers but find that in this case it is not applicable. We would not be wandering into the no go zones of the Executive by venturing into the matter of the appointment of the Director of Public Prosecutions to interrogate the constitutionally prescribed process under Article 157 of the Constitution. In actual fact it is this Court’s sole mandate to provide checks and balances for the Executive and the Court will not hesitate to interfere when called upon to enter and interpret the Constitution and supervise the exercise of constitutional mandates. We find that to do otherwise would be a dereliction of our constitutional mandate.” 221.The principle from that authority is that appointment processes are not immune from judicial scrutiny. The Court may interrogate whether constitutional procedures were followed and whether constitutional standards were violated. However, that jurisdiction does not permit the Court to substitute its own political or administrative preferences for the constitutionally vested discretion of the President and the National Assembly. 222.The Court of Appeal in the Mumo Matemu case (supra) similarly emphasized both judicial review and institutional deference. The Court stated:“It is not in doubt that the doctrine of separation of powers is a feature of our constitutional design and a pre-commitment in our constitutional edifice. However, separation of powers does not only proscribe organs of government from interfering with the other’s functions. It also entails empowering each organ of government with countervailing powers which provide checks and balances on actions taken by other organs of government. Such powers are, however, not a license to take over functions vested elsewhere. There must be judicial, legislative and executive deference to the repository of the function.” 223.The Court of Appeal further stated:“[Separation of powers] must mean that the courts must show deference to the independence of the Legislature as an important institution in the maintenance of our constitutional democracy as well as accord the Executive sufficient latitude to implement legislative intent. Yet, as the Respondents also concede, the Courts have an interpretive role - including the last word in determining the constitutionality of all governmental actions.” 224.That is the balance this Court must maintain. The Court must not abdicate its constitutional duty to review public appointments. Equally, it must not arrogate to itself the power to determine who should or should not serve in Cabinet where the Constitution has vested nomination and appointment powers in the President, subject to approval by the National Assembly. 225.Applying those principles to the present case, the Court finds that the dismissal of the 5th to 14th Interested Parties under Article 152(5)(b) did not, by itself, render them constitutionally ineligible for future appointment. There was no finding that they had violated Article 75, 76, 77 or 78 of the Constitution. There was no disciplinary process resulting in removal for breach of Chapter Six. There was no judicial, parliamentary or constitutional commission finding disqualifying them from public office. 226.To hold otherwise would produce untenable constitutional consequences. If dismissal under Article 152(5)(b) automatically rendered a person ineligible for future public office, the President would possess unilateral power to impose a serious constitutional disability upon a citizen without investigation, hearing, parliamentary scrutiny or judicial determination. Such a construction would undermine Articles 27, 47 and 50 of the Constitution, which protect equality, fair administrative action and fair hearing. It would also attach grave legal consequences to a dismissal power that the Constitution does not define as disciplinary in nature. 227.The Court must prefer an interpretation that promotes constitutional rights, the rule of law and good governance. Article 152(5)(b) should therefore be understood as conferring upon the President authority to terminate a Cabinet Secretary’s tenure, but not as imposing a constitutional disqualification from future appointment. 228.The Court further finds that the dissolution of Cabinet on 11th July 2024 was a political and administrative reorganization of the Executive. It did not amount to a determination that each individual Cabinet Secretary lacked integrity, competence or suitability to hold public office. No adverse finding regarding the personal suitability of the affected Interested Parties can be inferred from the dissolution itself. 229.Consequently, neither the Constitution nor the Public Appointments (Parliamentary Approval) Act prohibits the President from nominating a former Cabinet Secretary for appointment to Cabinet, provided that the nominee satisfies the relevant constitutional requirements and undergoes fresh parliamentary vetting and approval under Article 152(2). The legality of such appointment must be assessed on the basis of qualifications, integrity, competence, suitability and procedural compliance, not solely on the fact of prior dismissal. 2230.Accordingly, the Court finds that the nomination and appointment of the 5th to 14th Interested Parties was not unconstitutional merely because they had previously served in the Cabinet dissolved on 11th July 2024. The Petitioners’ challenge, to the extent that it was founded on the proposition that prior dismissal created an automatic constitutional bar to future appointment, fails. c) Whether the composition of the Cabinet complies with the Constitution, particularly the two-thirds gender principle and requirements of inclusivity and representation 231.The Petitioners and the Respondents adopted fundamentally different constitutional perspectives on whether the composition of the Cabinet complied with the Constitution, particularly the two-thirds gender principle and the broader requirements of inclusivity, equality, and representation. 232.The Petitioners contended that the nominations made by the President and approved by the National Assembly resulted in a Cabinet whose composition was constitutionally defective from inception. Their argument was that when the President, Deputy President, Prime Cabinet Secretary, Attorney-General and Cabinet Secretaries were considered together as constituting the Cabinet under Article 152 of the Constitution, the resulting composition comprised seventeen men and eight women, thereby placing approximately 68% of the membership in the hands of one gender. According to the Petitioners, this violated Article 27(8) of the Constitution, which requires the State to take legislative and other measures to ensure that not more than two-thirds of the members of appointive bodies are of the same gender. 233.The Petitioners further argued that constitutional appointments are not merely about individual qualifications but must also reflect the national values and principles of governance under Article 10, including inclusiveness, equality, non-discrimination, protection of the marginalized and representation of the diversity of the Kenyan people. In their view, the appointed Cabinet failed to meet the constitutional threshold on gender representation and did not adequately reflect the constitutional commitment to inclusivity and the participation of marginalized and vulnerable groups. 234.The Respondents, on the other hand, rejected that interpretation and maintained that the Cabinet was constituted in full compliance with the Constitution. They argued that Article 27(8) could not be read in isolation but had to be interpreted together with Articles 10, 73, 129, 152 and 232 of the Constitution, which require that appointments to public office take into account merit, competence, integrity, suitability and effective governance. 235.According to the Respondents, the Constitution does not demand a rigid or mechanical numerical application of the gender principle divorced from other constitutional considerations. They maintained that the President exercised his constitutional authority in a manner that balanced gender considerations with the need to secure a competent and effective Cabinet while also ensuring regional, ethnic, political and social diversity. 236.The Respondents further contended that the Cabinet reflected the face of Kenya by drawing members from different regions and communities and that the constitutional value of inclusivity extends beyond gender representation alone. They also emphasized that the Constitution entrusts the President with the power to nominate Cabinet Secretaries and the National Assembly with the responsibility of vetting and approving those nominees through a process involving public participation and parliamentary scrutiny. 237.Consequently, they argued that the Court should exercise restraint and not substitute its own assessment for that of the constitutionally mandated appointing and approving authorities, absent a clear constitutional violation. The Respondents additionally pointed to subsequent Cabinet changes and appointments made after the filing of the petitions, arguing that the Cabinet composition had evolved and that the Petitioners' challenge was premised on an outdated numerical assessment. Ultimately, they maintained that no evidence had been presented to demonstrate discrimination, exclusion or unconstitutional conduct and that the appointments satisfied the constitutional requirements of inclusivity, equality, representation and good governance. Whether the composition of the Cabinet complied with the Constitution, particularly the two-thirds gender principle under Article 27(8) 238.Having determined that the two-thirds gender principle embodied in Article 27(8) of the Constitution is a binding constitutional obligation and that, in relation to appointive bodies, it is not subject to the doctrine of progressive realization in the manner contemplated by the Supreme Court for elective institutions, the Court must now determine whether the Cabinet, as presently constituted, complies with that constitutional requirement. That inquiry requires the Court to address three interrelated questions. First, what constitutes the Cabinet for purposes of Article 27(8) of the Constitution. Secondly, whether the Cabinet, properly constituted and calculated, satisfies the constitutional threshold that not more than two-thirds of its members be of the same gender. Thirdly, what is the appropriate constitutional consequence of any non-compliance established by the evidence before the Court. 239.The point of departure is the Constitution itself. Article 152 establishes the Cabinet and provides in explicit terms:“152.Cabinet(1)The Cabinet consists of—(a)the President;(b)the Deputy President;(c)the Attorney-General; and(d)not fewer than fourteen and not more than twenty-two Cabinet Secretaries.” 240.The constitutional text is clear, exhaustive and leaves little room for interpretive uncertainty. the Constitution itself identifies the members who collectively constitute the Cabinet. It follows that any constitutional assessment of compliance with Article 27(8) must be undertaken by reference to the body expressly identified under Article 152(1). The Court cannot exclude any office specifically included by the Constitution, nor can it add offices not designated by the Constitution as members of the Cabinet. 241.Of particular significance in the present dispute is the position of the Attorney-General. Some of the parties appeared to treat the Attorney-General as distinct from the Cabinet for purposes of the constitutional computation. Such an approach cannot be reconciled with the express language of Article 152(1)(c). the Constitution unequivocally identifies the Attorney-General as a member of the Cabinet. Consequently, whenever the Court is called upon to determine whether the Cabinet complies with Article 27(8), the Attorney-General must necessarily be included in the computation. To exclude the Attorney-General would be to amend Article 152(1) through interpretation, which is impermissible. 242.Equally important is the position of the Secretary to the Cabinet. Article 154 establishes that office and provides:“154(1)There is established the office of Secretary to the Cabinet, which is an office in the public service.(2)The Secretary to the Cabinet shall—(a)be nominated and, with the approval of the National Assembly, appointed by the President; and(b)may be dismissed by the President.(3)The Secretary to the Cabinet shall—a.have charge of the Cabinet office;b.be responsible, subject to the directions of the Cabinet, for arranging the business, and keeping the minutes, of the Cabinet;c.convey the decisions of the Cabinet to the appropriate persons or authorities; andd.have other functions as directed by the Cabinet or prescribed by national legislation.” 243.A careful reading of Articles 152 and 154 demonstrates that the Constitution deliberately distinguishes between the Cabinet and the Secretariat that serves it. The Secretary to the Cabinet performs important administrative and coordinating functions. The office holder arranges Cabinet business, maintains records of Cabinet proceedings and communicates Cabinet decisions. However, nowhere does Article 154 confer membership of the Cabinet upon the Secretary to the Cabinet. The office exists to support the Cabinet, not to constitute part of it. 244.The distinction is constitutionally significant. The Secretary to the Cabinet attends Cabinet meetings not as a member of the Cabinet but as the principal administrative officer responsible for facilitating Cabinet business. Had the framers intended the Secretary to the Cabinet to be counted as a member of the Cabinet, they would have expressly included that office in Article 152(1). The omission cannot be treated as accidental. Accordingly, the Court finds that the Secretary to the Cabinet must be excluded from any computation undertaken under Article 27(8). 245.The inevitable conclusion is that the Cabinet for purposes of Article 27(8) comprises only the offices expressly identified in Article 152(1), namely the President, the Deputy President, the Attorney-General and the Cabinet Secretaries. That is the constitutional body against which compliance with the two-thirds gender principle must be assessed. The constitutional significance of the Cabinet extends beyond Article 152. Article 130(2) provides:“The composition of the national executive shall reflect the regional and ethnic diversity of the people of Kenya.” 46.Although Article 130(2) speaks specifically to regional and ethnic diversity, it reflects a broader constitutional commitment to inclusiveness and representative governance. The national executive is not intended to be the preserve of any particular gender, region, ethnicity or social group. the Constitution envisages an executive that mirrors the diversity of Kenya and reflects the aspirations of a pluralistic democratic society. This constitutional objective is reinforced by Articles 10, 27, 56, 73 and 232, all of which emphasize equality, inclusiveness, non-discrimination, representation and fair access to public office. 247.The Court therefore approaches the question of Cabinet composition not as a purely mathematical exercise but as one situated within the transformative constitutional vision of 2010. the Constitution sought to dismantle historical structures of exclusion and concentration of power. It sought to replace them with a governance framework founded upon inclusiveness, participation, equality and accountability. The two-thirds gender principle is one of the principal constitutional instruments through which that transformation is to be achieved. 248.Turning to the evidence before the Court, the Petitioners initially demonstrated that the Cabinet as constituted following the August 2024 appointments consisted of seventeen men and eight women. The Petitioners argued that such composition failed to attain the constitutional threshold required by Article 27(8). The Respondents, however, contended that the Court should consider the broader trajectory of appointments and subsequent Cabinet reconfigurations rather than focusing on the composition existing at the commencement of the litigation. 249.We agree that constitutional adjudication must be grounded upon the factual circumstances prevailing at the time of determination. Courts do not determine constitutional questions in a vacuum. They determine disputes based upon the actual state of affairs existing when judgment is rendered. Consequently, where the composition of a constitutional body changes during the pendency of proceedings, the Court must assess compliance on the basis of the final composition of that body rather than on an interim configuration that may subsequently have been altered. 