Toili & 2 others v Speaker, National Assembly & 2 others (Constitutional Petition E548 of 2022) [2026] KEHC 7678 (KLR) (Constitutional and Human Rights) (5 June 2026) (Judgment)

Toili & 2 others v Speaker, National Assembly & 2 others (Constitutional Petition E548 of 2022) [2026] KEHC 7678 (KLR) (Constitutional and Human Rights) (5 June 2026) (Judgment) Neutral citation: [2026] KEHC 7678 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Constitutional Petition E548 of 2022 J Ngaah, PM Nyaundi, LN Mugambi, MO Ado & TW Ouya, JJ June 5, 2026 Between Margaret Toili 1st Petitioner Eddah Marete 2nd Petitioner Agnes Ndonji 3rd Petitioner and Speaker, National Assembly 1st Respondent Speaker, Senate 2nd Respondent Attorney General 3rd Respondent Judgment Introduction 1.The Petition dated 19th December 2022 is supported by the 1st Petitioner’s affidavit in support of even date, an undated supplementary affidavit and a further affidavit sworn by the 2nd Petitioner on 22nd July 2024. 2.Following the General Elections held in August 2022, Members of the 1st and 2nd Respondents were duly elected to office. The composition of the 13th Parliament comprises 272 males and 77 female Members, while the Senate consists of 67 members, of whom 47 are male and 20 are female. It is on the basis of the foregoing composition that the instant Petition was instituted. It contends that the Senate is in violation of the Two-Thirds Gender Principle as envisaged under the Constitution. Petitioners’ Case 3.The Petitioners’ case is founded on the contention that the composition of the current Parliament violates the Two-Thirds Gender Principle entrenched under the Constitution. They relied on Article 81(b) of the Constitution which obligates the electoral system to ensure that not more than two-thirds of the members of elective public bodies are of the same gender. 4.The Petitioners contended that Parliament has persistently failed to enact legislation necessary to actualize equitable representation in Parliament, particularly with respect to women and other marginalized groups. They pointed out that the Fifth Schedule to the Constitution required Parliament to enact legislation giving effect to Article 100 of the Constitution within five years from the effective date of the Constitution. 5.According to the Petitioners, Article 261 of the Constitution imposes a mandatory obligation upon Parliament to enact legislation contemplated under the Constitution within the prescribed timelines. They further argued that Article 261(5) grants any person the right to petition the High Court where Parliament fails to enact the requisite legislation within the stipulated period. 6.The Petitioners relied heavily on the Supreme Court Advisory Opinion in In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012] eKLR, where the Supreme Court advised that legislation necessary to operationalize the Two-Thirds Gender Principle ought to have been enacted by 27th August 2015. They maintained that despite the lapse of this timeline, Parliament has failed to enact the requisite legislation under Articles 27, 81(b) and 100 of the Constitution. 7.The Petitioners further averred that due to Parliament’s continued non-compliance, the former Chief Justice, Hon. David Maraga, on 21st September 2020 advised the President to dissolve Parliament pursuant to Article 261(7) of the Constitution. 8.The Petitioners traced the historical efforts made towards implementation of the Two-Thirds Gender Principle. They referred to the decisions in Centre for Rights Education and Awareness (CREAW) v Attorney General & Another [2015] eKLR and Centre for Rights Education and Awareness & 2 Others v Speaker of the National Assembly & 6 Others [2017] eKLR, where the High Court directed the Attorney General, Parliament and the Commission for the Implementation of the Constitution to prepare and facilitate legislation to operationalize the principle. 9.They further pointed to various unsuccessful legislative attempts aimed at implementing the principle, including the Constitution of Kenya (Amendment) Bills of 2015, the Elections Laws (Amendment) Bill, 2016 and the Constitution of Kenya (Amendment) Bill, 2019, commonly referred to as the “Duale Bill.” The Petitioners contended that despite these initiatives, Parliament has failed to pass the necessary legislation. 10.In their further affidavit, the Petitioners deponed that subsequent to the filing of the Petition, the Cabinet Secretary for Gender, Culture, the Arts and Heritage established a Multi-Sectoral Working Group through Gazette Notice No. 1084 of 2023 to develop proposals aimed at actualizing the Two-Thirds Gender Principle. They stated that the Working Group’s report was approved for tabling before Parliament on 27th February 2024. 11.Against that background, the Petitioners maintained that Parliament’s continued failure to enact legislation implementing the Two-Thirds Gender Principle constitutes a continuing violation of the Constitution, thereby necessitating intervention by this Court under Article 261(5), (6) and (7) of the Constitution. 1st Respondent’s Case 12.The 1st Respondent opposed the Petition through the Replying Affidavit sworn on 17th May 2023 by Samuel Njoroge, the Clerk of the National Assembly. 