250.The record demonstrates that following the initial appointments challenged in these proceedings, further nominations, approvals and appointments were made. Cabinet reshuffles also occurred. By the time of determination of these petitions, the composition of the Cabinet had evolved substantially from the configuration originally challenged by the Petitioners. 251.The evidence before the Court establishes that, as at June 2026, the Cabinet consists of the President, the Deputy President, the Attorney-General and twenty-two Cabinet Secretaries, making a total membership of twenty-five. Of those twenty-five members, seven are women, namely the Attorney-General, Ms. Dorcas Agik Oduor, and Cabinet Secretaries Alice Wahome, Deborah Mlongo Barasa, Rebecca Miano, Hanna Wendot Cheptumo, Beatrice Askul Moe and Soipan Tuya. The remaining eighteen members are men. 252.Numerically, women, therefore, constitute approximately 28% of the Cabinet while men constitute approximately 72%. Put differently, eighteen out of twenty-five members of the Cabinet are male. The consequence is that more than two-thirds of the members of the Cabinet are of the same gender. 253.The constitutional threshold prescribed by Article 27(8) is readily ascertainable. In a body consisting of twenty-five members, compliance with the two-thirds principle requires that neither gender exceeds sixteen members. Correspondingly, the underrepresented gender must occupy at least one-third of the positions. In the present case, a Cabinet of twenty-five members would require at least nine members of the underrepresented gender in order to satisfy the constitutional threshold. 254.The current Cabinet contains seven women. It therefore falls short of the constitutional minimum by two members. Whether one approaches the matter through percentages or absolute numbers, the conclusion remains the same. The Cabinet, as presently constituted, does not satisfy the constitutional requirement that not more than two-thirds of its members be of the same gender. 255.The Respondents urged the Court to adopt a more flexible approach and to consider the broader context of governance, including the fact that women occupy several important ministerial portfolios. It was submitted that women currently serve in strategically significant positions and that the Government has made substantial progress towards achieving gender parity when compared to previous administrations. 256.We readily acknowledge that progress has been made. We also acknowledge that women currently occupy some of the most influential offices within the Government. However, the constitutional inquiry before the Court is not whether progress has been made relative to previous administrations. Nor is it whether women hold important portfolios. The constitutional inquiry is whether the appointive body under consideration complies with Article 27(8). 257.The Constitution does not measure compliance by the significance of offices held. It measures compliance by the composition of the body itself. The framers deliberately adopted a numerical threshold because they understood that substantive equality requires meaningful participation in decision-making structures. A body may contain highly influential women and still fail the constitutional threshold. Conversely, a body may satisfy the constitutional threshold regardless of the particular portfolios assigned to its members. 258.We are therefore unable to accept the proposition that the constitutional deficit identified in the present case can be cured by reference to the importance of the offices occupied by women within the Cabinet. Such an approach would introduce considerations not contemplated by Article 27(8) and would undermine the certainty and objectivity that the constitutional provision was intended to achieve. 259.The Respondents further argued that the Court should treat the two-thirds gender principle as an aspirational constitutional objective whose realization depends upon competing considerations, including merit, competence, regional balance, ethnic diversity and political realities. We are unable to agree. 260.As already demonstrated, Article 27(8) employs mandatory language. The State‘shall’ take legislative and other measures to implement the principle. The Supreme Court in In the Matter of the Principle of Gender Representation in the National Assembly and the Senate, Advisory Opinion No. 2 of 2012 did not dilute the mandatory character of that obligation. Rather, the Supreme Court recognized that the practical realities surrounding electoral systems justified progressive realization in relation to elective bodies. The Court did not hold that appointive bodies are exempt from immediate compliance. 261.Indeed, the distinction drawn by the Supreme Court between elective and appointive bodies is central to the present dispute. Elective institutions are constituted through the sovereign choices of voters. Appointive institutions, on the other hand, are constituted through deliberate decisions made by constitutional actors exercising powers conferred upon them by the Constitution. Consequently, the practical impediments that justified progressive realization in relation to Parliament do not arise in the same manner in relation to the Cabinet. 262.The President directly controls the nomination process under Article 152. The National Assembly directly controls the approval process under Article 152(2). Both institutions, therefore, possess the constitutional capacity to ensure compliance with Article 27(8). The resulting composition of the Cabinet is not the product of electoral uncertainty but of conscious constitutional choices. 263.This position is consistent with the decisions in Federation of Women Lawyers Kenya (FIDA-K) & 5 Others v Attorney General & Another [2011] eKLR and Marilyn Muthoni Kamuru & 2 Others v Attorney General & Another [2016] eKLR, both of which recognized that compliance with the two-thirds gender principle is immediate and enforceable in relation to appointive offices. We respectfully adopt that reasoning. 264.Accordingly, we find that the Cabinet, being an appointive body within the meaning of Article 27(8), is required to comply immediately with the two-thirds gender principle and that the doctrine of progressive realization cannot be invoked to justify non-compliance. 265.We are persuaded that the current composition of the Cabinet does not comply with Article 27(8) of the Constitution. The constitutional threshold requiring that not more than two-thirds of the members of an appointive body be of the same gender has not been attained. The composition of the Cabinet consequently falls short of the constitutional standard established by Articles 27(3), 27(6), 27(8), 10, 130(2) and 232 of the Constitution. 266.On whether that finding should lead to the invalidation of the Cabinet and the appropriate remedies flowing from that constitutional violation are matters that shall be considered separately in the remedies section of this judgment. Whether the composition of the Cabinet complied with the Constitutional requirements of inclusivity, representation, equality and non-discrimination 267.The Petitioners further challenge the composition of the Cabinet on the ground that it does not adequately reflect the diversity of the people of Kenya and fails to provide sufficient representation for persons with disabilities, youth, minorities, marginalized communities and other vulnerable groups contemplated by the Constitution. Their argument is that beyond the two-thirds gender principle, the Constitution imposes a broader obligation upon the national executive to mirror the pluralistic character of Kenyan society and to ensure that historically disadvantaged groups participate meaningfully in governance and public affairs. 268.The Respondents, on their part, maintain that the Cabinet reflects the regional, ethnic and social diversity of the Republic and that the Constitution does not require every identifiable group within Kenyan society to be represented in the Cabinet. They further contend that Cabinet appointments must take into account a multiplicity of constitutional values, including merit, competence, suitability, integrity and effective governance. 269.The starting point is the Constitution itself. Article 10(1) provides that the national values and principles of governance bind all State organs, State officers, public officers and all persons whenever they apply or interpret the Constitution, enact, apply or interpret any law, or make or implement public policy decisions. Article 10(2) identifies those values to include patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination, protection of the marginalized, good governance, integrity, transparency and accountability. These are not aspirational ideals. They are binding constitutional norms that must inform the exercise of all public power, including the appointment of members of the Cabinet. More specifically, Article 130(2) of the Constitution provides that:“The composition of the national executive shall reflect the regional and ethnic diversity of the people of Kenya.” 270.The significance of this provision cannot be understated. It embodies one of the central transformative objectives of the Constitution of Kenya, 2010, namely the creation of a national government that belongs to all Kenyans and reflects the diversity of the Republic. The provision emerged against a historical backdrop in which public appointments were frequently criticized for ethnic, regional and political exclusion. the Constitution therefore sought to ensure that the national executive would be representative, inclusive and nationally reflective. 271.The Supreme Court underscored this transformative objective in Speaker of the Senate & Another v Attorney General & 4 Others; Advisory Opinion Reference No. 2 of 2013 [2013] eKLR. Although the dispute concerned the role of the Senate in the legislative process, the Supreme Court examined the broader architecture of the Constitution and emphasized that the 2010 Constitution was deliberately designed to foster inclusion, participation and representation. The Court recognized that the Constitution seeks to remedy historical exclusion and establish governance structures reflective of Kenya's diversity. The decision affirms that constitutional provisions such as Articles 10 and 130(2) are not symbolic declarations but substantive constitutional commitments that must guide the conduct of all State organs. 272.Similarly, in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] KECA 445 (KLR), the Court of Appeal held that public appointments under the Constitution must be assessed against the national values and principles of governance contained in Article 10. The Court rejected a narrow conception of public appointments founded solely on individual qualifications and emphasized that constitutional appointments must advance integrity, accountability, transparency, inclusiveness and good governance. The significance of the Mumo Matemu decision (supra) lies in its recognition that merit and inclusivity are not competing constitutional values. Rather, the Constitution requires both. Competence and suitability remain important considerations, but they must be pursued within a constitutional framework that also promotes representation, diversity and inclusiveness. 273.The same approach was adopted by the High Court in Community Advocacy and Awareness Trust & 8 Others v Attorney General & 6 Others [2012] eKLR, where the Court considered appointments to constitutional commissions and public offices. The Court held that appointments to public office must reflect the national values in Article 10 and that appointing authorities are constitutionally obligated to consider regional balance, inclusiveness and representation. The Court emphasized that public institutions established under the Constitution cannot be monopolized by particular regions, communities or interests because they exist to serve the entire Kenyan people. 274.Likewise, in Trusted Society of Human Rights Alliance v Attorney General & 2 Others [2012] eKLR, the High Court reiterated that constitutional appointments are no longer matters of unfettered executive discretion. They are constrained by the values and principles embodied in Articles 10 and 232 of the Constitution. The Court emphasized that appointments to public office must be measured against constitutional standards of equality, inclusiveness, integrity and accountability. 275.The jurisprudence emerging from these authorities demonstrates that the President, when constituting the Cabinet, must consciously take into account the constitutional values of inclusivity, equality, protection of minorities, representation of marginalized groups and regional diversity. Articles 10 and 130(2) therefore impose substantive obligations and not merely aspirational declarations. However, the Court must also determine the content of those obligations. 277.The Petitioners' argument appears to suggest that the Cabinet is constitutionally defective because it does not contain representatives of every identifiable category protected under the Constitution. With respect, such an interpretation cannot be sustained. Article 130(2) requires the national executive to reflect the regional and ethnic diversity of the people of Kenya. It does not require exact demographic proportionality or mathematical representation of every ethnic community, religious group, age category or social constituency. Kenya comprises numerous communities and social groups. A Cabinet constitutionally limited to twenty-five members cannot realistically accommodate every conceivable demographic category. 278.The Court is persuaded by comparative jurisprudence on this point. In Minister of Finance v Van Heerden 2004 (6) SA 121 (CC), the Constitutional Court of South Africa observed that transformative constitutionalism seeks substantive equality rather than formal numerical parity. The Court emphasized that equality is achieved through meaningful inclusion and the dismantling of systemic exclusion rather than through rigid arithmetic calculations. Similarly, in Reference re Provincial Electoral Boundaries (Sask.), [1991] 2 SCR 158, the Supreme Court of Canada held that constitutional representation is not merely a question of numerical equality but one of effective representation. The Court recognized that representation must take account of geography, minorities, communities of interest and social realities. Although that decision arose in the context of electoral representation, the underlying principle is instructive: constitutional representation is qualitative as well as quantitative. 279.This Court therefore finds that the constitutional standard established by Articles 10 and 130(2) is one of substantial and reasonable representativeness viewed holistically. The inquiry is not whether every community or social category secured a Cabinet position, but whether the composition of the Cabinet demonstrates a genuine effort to reflect the diversity of Kenya and avoids domination by a particular region, community or interest group. 280.The Petitioners also rely upon Article 54 of the Constitution concerning persons with disabilities. Article 54(2) provides that:“The State shall ensure the progressive implementation of the principle that at least five per cent of the members of the public in elective and appointive bodies are persons with disabilities.” 281.Unlike Article 27(8), which employs mandatory language requiring immediate implementation of the gender principle in appointive bodies, Article 54(2) expressly adopts the language of progressive implementation. the Constitution therefore recognizes that realization of disability representation may require gradual institutional and legislative measures. 282.The Court does not read Article 54(2) as imposing a mandatory obligation requiring the President to appoint a specific number of persons with disabilities to the Cabinet. Rather, it imposes a broader constitutional duty upon the State to progressively achieve representation of persons with disabilities across elective and appointive bodies generally. While the appointment of persons with disabilities to the Cabinet would undoubtedly advance the transformative aspirations of the Constitution, the Constitution itself does not establish a specific Cabinet quota. 283.The same reasoning applies to Articles 55, 56 and 57. Article 55 requires the State to take measures, including affirmative action programmes, to ensure that youth participate in political, social, economic and other spheres of life. Article 56 requires affirmative action programmes to ensure that minorities and marginalized groups participate and are represented in governance and other spheres of life. Article 57 requires the State to take measures to ensure the rights and dignity of older members of society. These provisions undoubtedly impose constitutional obligations upon the State. However, they do not prescribe mandatory Cabinet allocations or quotas. Their focus is broader participation and inclusion in governance rather than the reservation of specific Cabinet positions. 284.We are therefore not persuaded that the absence of a specific youth representative, minority representative, marginalized group representative or older persons' representative in the Cabinet necessarily constitutes a constitutional violation. To reach such a conclusion would be to transform broad constitutional principles into rigid appointment quotas that the Constitution itself does not establish. 285.We now turn to the allegation of discrimination. Article 27(4) provides that:“The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.” 286.A claim founded upon Article 27 requires proof of differential treatment, exclusion, disadvantage or discrimination on a prohibited ground. It is not sufficient merely to demonstrate that a particular group is underrepresented. The Court must be satisfied that the appointments resulted from direct discrimination, indirect discrimination, arbitrary exclusion or unequal treatment prohibited by the Constitution. 287.The Petitioners have not demonstrated that any individual or group was excluded from Cabinet appointments on account of disability, age, ethnicity, social origin, religion or any other prohibited ground. Neither have they shown that the President or the National Assembly adopted a policy or practice designed to disadvantage any protected category of persons. Save for the issue relating to gender representation under Article 27(8), which has been separately addressed, the evidence before the Court does not establish discrimination within the meaning of Article 27(4). 288.From the foregoing, we find that the Constitution requires the Cabinet to reflect the regional and ethnic diversity of the people of Kenya and to be constituted in a manner consistent with the values of inclusivity, equality, non-discrimination, human dignity and protection of the marginalized embodied in Articles 10 and 130(2). The Court further finds that Articles 54, 55, 56 and 57 impose important constitutional obligations directed at promoting participation and inclusion of persons with disabilities, youth, minorities, marginalized groups and older members of society. However, neither the Constitution nor the jurisprudence of the superior courts requires exact demographic proportionality or the appointment of a representative of every identifiable group within Kenyan society. The constitutional test is one of substantial and reasonable representativeness assessed holistically. 289.Accordingly, while the Court encourages greater inclusion of persons with disabilities, youth, minorities and marginalized groups in future Cabinet appointments, it is not persuaded that the Petitioners have demonstrated a violation of Articles 10, 54, 55, 56, 57, 130(2) or 27(4) sufficient to invalidate the composition of the Cabinet. Save for the violation of the two-thirds gender principle under Article 27(8), which has been separately determined, the challenge founded upon inclusivity, representation, equality and non-discrimination fails. c. Whether the public participation, vetting and approval process undertaken by the National Assembly complied with the Constitution and the law 290.A central issue arising in these consolidated petitions is whether the public participation, vetting and approval process undertaken by the National Assembly in respect of the nominees for appointment as Cabinet Secretaries and Attorney-General complied with the Constitution and the law. 291.The Petitioners contend that the approval process was constitutionally deficient on several fronts. They argue that the period accorded to the public to participate was unreasonably short; that the public was not supplied with adequate information regarding the nominees to facilitate meaningful engagement; that a substantial number of public objections were excluded from consideration through the application of section 6(9) of the Public Appointments (Parliamentary Approval) Act; and that the Committee on Appointments failed to independently and rigorously scrutinize the nominees before recommending their approval. According to the Petitioners, the process amounted to a predetermined and formalistic exercise that fell short of the standards of public participation, accountability and oversight contemplated by Articles 10, 118, 94 and 95 of the Constitution. 292.The Respondents, on the other hand, maintain that the National Assembly faithfully discharged its constitutional mandate under Articles 118, 152 and 156 of the Constitution and complied with the procedures prescribed under the Public Appointments (Parliamentary Approval) Act and the National Assembly Standing Orders. They contend that the public was duly notified of the approval hearings through newspaper advertisements and other public platforms; that adequate opportunities were afforded to members of the public to submit views regarding the suitability of the nominees; that the requirement under section 6(9) of the Act was a lawful procedural safeguard intended to ensure that objections were verified and supported by evidence; and that the Committee on Appointments undertook a substantive evaluation of the nominees’ qualifications, competence, integrity and suitability, including consideration of reports from relevant oversight agencies. 293.The determination of this issue therefore calls upon the Court to examine the constitutional standards governing public participation and parliamentary approval proceedings, the role of Parliament as a constitutional check on executive appointments, and the extent to which courts may review the manner in which Parliament discharges its approval mandate. In particular, the Court must determine whether the process undertaken satisfied the constitutional threshold of meaningful public participation as developed in the jurisprudence of the superior courts; whether the rejection of unsworn memoranda was constitutionally permissible; whether Parliament exercised independent judgment in evaluating the nominees; and ultimately whether the approval process was constitutional, rational, transparent and procedurally fair. Public Participation 294.The starting point is Article 10(2)(a) of the Constitution, which identifies participation of the people as one of the national values and principles of governance binding all State organs whenever they make or implement public policy decisions. Article 118(1)(b) further obligates Parliament to facilitate public participation and involvement in its legislative and other business. The approval of Cabinet Secretaries and the Attorney-General constitutes “other business of Parliament” within the meaning of Article 118 and is therefore subject to the constitutional requirement of public participation. 295.The jurisprudence of the courts has consistently emphasized that public participation is not a mere procedural ritual. In Doctors for Life International v Speaker of the National Assembly & Others (CCT 12/05) [2006] ZACC 11, the Constitutional Court of South Africa held that public participation requires that citizens be accorded a meaningful opportunity to participate in governmental decision-making processes. The Court observed that public participation enhances the legitimacy of governmental decisions and strengthens democratic governance. Kenyan courts have repeatedly adopted and applied this reasoning. 296.Similarly, in Mui Coal Basin Local Community & 15 Others v Permanent Secretary Ministry of Energy & 17 Others [2015] eKLR, the High Court held that public participation is not a cosmetic exercise and that the public must be supplied with adequate information to enable them understand the issues under consideration and make informed contributions. The Court emphasized that participation must be informed, meaningful and effective. 297.The Court of Appeal in County Government of Kiambu v Robert N. Gakuru & Others [2017] eKLR elaborated that there is no single formula for public participation. What is required is that the public be afforded a reasonable opportunity to know about the issue under consideration and to present their views. The Court cautioned against adopting a rigid or mechanical approach and emphasized that both qualitative and quantitative aspects of participation are relevant. 298.These principles were subsequently synthesized by the Supreme Court in British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 5 Others; Kenya Tobacco Control Alliance & Another (Interested Parties); Mastermind Tobacco Kenya Limited (Affected Party) [2019] KESC 3 (KLR). The Supreme Court identified several guiding principles, including that public participation must be real and not illusory, purposive and meaningful, accompanied by reasonable notice and opportunity, and assessed according to the peculiar circumstances of each case. The Court further held that reasonableness rather than perfection is the constitutional standard. 299.The Supreme Court recently reaffirmed these principles in Cabinet Secretary for the National Treasury and Planning & 4 Others v Okiya Omtatah Okoiti & 52 Others; Bhatia (Amicus Curiae) [2024] KESC 63 (KLR), where it emphasized that public participation should not be reduced to a symbolic box-ticking ritual and that constitutional processes must involve genuine engagement capable of influencing decision-making. 300.Applying those principles to the present case, the evidence demonstrates that upon receipt of the nominations, the National Assembly published notices in newspapers of national circulation, invited public memoranda, notified the public of the dates and venues of the approval hearings and provided avenues through which members of the public could submit their views. The proceedings were conducted openly and broadcast through television, Parliament's website and other online platforms. Members of the public were therefore aware of the process and were afforded an opportunity to participate. 301.The Petitioners nevertheless argued that the period provided for public participation was too short. The evidence before the Court demonstrates that the notices inviting public participation were published seven days before the approval hearings were conducted by the Committee on Appointments. The public was therefore afforded a limited but identifiable period within which to submit memoranda and objections regarding the suitability of the nominees. However, reasonableness must always be assessed in context. Unlike legislative enactments, parliamentary approval proceedings are constitutionally time-sensitive and are designed to ensure continuity in government. the Constitution does not prescribe any minimum period within which public participation must be conducted. The test is whether the time afforded was sufficient to allow a reasonable opportunity for participation. In the circumstances of this case, and bearing in mind the constitutional timelines governing appointments to the Executive, we are unable to conclude that the notice period was so manifestly inadequate as to render the entire process unconstitutional. 302.The Petitioners also contended that the public was not supplied with sufficient information regarding the nominees. We do not agree. The names of the nominees, their curricula vitae and the offices to which they had been nominated were publicly disclosed. The approval hearings themselves provided additional information regarding their qualifications, experience and suitability. While more information may always be desirable, the Constitution requires reasonable facilitation of participation rather than exhaustive disclosure of every conceivable detail. The evidence before us demonstrates that the public had sufficient information to engage meaningfully with the process. 303.Having considered the constitutional framework, the applicable jurisprudence and the evidence placed before the Court, we are satisfied that the National Assembly complied with its obligation under Articles 10 and 118 of the Constitution to facilitate public participation in the approval process. The public was notified of the nominations, informed of the approval hearings, invited to submit memoranda, and afforded multiple avenues through which to express their views. While the period available for participation was admittedly brief, public participation is not measured by the length of time alone but by the reasonableness and effectiveness of the opportunity afforded in the circumstances of the particular case. 304.the Constitution does not demand a perfect process, nor does it require that every member of the public participate or that every view advanced be accepted. What it requires is a genuine opportunity for the public to be heard. We are therefore persuaded that the public participation undertaken by the National Assembly was real, purposive and meaningful. The process cannot be characterised as illusory, cosmetic or a mere box-ticking exercise. Consequently, we find no basis for holding that the approval proceedings were rendered unconstitutional on account of inadequate public participation. Rejection of Memoranda 305.The next complaint concerns the rejection of a substantial number of memoranda submitted by members of the public. Section 6(9) of the Public Appointments (Parliamentary Approval) Act provides:“Any person may, prior to the approval hearing and by written statement on oath, provide the Clerk with evidence contesting the suitability of a candidate.” 306.The Petitioners argued that this requirement imposes an unjustified limitation on public participation and effectively excludes many members of the public from the approval process. They submitted that the requirement for sworn affidavits creates procedural barriers inconsistent with Articles 10 and 118 of the Constitution.We are not persuaded by this submission. 307.The purpose of section 6(9) is readily apparent. Parliamentary approval proceedings frequently involve allegations touching on integrity, competence, criminal conduct and suitability for high public office. The requirement that objections be submitted on oath serves the legitimate purpose of ensuring that allegations are verified, accountable and supported by evidence. Without such a safeguard, parliamentary approval hearings would be susceptible to frivolous, malicious or unsubstantiated accusations. 308.The requirement does not prohibit participation. Rather, it regulates the manner in which objections challenging the suitability of nominees are presented. the Constitution permits reasonable procedural requirements designed to facilitate orderly and effective decision-making. We therefore find that section 6(9) serves a legitimate constitutional purpose and does not unjustifiably limit the right of public participation. 309.From the foregoing, it follows that Parliament acted lawfully in declining to consider memoranda that did not comply with the express requirements of section 6(9). The Committee on Appointments is a creature of the Constitution and statute and cannot disregard statutory requirements merely because compliance may be inconvenient. To hold otherwise would require Parliament to act contrary to the very law governing its proceedings. 310.We are also not persuaded that the rejection of non-compliant memoranda, without more, undermined the entire public participation exercise. The critical question is whether reasonable opportunities for participation existed. Members of the public were notified of the statutory requirements and afforded an opportunity to comply with them. Those who failed to do so cannot subsequently attribute the consequences of their non-compliance to Parliament. Parliamentary Vetting 311.We now turn to the vetting process itself. Articles 94 and 95 of the Constitution vest legislative authority in Parliament and confer upon the National Assembly an oversight role over State organs and public officers. In the context of public appointments, parliamentary approval constitutes one of the most important constitutional checks upon executive power. 