13.The 1st Respondent maintained that the constitutional promise relating to the realization of the Two-Thirds Gender Principle was intended to be progressively achieved through legislative and policy measures rather than through immediate implementation. Reliance was placed on the Supreme Court Advisory Opinion No. 2 of 2012 which, according to the Respondent, recognized that realization of the principle would require progressive implementation. 14.It was deposed that the Senate was already compliant with the Two-Thirds Gender Principle, having 21 women out of 67 members. Further, the Respondent contended that the Constitution already incorporates affirmative action mechanisms aimed at improving gender balance, including the election of forty-seven women representatives to the National Assembly under Article 97(1)(b) and nomination mechanisms under Articles 90, 97 and 98 of the Constitution. 15.The 1st Respondent further averred that several legislative initiatives had previously been introduced in Parliament with a view to operationalizing Article 81(b) of the Constitution. Reference was made to the Constitution of Kenya (Amendment) Bills Nos. 4, 6 and 16 of 2015, the Elections Laws (Amendment) Bill, 2016 and the Constitution of Kenya (Amendment) Bill, 2019. 16.The Respondent emphasized that Parliament had demonstrated goodwill towards implementation of the Two-Thirds Gender Principle through public participation exercises, stakeholder consultations and legislative initiatives. It was argued that the then Parliament was still relatively new and ought to be afforded sufficient time to formulate and implement its legislative agenda. 17.The Respondent further contended that legislative outcomes cannot be predetermined, as enactment of legislation depends on the democratic and independent will of Members of Parliament. According to the Respondent, the number of women elected into Parliament ultimately depends on the sovereign will of the electorate and not the Speakers of Parliament. 18.It was further argued that the 1st and 2nd Respondents lack constitutional authority to interfere with the democratic choices made by voters in elections and cannot therefore be faulted for the gender composition of Parliament. 19.The 1st Respondent also contended that the Petitioners had failed to demonstrate with precision the manner in which their constitutional rights had been violated, contrary to the principles enunciated in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR. 20.Finally, the 1st Respondent argued that dissolving Parliament would be counterproductive since Parliament itself is the institution constitutionally mandated to enact the legislation necessary to operationalize the Two-Thirds Gender Principle. 2nd Respondent’s Case 21.The 2nd Respondent opposed the Petition through the Replying Affidavit sworn on 24th April 2023 by Jeremiah Nyegenye, the Clerk of the Senate. 22.The 2nd Respondent similarly contended that realization of the Two-Thirds Gender Principle was intended to be progressive and dependent upon legislative and policy interventions. Reliance was placed on the Supreme Court Advisory Opinion No. 2 of 2012. 23.The Respondent maintained that the Senate was already compliant with the constitutional threshold, having 21 women out of 67 members. It was argued that the Constitution already contains mechanisms designed to enhance women representation, including affirmative action seats and political party nomination processes under Articles 90, 97 and 98 of the Constitution. 24.The Respondent further pointed to several legislative initiatives previously introduced before Parliament aimed at operationalizing Article 81(b) of the Constitution, including the Constitution of Kenya (Amendment) Bills of 2015, the Elections Laws (Amendment) Bill, 2016 and the Constitution of Kenya (Amendment) Bill, 2019. 25.It was contended that enactment of such legislation depends on the democratic and independent will of Members of Parliament and Senators, and therefore legislative outcomes cannot be guaranteed. 26.The 2nd Respondent further argued that the current Parliament was still in the early stages of its constitutional term and ought to be given adequate time to pursue its legislative agenda instead of being compelled to adopt proposals initiated by previous Parliaments. 27.The Respondent reiterated that the number of women elected into Parliament is ultimately dependent upon the sovereign will of the electorate and that the Speakers of Parliament have no constitutional mandate to influence electoral outcomes. 28.The 2nd Respondent also maintained that the Petitioners had failed to demonstrate any specific violation of constitutional rights attributable to the actions or omissions of the Respondents. 3rd Respondent’s Case 29.The 3rd Respondent opposed the Petition through Grounds of Opposition dated 1st March 2023. 30.The 3rd Respondent contended that the reliefs sought offend the doctrine of separation of powers by inviting the Court to direct Parliament on the manner of performing its constitutional mandate. 