312.the Constitution deliberately adopts a shared appointment process. The President nominates, but Parliament approves. Parliamentary approval is therefore intended to prevent unilateral executive appointments and to ensure that nominees satisfy constitutional standards of competence, integrity and suitability. 313.The Petitioners argued that the Committee on Appointments merely rubber-stamped the President's choices. The evidence before us does not support that contention. The record demonstrates that the Committee conducted approval hearings, questioned nominees regarding their qualifications and experience, considered memoranda received from the public and obtained information from oversight agencies including the Ethics and Anti-Corruption Commission (EACC), the Kenya Revenue Authority (KRA), the Directorate of Criminal Investigations (DCI), the Higher Education Loans Board (HELB) and the Office of the Registrar of Political Parties (ORPP). The Committee subsequently prepared reports setting out its findings and recommendations, which were debated and adopted by the House. 314.The fact that Parliament ultimately approved the nominees does not by itself establish that the process was predetermined. Courts must be careful not to equate approval with the absence of scrutiny. Parliamentary approval proceedings involve the exercise of judgment and discretion. The Court's role is not to determine whether Parliament reached the correct conclusion but whether Parliament complied with constitutional requirements in arriving at that conclusion. 315.The evidence demonstrates that Parliament considered the nominees' academic qualifications, professional experience, integrity records and suitability for office. It also considered information obtained from relevant oversight institutions. The Petitioners have not identified any specific adverse report from EACC, DCI, KRA or any other oversight body that Parliament ignored or concealed. In the absence of such evidence, the Court cannot conclude that Parliament failed to discharge its constitutional mandate. 316.The constitutional standard is one of rationality and procedural fairness. A parliamentary approval process will be unconstitutional where Parliament acts arbitrarily, ignores relevant considerations, considers irrelevant matters, or conducts proceedings in a manner that is fundamentally unfair. No such circumstances have been demonstrated here. 317.Indeed, the material before the Court shows that Parliament followed the procedure prescribed by Articles 152 and 156 of the Constitution, sections 6, 7 and 8 of the Public Appointments (Parliamentary Approval) Act and the relevant Standing Orders. The nominees were subjected to approval hearings, public participation was facilitated, oversight reports were obtained and considered, committee reports were prepared and tabled, and the House ultimately debated and voted upon the nominations. 318.Having carefully considered the Constitution, the statutory framework, the evidence before the Court and the applicable jurisprudence, we find that the National Assembly substantially complied with the constitutional requirements governing public participation, vetting and approval of the nominees for appointment as Cabinet Secretaries and Attorney-General. 319.We find that adequate notice was given to the public, that the period afforded for participation was reasonable in the circumstances, and that sufficient information was provided to enable meaningful engagement. We further find that the public participation undertaken satisfied the standards articulated in the BAT case (supra) and the Okiya Omtatah case (supra). 320.We also find that section 6(9) of the Public Appointments (Parliamentary Approval) Act is constitutionally valid, that Parliament acted lawfully in rejecting memoranda that failed to comply with its requirements, and that such rejection did not invalidate the public participation process. 321.It is our considered view that the National Assembly discharged its constitutional oversight mandate under Articles 94 and 95, independently scrutinized the nominees, considered the relevant constitutional and statutory criteria, and conducted approval hearings that were rational, procedurally fair and constitutionally compliant. The evidence does not support the contention that Parliament merely rubber-stamped the President's nominees. Accordingly, we find no basis upon which to invalidate the approval process undertaken by the National Assembly. e) Whether the nomination and appointment of the Attorney-General complied with the Constitution. 322.The question before the Court is whether the nomination, approval and appointment of the Attorney-General complied with the Constitution, particularly Articles 10, 156, 166 and 232. The Petitioners challenged the appointment principally on the ground that the nominee was not identified through an open, competitive and merit-based recruitment process. They contended that the President could not simply nominate a person for appointment as Attorney-General without a prior process of advertisement, shortlisting, interviews and competitive assessment. The Respondents, on the other hand, maintained that Article 156 of the Constitution establishes a specific constitutional mechanism for appointment of the Attorney-General, namely nomination by the President, approval by the National Assembly and appointment by the President, and that no prior competitive recruitment process is required. 323.The starting point must be the text of the Constitution itself. Article 156 establishes the office of the Attorney-General and provides as follows:“156.Attorney-General(1)There is established the office of Attorney-General.(2)The Attorney-General shall be nominated by the President and, with the approval of the National Assembly, appointed by the President.(3)The qualifications for appointment as Attorney-General are the same as for appointment to the office of Chief Justice.(4)The Attorney-General—a.is the principal legal adviser to the Government;b.shall represent the national government in court or in any other legal proceedings to which the national government is a party, other than criminal proceedings; andc.shall perform any other functions conferred on the office by an Act of Parliament or by the President. 324.Article 156(2) is clear in its terms. It provides that the Attorney-General shall be nominated by the President and, with the approval of the National Assembly, appointed by the President. the Constitution therefore creates a three-stage process: first, nomination by the President; secondly, approval by the National Assembly; and thirdly, appointment by the President. The provision does not expressly require advertisement, competitive recruitment, shortlisting or interviews by an independent commission before the President exercises the power of nomination. Where the Constitution intends to require a particular appointment process, it says so either directly or by entrusting the process to a specific constitutional or statutory body. The Court must therefore give effect to the constitutional text as enacted. 325.This conclusion is fortified by Article 132(2) of the Constitution, which provides in material part that:“132.Functions of the President(2)The President shall nominate and, with the approval of the National Assembly, appoint, and may dismiss—a.the Cabinet Secretaries, in accordance with Article 152;b.the Attorney-General, in accordance with Article 156;c.the Secretary to the Cabinet in accordance with Article 154;d.Principal Secretaries in accordance with Article 155;e.high commissioners, ambassadors and diplomatic and consular representatives; andf.in accordance with this Constitution, any other State or public officer whom this Constitution requires or empowers the President to appoint or dismiss.” 326.Article 132(2)(b), read together with Article 156(2), confirms that the Constitution vests the power of nomination in the President, subject to the approval of the National Assembly. The President’s power is not absolute or immune from constitutional scrutiny. It is constrained by the Constitution, including the national values under Article 10, the qualifications under Articles 156(3) and 166, the requirements of integrity under Chapter Six, and the approval role of the National Assembly. However, the Court cannot convert that constitutional mechanism into a different process not provided by the Constitution. 327.The Petitioners relied heavily on Article 232(1)(g) of the Constitution. Article 232 provides as follows:“232.Values and principles of public service1.The values and principles of public service include—b.high standards of professional ethics;c.efficient, effective and economic use of resources;d.responsive, prompt, effective, impartial and equitable provision of services;e.involvement of the people in the process of policy making;f.accountability for administrative acts;g.transparency and provision to the public of timely, accurate information;h.subject to paragraphs (h) and (i), fair competition and merit as the basis of appointments and promotions;i.representation of Kenya’s diverse communities; andj.affording adequate and equal opportunities for appointment, training and advancement, at all levels of the public service, of—i.men and women;ii.the members of all ethnic groups; andiii.persons with disabilities.(2)The values and principles of public service apply to public service in—(a)all State organs in both levels of government; and (b) all State corporations.” 328.Article 232 is undoubtedly important. It requires appointments in the public service to be informed by merit, transparency, accountability, diversity and equal opportunity. It cannot be ignored merely because the office in question is a high constitutional office. However, Article 232 must be read harmoniously with Article 156. The correct interpretive approach is not to treat Article 232 as displacing Article 156, but to treat it as informing the manner in which the constitutional actors exercise their respective powers under Article 156. Thus, the President must nominate a person who is qualified, competent and suitable, and the National Assembly must subject the nominee to meaningful approval scrutiny. But Article 232 cannot be used to rewrite Article 156 by inserting a mandatory prior competitive recruitment process which the Constitution itself does not prescribe. 329.The Supreme Court has repeatedly emphasized that the Constitution must be interpreted holistically and in a manner that gives effect to its text, structure, values and design. In In the Matter of the Speaker of the Senate & another [2013] KESC 7 (KLR), the Supreme Court stated that:“… this Court, in addressing actual disputes of urgency, must begin from the terms and intent of the Constitution. Our perception of the separation-of-powers concept must take into account the context, design and purpose of the Constitution; the values and principles enshrined in the Constitution; the vision and ideals reflected in the Constitution.” 330.Applying that approach, the Court must begin with the terms of Article 156. The design of that Article is that the Attorney-General is nominated by the President and approved by the National Assembly. That design is not accidental. The Attorney-General is the principal legal adviser to the Government, represents the national government in civil proceedings, promotes and protects the rule of law, and defends the public interest. The office therefore occupies a unique constitutional position at the intersection of executive legal advice, public interest protection and constitutional accountability. the Constitution chose a model in which the President identifies the nominee, while the National Assembly performs a checking and approval function. 331.The Petitioners’ argument also requires the Court to consider the relationship between general constitutional values and specific constitutional appointment provisions. Article 10 of the Constitution provides as follows:“10.National values and principles of governance(1)The national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them—a.applies or interprets this Constitution;b.enacts, applies or interprets any law; orc.makes or implements public policy decisions.(2)The national values and principles of governance include—d.patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people;e.human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized;f.good governance, integrity, transparency and accountability; andg.sustainable development.” 332.Article 10 applies to the nomination, vetting, approval and appointment of the Attorney-General. The President, the National Assembly and the nominee are all bound by the values of rule of law, good governance, integrity, transparency and accountability. However, Article 10 does not itself prescribe a specific appointment procedure. Rather, it supplies the normative standards against which the exercise of constitutional power is to be evaluated. The question is therefore whether the process under Article 156 was exercised in a manner that was unconstitutional, irrational, opaque, arbitrary or contrary to those values. 334.The evidence placed before the Court shows that the nominee for appointment as Attorney-General was publicly named and transmitted to the National Assembly for approval. The National Assembly thereafter processed the nomination through the Committee on Appointments, invited memoranda from the public, received objections and representations, conducted approval hearings, considered the nominee’s qualifications, and made a recommendation to the House. The National Assembly then approved the nomination before the President appointed the nominee to office. That sequence corresponds with the process contemplated by Article 156(2). 335.The parliamentary approval stage is an important constitutional safeguard. It ensures that the President’s nomination is not self-executing. The nominee cannot assume office merely because the President has selected her. The nominee must be subjected to scrutiny by the National Assembly, which acts on behalf of the people. That scrutiny includes consideration of academic and professional qualifications, integrity, suitability, competence, public objections, and information received from relevant State agencies. The approval process therefore serves as the constitutional mechanism through which transparency, accountability and public participation are introduced into the appointment process. 336.In Commission for the Implementation of the Constitution v Parliament of Kenya & another; Ethics and Anti-Corruption Commission & another (Interested Parties); Katiba Institute & another (Amicus Curiae) [2013] KEHC 6313 (KLR), the Court emphasized the supremacy of the Constitution and the obligation of all State organs to act within their constitutional mandates. The Court stated:“Article 1 provides that all sovereign power belongs to the people to be exercised only in accordance with the Constitution and further delegates the sovereign power to various state organs among them Parliament and the legislative assemblies in the county governments. Article 1(3) is clear that the state organs upon which such power is to be delegated ‘shall perform their functions in accordance with [the] Constitution.’ It then follows that no person or state organ is above the Constitution and their actions are amenable to the Constitution. This notion is further underlined by the Supremacy clause, that is, Article 2. Article 3 places an obligation on every person to respect, uphold and defend the Constitution while Article 10 enjoins all state organs, state officers, public officers and all persons to abide by the national values and principles.” 337.That passage confirms two points. First, the President and the National Assembly are bound by the Constitution when performing appointment functions. Secondly, the Court has jurisdiction to test their actions against the Constitution. However, it also confirms that each State organ must perform the functions delegated to it by the Constitution. In the present case, Article 156 delegates the nomination function to the President and the approval function to the National Assembly. The Court’s role is supervisory and interpretive; it is not to assume either function. 338.The Petitioners urged the Court to find that the appointment was invalid because there was no competitive recruitment process. That argument conflates two distinct concepts: eligibility for appointment and mode of appointment. Eligibility concerns whether the nominee meets the constitutional qualifications for the office. Mode of appointment concerns the procedure through which the nominee is identified, approved and appointed. Under Article 156, eligibility is determined by reference to Article 156(3), read with Article 166. The mode of appointment is determined by Article 156(2). A person may therefore be qualified for appointment and validly nominated under Article 156 even where the process was not preceded by open competitive recruitment, provided that the constitutional procedure was followed and the nominee met the constitutional qualifications. 339.It is also necessary to consider the qualifications for appointment as Attorney-General. Article 156(3) provides that the qualifications for appointment as Attorney-General are the same as for appointment to the office of Chief Justice. The qualifications for appointment to the office of Chief Justice are found in Article 166. Article 166(2) and (3) provide:“166.Appointment of Chief Justice, Deputy Chief Justice and other judges(2)Each judge of a superior court shall be appointed from among persons who—a.hold a law degree from a recognised university, or are advocates of the High Court of Kenya, or possess an equivalent qualification in a common-law jurisdiction;b.possess the experience required under clause (3) to (6) as applicable, irrespective of whether that experience was gained in Kenya or in another Commonwealth common-law jurisdiction; andc.have a high moral character, integrity and impartiality.(3)The Chief Justice and other judges of the Supreme Court shall be appointed from among persons who have—a.at least fifteen years experience as a superior court judge; orb.at least fifteen years experience as a distinguished academic, judicial officer, legal practitioner or such experience in other relevant legal field; orc.held the qualifications specified in paragraphs (a) and (b) for a period amounting, in the aggregate, to fifteen years.” 340.Therefore, for a person to qualify for appointment as Attorney-General, that person must possess the qualifications required for appointment as Chief Justice. These include legal training or equivalent qualification, the requisite legal experience of at least fifteen years, and high moral character, integrity and impartiality. The Petitioners did not place before the Court evidence demonstrating that the nominee lacked a law degree, was not an advocate, did not possess the requisite legal experience, or failed the constitutional test of integrity and moral character. Their complaint was directed principally at the absence of a competitive recruitment process. That complaint, without more, does not establish constitutional disqualification. 341.the Constitution must also be interpreted in a manner that avoids rendering any provision redundant. Article 259(1) provides:“259.Construing this Constitution(1)This Constitution shall be interpreted in a manner that—a.promotes its purposes, values and principles;b.advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;c.permits the development of the law; andd.contributes to good governance.” 342.A harmonious interpretation of Articles 10, 156, 166 and 232 leads to the following conclusions. First, Article 156(2) prescribes the mode of appointment. Secondly, Article 156(3), read with Article 166(2) and (3), prescribes the qualifications. Thirdly, Article 10 supplies the national values that bind the President and the National Assembly in the exercise of their powers. Fourthly, Article 232 informs the broader constitutional expectations of merit, transparency, accountability, diversity and equal opportunity. However, neither Article 10 nor Article 232 displaces the specific mechanism created by Article 156. 343.The Petitioners drew an analogy between the appointment of the Attorney-General and the appointment of the Director of Public Prosecutions. Article 157 establishes the office of the Director of Public Prosecutions. The Petitioners argued that since the Director of Public Prosecutions is recruited through a competitive process, the Attorney-General should similarly be appointed through fair competition and merit. The difficulty with that argument is that the Constitution and legislation have created different appointment frameworks for different offices. The Court cannot simply transplant the statutory recruitment process applicable to one constitutional office into another office where the Constitution has adopted a different mechanism. 344.The office of the Director of Public Prosecutions is constitutionally independent in the exercise of prosecutorial powers. The Attorney-General, by contrast, is a member of the Cabinet under Article 152(1) and is the principal legal adviser to the Government under Article 156(4). the Constitution may therefore validly adopt different appointment models for the two offices. The Court’s duty is to interpret and apply the Constitution, not to design what it considers to be the best or most desirable appointment system. 345.In Institute for Social Accountability & another v National Assembly & 3 others & 5 others [2022] KESC 39 (KLR), the Supreme Court cautioned that long-standing practice does not automatically acquire constitutional legitimacy merely because it has existed for a long time. That principle is sound. However, the present issue is not determined by historical practice alone. It is determined by the express text of Article 156(2). The Court’s conclusion that no competitive recruitment process is required is not founded on the fact that past Attorneys-General were nominated in the same manner. It is founded on the Constitution’s own language. 346.Equally, the Court is alive to the principle in the Mumo Matemu case (supra) that public appointments are not beyond judicial scrutiny. The Court of Appeal in that case emphasized that the exercise of appointment powers must conform to the Constitution and that courts may intervene where there is illegality, irrationality, procedural impropriety or violation of constitutional standards. However, the Court also cautioned that judicial review should not descend into a merits-based reassessment of the appointing authority’s choice where the Constitution has assigned the function elsewhere. That balance is especially important in appointments involving presidential nomination and parliamentary approval. 347.In the present case, the Petitioners did not demonstrate that the President nominated a person who was constitutionally ineligible. They did not demonstrate that the National Assembly failed to invite public participation, failed to conduct approval hearings, failed to consider relevant material, or approved the nominee in defiance of an express constitutional prohibition. Nor did they demonstrate that the appointment was irrational, procedurally unfair or tainted by bad faith. The Court was instead invited to invalidate the appointment because the nominee was not selected through competitive recruitment. For the reasons already given, that is not a requirement imposed by Article 156. 348.The Court must also consider the effect of Article 2 of the Constitution. Article 2 provides:“2.(1)This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government.(2)No person may claim or exercise State authority except as authorised under this Constitution.(3)The validity or legality of this Constitution is not subject to challenge by or before any court or other State organ.(4)Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.” 349.Article 2 reinforces the principle that State authority must be exercised only as authorised by the Constitution. The President was authorised by Article 156(2) to nominate the Attorney-General. The National Assembly was authorised to approve or reject the nominee. The President was then authorised to appoint the nominee upon approval. Unless the Petitioners show that one of those constitutional steps was omitted, abused or undertaken in violation of a mandatory constitutional standard, the Court has no basis for invalidating the appointment. 350.The Court must further bear in mind Article 73 of the Constitution on leadership and integrity. Article 73(1) provides that authority assigned to a State officer is a public trust to be exercised in a manner that is consistent with the purposes and objects of the Constitution, demonstrates respect for the people, brings honour to the nation and dignity to the office, and promotes public confidence in the integrity of the office. Article 73(2) provides that the guiding principles of leadership and integrity include selection on the basis of personal integrity, competence and suitability, objectivity and impartiality in decision-making, selfless service, accountability and discipline. These values are relevant to the appointment of the Attorney-General. However, no evidence was presented showing that the nominee failed the constitutional threshold under Chapter Six or that any competent body had made findings disqualifying her from public office. 351.In this regard, the Court reiterates that allegations of lack of integrity or unsuitability must be supported by evidence. A constitutional petition cannot succeed on speculation, suspicion or generalized dissatisfaction with the appointing authority’s choice. Where the Constitution prescribes objective qualifications, a petitioner who alleges non-compliance must show how the appointee failed to meet those qualifications. Where the complaint concerns process, the petitioner must identify the procedural requirement breached and demonstrate the manner of breach. In the absence of such evidence, the Court cannot invalidate a constitutional appointment. 352.It follows that the proper interpretation of Article 156 is that the President may directly nominate a person for appointment as Attorney-General, provided that the nominee meets the qualifications required by Article 156(3), read with Article 166(2) and (3), and provided further that the nominee is subjected to approval by the National Assembly. The National Assembly, in turn, must conduct the approval process in a manner that respects Articles 10, 73 and 232, including transparency, accountability, public participation, integrity and merit. Once those constitutional safeguards are observed, the Court cannot impose an additional threshold of prior competitive recruitment. 353.The Court is therefore unable to accept the Petitioners’ contention that Article 232(1)(g) requires the President to advertise the position of Attorney-General or conduct competitive interviews before making a nomination under Article 156(2). Article 232 remains relevant, but it does not amend Article 156. It requires that the person nominated be suitable, qualified and meritorious, and that the approval process be transparent and accountable. It does not transform a presidential nomination power into an open recruitment process. 354.From the foregoing, the evidence before the Court demonstrates that the nominee was nominated by the President, submitted to the National Assembly, subjected to parliamentary approval proceedings, and appointed after approval. The Petitioners did not prove that the nominee lacked the constitutional qualifications under Articles 156(3) and 166(2) and (3). They did not prove that the National Assembly’s approval process was constitutionally defective. They did not prove that the appointment violated Articles 10, 73 or 232. Their principal objection was to the absence of competitive recruitment, but that objection is not supported by the text of Article 156. 355.Consequently, the Court finds that the nomination and appointment of the Attorney-General complied with the Constitution. The President was constitutionally entitled to nominate a qualified person for appointment as Attorney-General. The National Assembly was constitutionally entitled to consider and approve the nomination. Upon such approval, the President was constitutionally entitled to appoint the nominee. The petitioners have not established any illegality, irrationality, procedural impropriety or constitutional violation warranting the invalidation of the appointment. 356.The issue is therefore answered in the affirmative. The nomination, approval and appointment of the Attorney-General complied with Articles 10, 156, 166 and 232 of the Constitution. f) Whether the Constitution recognizes an official ‘opposition’ and whether Kenya's constitutional architecture requires a distinction between the government and ‘opposition’ 357.The Petitioners argued that the nomination and appointment of certain individuals who were previously associated with political parties and coalitions opposed to the Kenya Kwanza administration undermined constitutional democracy and offended the structure of the Constitution. According to the Petitioners, the incorporation of prominent ‘opposition’ figures into the Cabinet effectively weakened political accountability, diluted democratic competition, and deprived citizens of a meaningful alternative political voice. It was contended that the Constitution presupposes the existence of a distinct and independent political ‘opposition’ capable of scrutinizing, challenging and holding the Executive accountable. The Petitioners therefore urged the Court to find that the appointment of ‘opposition’ leaders into the Cabinet violated the spirit, structure and underlying values of the Constitution. 358.The Respondents rejected that proposition. They argued that the Constitution of Kenya, 2010 does not establish the office of Leader of the ‘Opposition’, does not recognize an official ‘opposition’ as a constitutional institution, and does not prohibit the President from appointing qualified persons merely because they belong to or previously belonged to a political party not aligned with the governing coalition. According to the Respondents, Kenya adopted a presidential system of government under the Constitution of Kenya, 2010 and not a Westminster parliamentary system in which a formally recognized ‘opposition’ forms part of the constitutional architecture. The Respondents, therefore, maintained that the legality of an appointment depends upon compliance with the Constitution and not upon the political affiliation of the appointee. 359.This issue requires the Court to examine the text, structure and design of the Constitution. The starting point is Article 1 of the Constitution, which provides:“All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.” 360.Article 1(3) further provides:“Sovereign power under this Constitution is delegated to the following State organs, which shall perform their functions in accordance with this Constitution—a.Parliament and the legislative assemblies in the county governments;b.the national executive and the executive structures in the county governments; andc.the Judiciary and independent tribunals.” 360.Article 1 is significant because it identifies the institutions through which sovereign power is exercised. Notably absent from that list is any constitutional institution known as the “Official Opposition”, “Leader of the Opposition”, or “Opposition Party”. the Constitution expressly identifies Parliament, the Executive and the Judiciary as the principal repositories of delegated sovereign authority. Where the Constitution intended to create an office or institution, it did so expressly and in clear terms. The absence of any reference to an official ‘opposition’ is therefore constitutionally significant. 361.Equally important is the fact that the Constitution does not define the terms “opposition party”, “opposition coalition” or “opposition leader”. Article 260, which contains the interpretive definitions applicable throughout the Constitution, contains no such definitions. The Political Parties Act, likewise, does not create a legal category known as an ‘opposition’ party nor does it establish the office of Leader of the ‘Opposition’. 362.The Court has carefully examined the constitutional and statutory framework governing political parties. The Political Parties Act recognizes political parties, coalition political parties, coalition agreements and parliamentary parties. However, it does not classify political parties as “government parties” and “opposition parties” for constitutional purposes. Whether a political party supports or opposes the Government at a given time is a matter of political reality rather than constitutional status. 363.This omission is neither accidental nor insignificant. Prior to the promulgation of the Constitution of Kenya, 2010, Kenya operated under a constitutional structure heavily influenced by the Westminster parliamentary tradition. Under such systems, the concepts of “Government” and “Official Opposition” frequently enjoy constitutional, statutory or parliamentary recognition. The Leader of the ‘Opposition’ may even hold an officially recognized office with defined constitutional functions. 