31.It was further argued that the Petitioners had failed to demonstrate with precision how the 3rd Respondent had violated their constitutional rights as required under the principles set out in Anarita Karimi Njeru v Republic [1979] eKLR. 32.The 3rd Respondent maintained that its constitutional mandate under Article 156(4) of the Constitution and section 5 of the Office of the Attorney General Act does not include enactment of legislation. 33.The 3rd Respondent further contended that the Petition was founded on a misinterpretation of the Constitution since the current Parliament, having assumed office in 2022, still had time within its constitutional term to enact legislation implementing the Two-Thirds Gender Principle. 34.On that basis, the 3rd Respondent urged the Court to find that the Petition was premature, incompetent and an abuse of the court process. Petitioners’ Submissions 35.The Petitioners submitted that this Court is properly seized of jurisdiction under Article 165(3)(b) of the Constitution to determine questions concerning alleged violations of constitutional rights and freedoms. They further relied on Article 261(5) of the Constitution which expressly grants any person the right to petition the High Court where Parliament fails to enact legislation required by the Constitution within the stipulated timelines. 36.To support this proposition, the Petitioners relied on Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & Another [2012] eKLR and Orange Democratic Movement v Yusuf Ali Mohammed & 5 Others [2018] eKLR on the principle that a court’s jurisdiction flows from the Constitution and statute. 37.On the substantive issue, the Petitioners submitted that Articles 27(8), 81(b) and 100 of the Constitution impose a mandatory obligation upon Parliament to enact legislation implementing the Two-Thirds Gender Principle. They argued that Parliament’s continued failure to enact the legislation constitutes an ongoing violation of the Constitution and of women’s rights to equality and freedom from discrimination. 38.The Petitioners revisited the historical efforts undertaken towards realization of the principle, including the Supreme Court Advisory Opinion in In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012] eKLR and the decisions in the CREAW cases, all of which underscored Parliament’s constitutional obligation to enact the requisite legislation. 39.The Petitioners submitted that despite numerous court pronouncements and repeated legislative attempts, Parliament has remained in persistent violation of the Constitution by failing to enact the legislation necessary to operationalize the Two-Thirds Gender Principle. 40.They further argued that Article 259 of the Constitution requires courts to interpret the Constitution in a manner that promotes its purposes, values and principles, advances human rights and contributes to good governance. The Court was therefore urged to adopt an interpretation that advances equality and gender parity in Parliament. 41.Reliance was also placed on Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others [2005] ZACC 14 for the proposition that legislation intended to give effect to constitutional rights ought not to be ignored or undermined. 42.The Petitioners ultimately urged the Court to issue declaratory orders, an order of mandamus compelling compliance with the Constitution and an order directing dissolution of Parliament pursuant to Article 261(7) of the Constitution. 3rd Respondent’s Submissions 43.The 3rd Respondent submitted that the central issue for determination was whether the current Parliament should be dissolved for failure to comply with the Two-Thirds Gender Principle. 44.The 3rd Respondent acknowledged that the Constitution introduced affirmative action measures aimed at enhancing women’s representation in public affairs, including the creation of special seats for women in the National Assembly and nomination mechanisms within the Senate and County Assemblies. 45.It was submitted that Kenya is bound by various international and regional instruments promoting gender equality, including the Universal Declaration of Human Rights, the Beijing Declaration and Platform for Action, the Maputo Protocol and the Solemn Declaration on Gender Equality in Africa. According to the 3rd Respondent, these obligations were domesticated through Articles 27 and 81(b) of the Constitution. 46.The 3rd Respondent further submitted that Article 27(8) obligates the State to take legislative and other measures to implement the Two-Thirds Gender Principle, but that uncertainty initially arose regarding the manner and timing of implementation. 47.The 3rd Respondent revisited the Supreme Court Advisory Opinion No. 2 of 2012 where the Supreme Court held that realization of the principle would be progressive and dependent upon legislative measures, with legislation expected to be enacted by 27th August 2015. 48.The 3rd Respondent outlined the various initiatives undertaken following the advisory opinion, including the establishment of a working group and the introduction of several constitutional amendment Bills and legislative proposals aimed at operationalizing the principle. 49.The 3rd Respondent acknowledged that Parliament failed to enact the legislation within the constitutional timelines, even after obtaining extension of time under Article 261(2) of the Constitution. 