364.the Constitution of Kenya, 2010 deliberately adopted a different model. It established a presidential system of government founded upon separation of powers, checks and balances, constitutional supremacy and institutional accountability. Executive authority is not derived from Parliament but directly from the Constitution and ultimately from the people. Article 129 provides:“Executive authority derives from the people of Kenya and shall be exercised in accordance with this Constitution.” 365.Article 129(2) further provides:“Executive authority shall be exercised in a manner compatible with the principle of service to the people of Kenya, and for their well-being and benefit.” 366.Article 131 vests executive authority in the President and sets out the functions of the office. Article 132 confers upon the President the power to nominate and, with the approval of the National Assembly, appoint Cabinet Secretaries, the Attorney-General and other State officers. Nothing in those provisions limits appointments on the basis of political affiliation. Indeed, Article 152(2) provides:“The President shall nominate and, with the approval of the National Assembly, appoint Cabinet Secretaries.” 367.the Constitution prescribes qualifications, procedures and institutional safeguards governing appointments. Political affiliation is not among the constitutional disqualifications. The Court is therefore unable to identify any constitutional provision prohibiting the appointment of a person merely because he or she belongs to a political party that is not part of the governing coalition. Had the framers intended to impose such a limitation, they would undoubtedly have done so expressly. 368.The Petitioners nevertheless urged the Court to infer the existence of a constitutionally protected ‘opposition’ from the broader values of democracy, political participation and accountability. There is no doubt that the Constitution protects multiparty democracy. Article 4(2) declares Kenya to be:“a multi-party democratic State founded on the national values and principles of governance referred to in Article 10.” 369.Similarly, Article 38 guarantees political rights, including the right to form, join and participate in the activities of a political party. The Court readily accepts that multiparty democracy necessarily contemplates political competition. It also accepts that the existence of political parties that support and oppose the Government is a natural and desirable feature of democratic governance. However, it does not follow that every political reality becomes a constitutional institution. 370.There is an important distinction between a political phenomenon and a constitutional office. the Constitution undoubtedly contemplates the existence of political parties holding divergent political views. It equally contemplates vigorous political competition and debate. What it does not do is constitutionalize the office of “Leader of the Opposition” or require the perpetual existence of a formally organized ‘opposition’ bloc separate from government. The Court is guided in this regard by the principle articulated by the Supreme Court in In the Matter of the Speaker of the Senate & Another, Advisory Opinion Reference No. 2 of 2013 [2013] KESC 7 (KLR) that constitutional interpretation must begin with the text, structure, design and purpose of the Constitution. The Supreme Court observed:“Our perception of the separation-of-powers concept must take into account the context, design and purpose of the Constitution; the values and principles enshrined in the Constitution; the vision and ideals reflected in the Constitution.” 371.Applying that approach, the Court finds that the constitutional architecture established by the Constitution of Kenya, 2010, is not one built around a formal distinction between a governing party and an official ‘opposition’. Rather, it is built around institutional checks and balances. The principal constitutional restraints upon executive power are Parliament, the Judiciary, independent commissions, constitutional offices and the Bill of Rights. Furthermore, Article 94 vests legislative authority in Parliament. Article 95 specifically assigns to the National Assembly the role of scrutinizing and overseeing State organs. Article 96 confers upon the Senate oversight functions in relation to counties. Article 249 establishes independent commissions and offices to protect constitutionalism and accountability. Articles 159 and 165 vest judicial authority in the courts and empower them to review the constitutionality of governmental action. the Constitution, therefore, secures accountability through institutions rather than through a constitutionally entrenched ‘opposition’. The constitutional design assumes that Parliament, the Judiciary, independent commissions and the citizenry themselves will perform oversight functions irrespective of shifting political alliances. 372.The Court also notes that political alignments are inherently fluid. Political parties may enter into coalitions, cooperation agreements or governance arrangements. Members may resign from one party and join another. Coalitions may dissolve, and new coalitions may emerge. To constitutionalize the concept of ‘opposition’ would therefore require courts to continually determine who qualifies as an ‘opposition’ leader and which parties qualify as ‘opposition’ parties. Such a task finds no support in the Constitution and would draw the Judiciary into essentially political disputes. 373.The Petitioners further argued that the appointment of ‘opposition’ leaders to the Cabinet undermines democratic accountability because persons who ought to scrutinize government become part of government. While that argument may have political force, it does not establish constitutional invalidity. the Constitution does not require any individual political actor to remain in ‘opposition’. Nor does it prohibit political cooperation between parties that previously contested elections against one another. Political realignments, coalition building and consensus governance are political questions to be resolved through democratic processes and not constitutional prohibitions enforceable by courts. 374.Moreover, the Constitution itself encourages inclusiveness and national unity. Article 10 identifies national unity, inclusiveness and participation among the national values and principles of governance. Article 130(2) requires the national executive to reflect the regional and ethnic diversity of the people of Kenya. the Constitution, therefore, contemplates an executive that draws upon the broad diversity of the nation rather than one confined to a narrow political constituency. 375.The Court is therefore unable to accept the proposition that the appointment of a person previously associated with an ‘opposition’ political party is, without more, unconstitutional. Such an interpretation would create qualifications and disqualifications for public office that are not found in the Constitution. Ultimately, the legality of a Cabinet appointment must be assessed against the standards expressly prescribed by the Constitution. The relevant inquiry is whether the nominee meets the constitutional qualifications for office; whether the nomination process complied with constitutional requirements; whether the approval process complied with the Constitution; and whether the appointment satisfies the constitutional principles of integrity, equality, inclusiveness, diversity and public participation. Political affiliation, standing alone, is not a constitutional criterion. 376.Accordingly, the Court finds that the Constitution of Kenya, 2010 does not recognize an official ‘opposition’, an ‘opposition’ party, or the office of Leader of the ‘Opposition’ as constitutional institutions. The concepts may exist in political discourse and democratic practice, but they do not enjoy constitutional or statutory status. The Court further finds that Kenya's constitutional architecture does not require a formal or permanent distinction between government and ‘opposition’ as a condition for the validity of executive appointments. Rather, the Constitution secures accountability through the separation of powers, checks and balances, parliamentary oversight, judicial review, independent commissions and the sovereign will of the people. 377.Consequently, the mere fact that certain nominees were associated with political parties or coalitions previously opposed to the Government does not render their nomination or appointment unconstitutional. Any challenge to such appointments must be determined by reference to the constitutional qualifications, procedures and standards governing public appointments and not by reference to political labels such as “government”, “opposition”, or “opposition leader”. g) Whether the Petitioners are entitled to the reliefs sought 378.Having considered the pleadings, affidavits, documentary evidence, written and oral submissions, the applicable constitutional and statutory framework, and the jurisprudence cited by the parties, the Court now turns to the question of whether the Petitioners are entitled to the reliefs sought in the consolidated petitions. 379.The Petitioners sought a wide range of declaratory, prohibitory, mandatory and structural reliefs. Although framed differently across the four petitions, the reliefs may broadly be grouped into seven categories. First, declarations that the nomination, vetting, approval and appointment of Cabinet Secretaries and the Attorney-General were unconstitutional and invalid. Secondly, declarations that the composition of the Cabinet violated the two-thirds gender principle under Article 27(8) of the Constitution. Thirdly, declarations that the reappointment of former Cabinet Secretaries following the dissolution of Cabinet on 11th July 2024 was unconstitutional. Fourthly, declarations that the appointments of persons associated with ‘opposition’ political parties undermined Kenya's constitutional architecture and multiparty democracy. Fifthly, declarations that the nomination and appointment of the Attorney-General violated the Constitution. Sixthly, declarations that the public participation process undertaken by the National Assembly was constitutionally deficient. Finally, consequential orders nullifying the appointments, quashing Gazette Notices, restraining payment of salaries, invalidating Cabinet decisions and compelling the President to reconstitute the Cabinet. 380.The Court has already made detailed findings on each of those issues. It found that the High Court possessed jurisdiction under Articles 22, 23, 165(3)(d) and 258 of the Constitution to interrogate the constitutionality of the impugned processes notwithstanding the doctrines of separation of powers and political question. The Court equally found that the proceedings were not barred by presidential immunity under Article 143 because the challenge was directed at the constitutionality of presidential actions and not personal liability. 381.On the challenge to the nomination and reappointment of Cabinet Secretaries following the dissolution of Cabinet on 11th July 2024, the Court found that Article 152(5)(b) of the Constitution merely empowers the President to dismiss a Cabinet Secretary and does not create a constitutional disqualification from future public office. The Court further found that none of the affected nominees had been removed from office pursuant to Article 75(3) of the Constitution and that their subsequent nomination, approval and appointment did not violate the Constitution. 382.On the argument that the Constitution recognizes an official ‘opposition’ whose members are constitutionally barred from appointment to Cabinet, the Court found no constitutional foundation for that proposition. the Constitution of Kenya, 2010 does not create the office of Leader of the ‘Opposition’ nor does it prohibit the appointment of members of political parties not forming part of the governing coalition. The Court therefore rejected the contention that the appointment of persons affiliated with ODM or other political formations rendered their appointments unconstitutional. 383.With respect to the Attorney-General, the Court found that Article 156(2) expressly vests the nomination power in the President and the approval power in the National Assembly. the Constitution does not require a competitive recruitment process for appointment to that office. The Court further found that the 22nd Interested Party met the constitutional qualifications prescribed under Articles 156(3) and 166(3) and that the nomination, vetting, approval and appointment process complied with the Constitution. 384.The Court also rejected the Petitioners' contention that the Attorney-General's appointment violated Article 232(1)(g) of the Constitution. The Court found that Article 156 establishes a unique constitutional appointment mechanism and that the constitutional text itself does not contemplate a prior competitive recruitment process before presidential nomination. 385.On the issue of public participation, the Court found that the National Assembly undertook extensive public participation through newspaper advertisements, parliamentary notices, publication of nominees' names, receipt of memoranda, public hearings and live broadcasting of the proceedings. The Court found that although a substantial number of memoranda were rejected for non-compliance with procedural requirements, the process as a whole substantially complied with Articles 10 and 118 of the Constitution and the Public Appointments (Parliamentary Approval) Act. 386.Similarly, the Court found no evidence that the National Assembly abdicated its constitutional responsibility during the vetting process. The Committee on Appointments conducted hearings, questioned nominees, received public representations and tabled reports before the House. The Court therefore declined the invitation to invalidate the appointments on the basis that Parliament merely rubber-stamped the nominations. 387.The Court further found that allegations concerning integrity and Chapter Six of the Constitution were not proved to the required standard. No competent body had found any of the impugned nominees to have violated Articles 75, 76, 77 or 78 of the Constitution. Neither had the Petitioners exhausted the statutory mechanisms established under the Ethics and Anti-Corruption Commission Act and the Leadership and Integrity Act in respect of the integrity complaints raised. 388.However, the Court reached a different conclusion on the issue of gender representation.i.The Court found that the Cabinet is an appointive body within the meaning of Article 27(8) of the Constitution. The Court further found that for purposes of calculating compliance with Article 27(8), the Cabinet consists of the President, the Deputy President, the Attorney-General and all Cabinet Secretaries as expressly provided under Article 152(1) of the Constitution.ii.Applying the constitutional formula to the evidence before it, the Court found that the Cabinet as presently constituted comprises twenty-five members, of whom seven are women and eighteen are men. Consequently, more than two-thirds of the members of the Cabinet are of the same gender.iii.The Court rejected the Respondents' contention that Article 27(8) is merely aspirational in relation to appointive offices. Guided by the Supreme Court Advisory Opinion in In the Matter of the Principle of Gender Representation in the National Assembly and the Senate, Advisory Opinion No. 2 of 2012 [2012] eKLR, together with the decisions in Federation of Women Lawyers Kenya (FIDA-K) & 5 Others v Attorney General & Another [2011] eKLR and Marilyn Muthoni Kamuru & 2 Others v Attorney General & Another [2016] eKLR, the Court found that compliance with the gender principle in appointive bodies is immediate, mandatory and enforceable.iv.The Court therefore concluded that the current composition of the Cabinet does not comply with Article 27(8) of the Constitution. 389.The question that follows is what relief is appropriate. The Petitioners urged the Court to invalidate the entire Cabinet, nullify all decisions made by Cabinet Secretaries, quash the Gazette Notices effecting appointments, prohibit payment of salaries and declare all actions undertaken by Cabinet members null and void. The Court declines to grant those remedies. Constitutional remedies must not only vindicate constitutional rights and values but must also be proportionate, effective and consistent with the broader public interest. The Court must be guided by Article 259 of the Constitution and the principle that constitutional adjudication should preserve constitutional order rather than create institutional paralysis. 