50.Reference was made to the decision in Centre for Rights Education and Awareness (CREAW) & 2 Others v Speaker of the National Assembly & 6 Others [2017] eKLR where the High Court declared that Parliament had violated the Constitution by failing to enact the requisite legislation and directed Parliament to enact the legislation within sixty days. 51.The 3rd Respondent further noted that Parliament subsequently appealed against that decision in Speaker of the National Assembly v Centre for Rights Education & Awareness & 7 Others [2019] eKLR while contending that it had substantially complied with the Constitution through amendments to the Political Parties Act. 52.Finally, the 3rd Respondent submitted that although constitutional violations had been identified by the courts, the present Parliament still had time within its constitutional term to enact the necessary legislation. It was therefore urged that dissolution of Parliament would be premature in the circumstances. 53.No submissions were filed on behalf of the 1st and 2nd Respondents. Analysis and Determination 54.We have carefully considered the pleadings, affidavits, grounds of opposition and submissions filed by the parties. In our view, the following issues arise for determination:i.Whether Parliament has failed to enact legislation required to implement the Two-Thirds Gender Principle under the Constitution;ii.Whether the orders sought offend the doctrine of separation of powers; andiii.Whether this Court has jurisdiction to grant the reliefs sought. 55.Before addressing the foregoing issues, it is necessary to make certain preliminary observations regarding the relationship between this Petition and Consolidated Petition No. E291 of 2020: Leina Konchella & 11 Others vs The Chief Justice and the President of the Supreme Court of Kenya & 4 Others. 56.The instant Petition was placed before this Bench following an application by the 1st and 2nd Respondents seeking its consolidation with Consolidated Petition No. E291 of 2020, which was already pending before this Court. The learned Judge who heard the application was persuaded that the two matters raised substantially similar constitutional questions concerning Parliament’s failure to comply with the Two-Thirds Gender Principle. Consequently, in a ruling delivered on 10th July 2025, the learned Judge recommended that the matter be placed before the same Bench seized of Consolidated Petition No. E291 of 2020. The Court observed as follows:“ 39.In my view, there is an enduring legal question that characterizes all these petitions and this is the failure by Parliament to comply with the two-thirds gender rule. This question, unless resolved, will keep recurring with every Parliament constituted after a general election. It therefore cannot plausibly be argued that the matter is limited to the present Parliament. It is equally a fundamental constitutional question that has occupied the public sphere for a considerable period and there is need for an interpretive solution to guide the country and forestall repeated litigation on the same constitutional issue. 40.I am conscious of my limitations in so far as making a determination concerning consolidation with matters already before a Bench because the decision of a single Judge is not binding on the Bench. However, nothing prevents this Court from forwarding this matter to the Honourable the Chief Justice for empanelment under Article 165(4) of the Constitution, with a humble recommendation that the instant Petition be placed before the same Bench handling the related consolidated petitions.” 57.By the time this matter was eventually placed before us, Consolidated Petition No. E291 of 2020 had substantially progressed. We therefore directed that the two matters proceed independently, albeit contemporaneously. 58.Having now fully considered both matters, we are satisfied that the constitutional questions raised in this Petition substantially mirror those that were canvassed and determined in Consolidated Petition No. E291 of 2020. 59.On the question whether Parliament has failed to enact legislation necessary to implement the Two-Thirds Gender Principle, we note that this issue has been conclusively addressed in several superior court decisions. The Supreme Court, in In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012] eKLR, rendered an advisory opinion on the implementation of Articles 27(8) and 81(b) of the Constitution. Subsequently, the High Court and the Court of Appeal pronounced themselves on the same issue in Centre for Rights Education and Awareness (CREAW) v Attorney General & another [2015] eKLR; Centre for Rights Education and Awareness & 2 others v Speaker of the National Assembly & 6 others [2017] eKLR; and Speaker of the National Assembly & another v CREAW & 7 others [2019] eKLR. 60.These decisions uniformly held that Parliament failed to enact legislation required to operationalize the Two-Thirds Gender Principle within the timelines prescribed by the Constitution. Accordingly, the issue of legislative failure is no longer open for reconsideration before this Court and is, to that extent, res judicata. 61.With regard to jurisdiction, we reiterate the position we adopted in Consolidated Petition No. E291 of 2020, namely that the High Court derives its jurisdiction directly from the Constitution. Under Article 165(3)(d), the High Court has jurisdiction to determine questions concerning the interpretation of the Constitution, including whether any act or omission under the authority of the Constitution is inconsistent with or in contravention of the Constitution. 62.We therefore reaffirm that this Court is properly seized of jurisdiction to entertain constitutional questions arising from alleged non-compliance with Articles 27, 81(b), 100 and 261 of the Constitution. 63.The Petitioners seek, inter alia, orders dissolving the National Assembly and the Senate for failure to comply with the Two-Thirds Gender Principle. They further seek consequential orders directing political parties to comply with the constitutional gender threshold in future nominations and elections. 64.However, as we observed in Consolidated Petition No. E291 of 2020, Article 261 of the Constitution establishes a specific constitutional mechanism for addressing Parliament’s failure to enact legislation required by the Constitution. The process commences with a declaratory order of the High Court and culminates, where non-compliance persists, in an advisory by the Chief Justice to the President to dissolve Parliament. The constitutional power to dissolve Parliament ultimately vests in the President. 65.In the present case, the gravamen of the Petition has already been substantially addressed in the earlier proceedings and determinations relating to Parliament’s failure to enact the requisite legislation. The constitutional and legal questions raised herein have therefore already received judicial pronouncement. 66.In our considered view, no practical utility would be served by re-litigating issues that have already been conclusively determined by superior courts. The present Petition, therefore, falls within the ambit of the doctrine of res -judicata. 67.Having fully considered and determined the issues in Consolidated Petition No. E291 of 2020, and having now carefully and extensively examined the instant Petition, we are of the considered view, as outlined above, that there is no significant divergence between the issues raised in the two Petitions. In our view, the present Petition invokes the principle of res judicata, specifically the application of issue estoppel. This principle precludes a party, or a representative of such party, from reintroducing issues that were conclusively determined in a former suit in subsequent proceedings, even where the causes of action in the two suits may differ. 68.The principle was articulated by the Court in Mumira v Attorney General [2022] KEHC 271 (KLR) as follows:“ 18.In the United Kingdom, res judicata is known as cause of action estoppel or issue estoppel… A distinction is made between ' cause of action estoppel’ and ‘issue estoppel’. In the first case, ‘the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter.’ (Arnold v National Westminster Bank [1991] 2 AC 93 (HL) at 104.) In the second case, ‘a particular issue forming a necessary ingredient in a cause of action has been litigated and decided, and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant, one of the parties seeks to reopen that issue.’ (at 105.)” 69.Where the constitutionality of a matter of significant public or national importance has been determined, the resolution of such a matter assumes the character of a decision in rem, transcending the interests of the immediate parties to the dispute. This position is reinforced by Explanation 6 of Section 7 of the Civil Procedure Act, which provides:“Where persons litigate bona fide in respect of a public right, or a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.” 70.Although the two judgments were delivered within minutes of each other, Consolidated Petition No. E291 of 2020 constitutes the earlier or former decision within the meaning of Section 7 of the Civil Procedure Act. This is because it was both filed earlier and delivered first in time. 71.In the Consolidated Petition E291 of 2020, we found and affirmed that the obligation imposed on Parliament is a continuous and binding one. It is not limited to any particular parliamentary term or to the tenure of specific members. The core issue in the instant Petition—namely, the dissolution of the 13th Parliament for failure to give effect to the two-thirds gender principle—mirrors the issues previously addressed in Consolidated Petition No. E291 of 2020, which concerned the 11th and 12th Parliaments. 72.We therefore hold and determine that the core issue and all related matters raised in the present Petition were addressed and conclusively determined in Consolidated Petition No. E291 of 2020. Accordingly, it is our considered position that the instant Petition is barred by the doctrine of res judicata. Disposition 73.The Petition dated 19th December 2022 is hereby dismissed. 74.Given the public interest nature of the proceedings, each party shall bear its own costs. SIGNED , DATED AND DELIVERED IN NAIROBI ON 5TH JUNE 2026NGAAH JAIRUSJUDGEPATRICIA NYAUNDIJUDGELAWRENCE MUGAMBIJUDGEMOSES ADOJUDGETABITHA OUYA WANYAMAJUDGE