390.The Cabinet constitutes the apex policy-making organ of the National Executive. It is responsible for the formulation and implementation of national policy, administration of ministries, coordination of government functions, national security, foreign affairs, economic management and numerous constitutional responsibilities affecting millions of Kenyans. 391.Invalidating the entire Cabinet would create an immediate constitutional and governance vacuum with far-reaching consequences extending beyond the constitutional violation established before the Court. Such a remedy would disproportionately affect innocent members of the public who are not responsible for the impugned appointments. 392.The Court is persuaded that the appropriate remedy is one that secures compliance with Article 27(8) while preserving continuity in governance and avoiding unnecessary disruption to the functioning of the State. This Court possesses broad remedial powers under Articles 23(3), 165(3)(d) and 258 of the Constitution. Those powers include the authority to issue declaratory relief, structural interdicts and supervisory orders designed to secure future constitutional compliance. In the circumstances of this case, a declaration of constitutional violation coupled with a mandatory structural order directing compliance within a period of 120 days constitute the most proportionate and effective remedy. Final Orders 393.Accordingly, the Court makes the following orders:a.A declaration is hereby made that the nomination, vetting, approval and appointment of the Cabinet Secretaries challenged in these proceedings complied with Articles 10, 73, 129, 131, 152 and 232 of the Constitution and the Public Appointments (Parliamentary Approval) Act.b.A declaration is hereby made that the nomination, approval and appointment of the 22nd Interested Party as Attorney-General complied with Articles 10, 156 and 232 of the Constitution.c.A declaration is hereby made that the re-nomination and appointment of former Cabinet Secretaries following the dissolution of Cabinet on 11th July 2024 did not violate Articles 75, 129, 131, 152 or any other provision of the Constitution.d.A declaration is hereby made that the Constitution of Kenya, 2010 does not establish an official ‘opposition’ and does not prohibit the appointment of persons affiliated with political parties outside the governing coalition to Cabinet or other appointive State offices.e.A declaration is hereby made that the public participation undertaken by the National Assembly in relation to the nomination and approval of Cabinet Secretaries and the Attorney-General substantially complied with Articles 10 and 118 of the Constitution and the Public Appointments (Parliamentary Approval) Act.f.A declaration is hereby made that the current composition of the Cabinet does not comply with Article 27(8) of the Constitution because more than two-thirds of its members are of the same gender.g.The Appointing Authority is hereby directed to make appointments of Cabinet Secretaries in conformity to Article 27(8) of the Constitution within 120 days from the date of this Judgment.h.A declaration is hereby made that Article 27(8) of the Constitution is immediate, mandatory and fully enforceable in relation to appointive bodies, including the Cabinet established under Article 152 of the Constitution.i.All other prayers not specifically granted are hereby dismissed.j.Given the public interest nature of these consolidated proceedings, each party shall bear its own costs. DATED, SIGNED AND DELIVERED IN NAIROBI THIS 30TH DAY OF JUNE 2026.……………………………. ….………………………HON. JUSTICE E. K. OGOLAHON. JUSTICE STEPHEN GITHINJIPRESIDING JUDGE JUDGEDISSENTING JUDGMENT OF HON. JUSTCE JAIRUS NGAAH 1.The facts in this case are as ably set out in the majority judgment which I have had the advantage of reading. It would be unnecessary to rehash them in this judgment and, in any event, there isn’t much of a dispute about them. 2.I must start by saying that I agree with the majority judgment in so as it holds that the cabinet as currently constituted falls short of the two-thirds gender principle and, therefore, contrary to article 27 (8) of the Constitution. I also agree with my noble and learned friends in the majority judgment that the appointment of Honourable Dorcas Agik Oduor as the Attorney General of the Republic of Kenya was consistent with the Constitution; I find nothing wrong with it. 3.If I may add something on the question of the two-thirds gender principle, unlike in elective positions where the attainment of this principle has been frustrated by lack of the relevant legislation contemplated in Article 27 (8) of the Constitution, appointive positions need not wait a legislative act. It is within the power of the appointing authority to meet the criteria set by the Constitution for achievement of the two-thirds gender principle in appointive positions which, in the case at hand, include appointments to the cabinet. 4.Thus, when the President deliberately appoints a cabinet whose composition falls short of the gender threshold set in express, certain and unambiguous terms in Article 27(8) of the Constitution, no plausible explanation can be given for his conduct except to say that, perhaps, the President is unnecessarily subjecting the Constitution to a stress test. When this happens, the duty of this Honourable Court is rise to the occasion to protect the Constitution from snapping; one way of discharging this constitutional task is by reminding the President that he has erred and, in particular, remind him of article 131(2) (a) of the Constitution which expressly enjoins the President, in mandatory terms, to “respect, uphold and safeguard” the Constitution. Anything less would be dereliction of duty on the part of the court. 5.Speaking of the two-thirds gender principle in both elective and appointive positions, the Court of Appeal in the Speaker of the National Assembly -vs- Centre for Rights Education & Awareness & 7 others (2019) eKLR held that the constitutional requirement that not more than two-thirds of the members of elective and appointive bodies shall be of the same gender is one of the innovations of the Constitution of Kenya, 2010, intended to redress gender inequality in public offices and to give women, who traditionally have been a minority, a minimum presence in those offices. In holding as it did, the Court of Appeal followed the Supreme Court in the Matter of the Principle of Gender Representation in the National Assembly and the Senate (Advisory Opinion No. 2 of 2012) in which the Supreme Court traced the historical background of Article 27 and 81 of the Constitution on gender representation in public offices, including Parliament. The Supreme Court opined as follows:“This Court is fully cognisant of the distinct social imperfection which led to the adoption of Articles 27(8) and 81(b) of the Constitution: that in elective or other public bodies, the participation of women has, for decades, been held at bare nominal levels, on account of discriminatory practices, or gender-indifferent laws, policies and regulations. This presents itself as a manifestation of historically unequal power relations between men and women in Kenyan society. Learned counsel Ms. Thongori aptly referred to this phenomenon as “the socialization of patriarchy”; and its resultant diminution of women’s participation in public affairs has had a major negative impact on the social terrain as a whole. Thus, the Constitution sets out to redress such aberrations, not just through affirmative action provisions such as those in Articles 27 and 81, but also by way of a detailed and robust Bill of Rights, as well as a set of “national values and principles of governance” (Article 10).” 6.It is enough that, more than fifteen years after the promulgation of the Constitution, the state is still grappling with the question of the enactment of the appropriate legislation to implement the principle that not more than two-thirds of the members of elective bodies shall be of the same gender. Implementation of this principle in appointive positions should not be much of an issue since it is a less complex affair which, in any event, does not require as much effort as would be necessary in elective positions; the implementation of this principle in elective positions is practically impossible without a legislative act that may, perhaps, warrant the amendment of the Constitution. 7.That said, I have divergent opinion in two areas; first, the reappointment to the cabinet of the same persons who, just a few weeks earlier, had been dismissed from cabinet positions; and, second, the nomination for appointment and the subsequent appointment of members of political parties not in Government to the cabinet. In the instant case, am referring to sitting Members of Parliament of the Orange Democratic Movement political party and the national officials of this party who, while holding their respective positions in their party and parliament, were nominated and appointed as cabinet secretaries. Reappointments 8.In his statement to the public on 11th July 2024, His excellency the President dismissed his entire cabinet and, in so doing, the President enumerated programmes that his government had hitherto achieved but, in the same breath, the President acknowledged that his administration could do more. To quote the President:“12.Even with the progress we have made, I am acutely aware that the people of Kenya have high expectations of me and believe that this administration can undertake the most extensive transformation in our nation’s history.13.Recent events that necessitated the withdrawal of the Finance Bill, which will require a review and reorganisation of our budget and fiscal management, have brought us to an inflexion point.14.Upon reflection, listening keenly to what the people of Kenya have said and after a holistic appraisal of the performance of my Cabinet and its achievements and challenges, I have, in line with the powers given to me by Article 152(1) and 152(5)(b) of the Constitution and Section 12 of the Office of the Attorney-General Act, decided to dismiss with immediate effect all the Cabinet Secretaries and the Attorney-General from the Cabinet of the Republic of Kenya except the Prime Cabinet Secretary and Cabinet Secretary for Foreign and Diaspora Affairs.” 9.Article 152 of the Constitution parts of which the President made reference to in his statement, is critical to the issue at hand because it speaks to, among other things, the composition of the cabinet; and, the appointment, reassignment and dismissal of cabinet secretaries; it states as follows:152.Cabinet(1)The Cabinet consists of—(a)the President;(b)the Deputy President;(c)the Attorney-General; and(d)not fewer than fourteen and not more than twenty-two Cabinet Secretaries.(2)The President shall nominate and, with the approval of the National Assembly, appoint Cabinet Secretaries.(3)A Cabinet Secretary shall not be a Member of Parliament.(4)Each person appointed as a Cabinet Secretary—(a)assumes office by swearing or affirming faithfulness to the people and the Republic of Kenya and obedience to this Constitution, before the President and in accordance with the Third Schedule; and(b)may resign by delivering a written statement of resignation to the President.(5)The President—(a)may re-assign a Cabinet Secretary;(b)may dismiss a Cabinet Secretary; and(c)shall dismiss a Cabinet Secretary if required to do so by a resolution adopted under clauses (6) to (10).(6)A member of the National Assembly, supported by at least one-quarter of all the members of the Assembly, may propose a motion requiring the President to dismiss a Cabinet Secretary—(a)on the ground of a gross violation of a provision of this Constitution or of any other law;(b)where there are serious reasons for believing that the Cabinet Secretary has committed a crime under national or international law; or(c)for gross misconduct.(7)If a motion under clause (6) is supported by at least one-third of the members of the National Assembly—(a)the Assembly shall appoint a select committee comprising eleven of its members to investigate the matter; and(b)the select committee shall, within ten days, report to the Assembly whether it finds the allegations against the Cabinet Secretary to be substantiated.(8)The Cabinet Secretary has the right to appear and be represented before the select committee during its investigations.(9)If the select committee reports that it finds the allegations—(a)unsubstantiated, no further proceedings shall be taken; or(b)substantiated, the National Asembly shall—(i)afford the Cabinet Secretary an opportunity to be heard; and(ii)vote whether to approve the resolution requiring the Cabinet Secretary to be dismissed.(10)If a resolution under clause (9)(b)(ii) requiring the President to dismiss a Cabinet Secretary is supported by a majority of the members of the National Assembly—(a)the Speaker shall promptly deliver the resolution to the President; and(b)the President shall dismiss the Cabinet Secretary. 10.The President may in exercise of his discretion dismiss a cabinet secretary under Article 152(5) (b) but under Article 152(c) he has no option but to dismiss a cabinet secretary if a resolution to that effect is supported by the majority of the Members of Assembly subject, of course, to the impeachment process set out in article 152 (6) to (10). Our concern in this petition is whether, after exercising his discretion under Article 152(5)(b) and dismissing certain persons from their cabinet positions, the President could re-appoint the same persons as Cabinet Secretaries, albeit in ministries different from the ones they held before they were dismissed. 11.First, it is appreciated that under Article 259 (10) a person who has vacated an office established under the Constitution is eligible for reappointment to that office, but only if he is qualified to hold that particular office. This provision of the Constitution reads as follows:259 (10)Except to the extent that this Constitution provides otherwise, if a person has vacated an office established under this Constitution, the person may, if qualified, again be appointed, elected or otherwise selected to hold the office in accordance with this Constitution. (Emphasis added). 12.It has been noted that Article 152 (5)(b), clothes the President with the discretion to dismiss any member of his cabinet. But it does not necessarily follow that the President can dismiss any cabinet secretary at whim. The discretion to dismiss, like any other discretion in law, must be exercised judiciously, particularly when, under Article 152(2) of the Constitution, the appointment of a cabinet secretary is subject to the approval of the National Assembly. It is only after the vetting process and approval by the National Assembly that the President appoints the person he has nominated to the cabinet. 13.Without being mistaken for inhibiting the President’s exercise of discretion to dismiss a cabinet secretary, the expectation is that once a person nominated for appointment has undergone the rather arduous but the mandatory constitutional process of vetting and approval and ultimately appointed to the Cabinet, he will serve, not at the mercy of the President; and, without any fear of arbitrary dismissal. This is subject, of course, to impeachment on the grounds that he has grossly violated of a provision of the Constitution or of any other law; or where there are serious reasons for believing that the Cabinet Secretary has committed a crime under national or international law; or where he has grossly misconducted himself. (see article 152 (10). 14.The provisions of article 152(10) of the Constitution underline the understanding that once appointed a cabinet secretary neither serves parochial party interests nor those of the President; he serves the larger national public interest and thus, outside the exercise of the discretion of the President under article 152 (5) (b) of the Constitution, a cabinet secretary can only be removed through the impeachment process under article 152(10) of the Constitution. 15.My reading of the reason behind the Cabinet’s dismissal on 11th July 2024 is that it was informed by what the President described as “recent events leading to the withdrawal of the Finance Bill” of that particular year. It is upon the President reflecting on these events and “after a holistic appraisal of the performance of my cabinet and its achievements and challenges” that the President reached the conclusion that his entire Cabinet ought to be dismissed. For emphasis’ sake I reproduce the relevant part of the President’s statement; he noted as follows:“13.Recent events that necessitated the withdrawal of the Finance Bill, which will require a review and reorganisation of our budget and fiscal management, have brought us to an inflexion point.14.Upon reflection, listening keenly to what the people of Kenya have said and after a holistic appraisal of the performance of my Cabinet and its achievements and challenges, I have, in line with the powers given to me by Article 152(1) and 152(5)(b) of the Constitution and Section 12 of the Office of the Attorney-General Act, decided to dismiss with immediate effect all the Cabinet Secretaries and the Attorney-General from the Cabinet of the Republic of Kenya except the Prime Cabinet Secretary and Cabinet Secretary for Foreign and Diaspora Affairs.” 16.My understanding of the President’s statement is that despite the achievements made and challenges with which the Cabinet was faced, its performance was, nonetheless, below par. The “recent events that necessitated the withdrawal of the Finance Bill” were attributed to the Cabinet’s below average performance and, for this reason, the cabinet had to go. Thus, the President did not exercise his discretion whimsically; he had a reason or reasons to dismiss his cabinet. 17.So, the question that arises and for which I have not found a rational or satisfactory answer is why, in reconstituting his fresh cabinet, the President would nominate the persons he had dismissed for being ineffective to the same positions that they had been dismissed from. If, in the President’s view, his cabinet was, in some way, incompetent, there was no basis for nominating the same cabinet members for appointment to the cabinet. While the President has the discretion to nominate whomsoever to the cabinet, he does not enjoy such a discretion to nominate a cabinet secretary whom he has just dismissed from that position for incompetence. This is what I understand the Constitution to say in Article 259(10) that “if a person has vacated an office established under this Constitution, the person may, if qualified, again be appointed, elected or otherwise selected to hold the office.” 18.When dismissing his cabinet, the President found the performance of his cabinet wanting in some respect and if the cabinet was deficient in its performance to the extent that it had to be dismissed, the same cabinet members cannot be said to be to have been qualified for reappointment under Article 259(10) of the Constitution. My understanding of this provision of the Constitution is that the cabinet secretaries dismissed on 11 July 2024 were disqualified for reappointment to the cabinet for the same reason or reasons that they were dismissed. 19.It cannot be that the cabinet secretaries were dismissed for no reason; as a matter of fact, it has not been suggested that the reason the President dismissed his entire cabinet save for the Prime Cabinet Secretary was because there was no reason; that, of course would be irrational and, no doubt, an abuse of discretion by the President. As I understand the President’s statement, while dismissing his cabinet, he was motivated by what he believed to be ineffectiveness or incompetence on the part of his cabinet; if there was any other reason, it is not up to the court to speculate what that reason was. The burden was always on the respondents to say if there was any other reason, assuming it is not what I understand the President to have meant in his statement, and persuade the court that such other reason could not amount to disqualification for reappointment under article 259(10) of the Constitution. I am afraid the respondents did not discharge this burden. 20.I must add that if, in dismissing his cabinet, the President was interested in reorganising his cabinet and “setting up a broad-based government”, article 152(5)(a) of the Constitution gave him the leeway to reshuffle his cabinet and, subject to sections 10 and 11 of the Political Parties Act, cap. 7D, which I shall return to in due course, include in his cabinet members of other political parties outside the ruling party. If, in the process of forming a “broad based government” in line with the provisions of the Political Parties Act, some members of the then-existing cabinet lost their positions, their dismissal in these circumstances would not be considered arbitrary but informed by the agreement between the ruling party and the political parties incorporated in the government. 21.The point is, it cannot be assumed that in dismissing his cabinet, the President was, in actual sense, reassigning cabinet secretaries under article 152(5)(a) of the Constitution. Needless to say, dismissal under article 152(5)(b) of the Constitution is worlds apart from reassignment under article 152(5)(a), and the two cannot be employed interchangeably; neither is one an alternative to the other. 22.For all I have said on this subject, my conclusion is this: In nominating and reappointing the members of the cabinet that he had dismissed, the President acted contrary to Article 259(10) of the Constitution.“Nomination and appointment to the cabinet of opposition sitting Members of Parliament and national officials from a party of parties not in Government” 23.The core pillar of Kenya’s identity as a Republic is the affirmation that it is a multi-party democratic state founded on express national values and principles of governance. Article 4 (2) of the Constitution states so unambiguously; this provision of the Constitution reads as follows:"The Republic of Kenya shall be a multi-party democratic state founded on national values and principles of governance referred to in Article 10." 24.A glimpse of the historical context of this provision is found in the Final Report of the Committee of Experts on Constitutional Review dated 11 October 2010; the report captioned “The struggle for Constitutional Reform: 1992-2010” stated as follows:“The Advent of Multi-Party Democracy and the beginning of a formal process of constitutional reform: 1992-2002 A wind of change swept across Africa in the early1990s and popular resistance to dictatorial and self-perpetuating regimes grew. In Kenya, political pressure for the restoration of multiparty democracy intensified and in1991, section 2A was repealed.” 25.Thus, Article 4 was a culmination of decades of struggle and sacrifices made by Kenyans for democratic governance and political freedom from the repressive one-party rule. Section 2A to which reference has been made in this quotation, introduced a de jure one-party state. It is thus not difficult to appreciate why Kenyans deliberately chose to protect multi-party democracy as a key component of their collective identity as a Republic in August, 2010. Needless to say, the quest for multi-party democracy was a major driving force for the constitutional reforms that culminated in the Constitution of Kenya, 2010. 26.As a guardian of the Constitution, this Honourable Court has a constitutional duty to ensure these gains are not whittled away through any form of action or inaction on the part of the political class or as a result of the conduct of any person or entity. 27.Article 259 (1) implores that the Constitution be interpreted in a manner that promotes its purposes, values and principles; advances the rule of law, and the human rights and fundamental freedoms in the Bill of rights, permits the development of the law; and, contributes to good governance. 28.It is from this perspective that we consider whether the President was constitutionally right in nominating and appointing sitting members of Parliament and national officials of the Orange Democratic Party to the Government. 29.The law acknowledges that political parties can collaborate in pursuance of their manifestos and party ideals. The Political Parties Act provides a structured mechanism within which this collaboration can be achieved. To be precise, section 10 of the Act provides for formation of coalitions between or amongst parties. It reads as follows:Section 10. Coalitions(1)Two or more political parties may form a coalition or a coalition political party before or after an election and shall deposit the coalition agreement with the Registrar.(2)A coalition agreement entered into before an election shall be deposited with the Registrar at least three months before that election. Provided that in the case of a coalition political party, the coalition political party shall submit the coalition agreement at least one hundred and twenty days before a general election.(3)A coalition agreement entered into after an election shall be deposited with the Registrar within twenty-one days of the signing of the coalition agreement. (4) A coalition agreement shall set out the matters specified in the Third Schedule. 30.Section 11, on the other hand, provides for party mergers according to which parties may go beyond coalitions and merge; this section reads as follows:11.Mergers(1)A political party may merge with another political party by—(a)forming a new political party; or(b)merging into an already registered political party.(2)A political party shall not merge with another political party unless the merger is in accordance with the Constitution, rules and procedures of the political parties. (3) The decision to merge shall be in writing and shall be duly executed by the political party officials authorized to execute agreements on behalf of the political parties.(4)The governing body of each political party that intends to merge under subsection (2) shall—(a)determine the Constitution, rules, regulations and the principles which shall form the basis of the merger in accordance with the constitutions of the respective political parties; and (b) sign the merger agreement.(5)The merger agreement signed under subsection (4)(b) shall be deposited with the Registrar within twenty-one days of the signing of the agreement.(5A)Upon receipt of the merger instrument under subsection (1)(a), the Registrar shall immediately withdraw and cancel the certificates of registration of all the political parties that have merged and shall gazette the dissolution of the merged parties within seven days and a certificate of full registration issued to the new political party.(6)Upon receipt of the merger instrument under subsection (1)(b), the Registrar shall gazette within seven days the dissolution of the parties that have resolved to dissolve and the registered party the parties have merged into;(7)Where a party merges under this section, a member of the political party that has merged with another political party shall be deemed to be a member of the new political party.(8)Despite subsection (7), a member who is a President, Deputy President, Governor or Deputy Governor, Member of Parliament or member of a County Assembly, and who does not desire to be a member of the new political party registered after the merger shall continue to serve in such elected office for the remainder of the term, and may join another political party or choose to be an independent member within thirty days of the registration of the new party.(9)Where political parties have merged and dissolved the particulars including their names, symbol, logo, slogan and colours shall be removed from the register of political parties and such names, symbols, logos, slogans and colours shall not be available for registration by any person as a political party in the subsequent election following the merger.(10)Despite subsection (9), where the merging parties wish to register and use any of the merging parties'' names, symbols, logos, slogans and colours, such registration shall be permitted.(11)The records, assets and liabilities, rights and obligations of all the dissolved political parties shall be the records, assets and liabilities, rights and obligations of the new political party including their entitlement to the Political Parties Fund under section 25 of the Act. 31.Our reading of these provisions is that the only means through which members of a political party that is not in government, or an opposition party as is normally referred to in common parlance, irrespective of whether they are sitting Members of Parliament or its national officials, can be incorporated into the Government as cabinet secretaries is through the framework provided under section 10 and 11 of the Political Parties Act. 32.While signalling his intention to co-opt the opposition parties in the Government after dismissing his cabinet the President stated as follows:“15.I will immediately engage in extensive consultations across different sectors and political formations, with the aim of setting up a broad-based government that will assist me in accelerating and expediting the necessary, urgent and irreversible, implementation of radical programmes to deal with the burden of debt, raising domestic resources, expanding job opportunities, eliminate wastage and unnecessary duplication of a multiplicity of government agencies and slay the dragon of corruption consequently making the government lean, inexpensive, effective and efficient.” 33.The sitting Members of Parliament and national party officials the Orange Democratic Party must have been subsequently incorporated in the Government as cabinet secretaries in realisation of the President’s agenda of “setting up a broad-based government”. 34.No doubt the President’s intentions in co-operating with what the President described as “political formations” for the sake of a united Kenya were noble; after all, under article 131(1)(e ) of the Constitution, the President is a symbol of national unity and if, in his view, working with the political parties other than those in government or opposition parties could help in achieving this objective, nothing should stand in his way. 35.My only reservation is in the manner through which the President executed his intentions. I say so to emphasise the point that the only means through which the ruling party can work with the opposition parties is through the legal framework provided under the Political Parties Act. To be precise, the President had a choice of engaging any of the political parties for a coalition or a merger which would then provide a basis for the formation of what he described as a “broad based Government”. 36.The appointment of the sitting Members of Parliament and National Party officials of an opposition party outside the express legal framework was not only contrary to sections 10 and 11 of the Political Parties Act but it was also an affront to Article 4 of the Constitution on Multiparty democracy. It was contrary to National Values and Principles of Governance under Article 10 of the Constitution and, thus, unconstitutional. 37.For the reasons I have given, I would allow the petition and make the declaration that that the National Assembly violated the Constitution by accepting and approving nominees for Cabinet positions when it was clear that it effectively violated the rule of law and specifically Article 27 (8) of the Constitution; I would also allow the prayer for the declaration that since the Cabinet, as constituted, fails the test of legality under articles 152 (1), 152 (2) and Article 27 (8), it is in violation of Article 3 (2) and Article 2 (4) of the Constitution and is, therefore, invalid. I would also be inclined to make a declaration that the President’s nomination for reappointment of Cabinet Secretaries he had dismissed on 11 July 2024 was in violation of article 259(10) of the Constitution. The dismissal of the Cabinet Secretaries made them ineligible to be nominated for appointment as Cabinet Secretaries on account of article 259(10) of the Constitution. 38.Finally, I would make the declaration that the nomination for appointment and the subsequent appointment of members of political parties other than the ruling party in the absence of any merger or coalition agreements under sections 10 and 11 of the Political Parties Act was not only contrary to those provisions of the law but it is an assault on identification of the Republic of Kenya as a multi-party democracy under article 4 of the Constitution. The appointments were in violation of Article 4 of the Constitution and the broad-based government that ensued has neither constitutional nor legal basis. 39.In the wake of the majority judgment, my decision on the petition is of little or no consequence. On costs, I would adopt the order proposed in the majority judgment. DATED, SIGNED AND DELIVERED IN NAIROBI THIS 30TH DAY OF JUNE 2026.…………………………………….HON. JAIRUS NGAAHJUDGE