Petition filed to bar Cabinet Secretaries from exercising powers over gender rule violation

The petitioner, Eliud Karanja Matindi, wants the court to declare that the Cabinet Secretaries cannot continue holding themselves out as members of the national executive after the government allegedly failed to comply with a court order requiring it to meet the two-thirds gender rule.

Matindi is also seeking the suspension of Executive Order No. 1 of 2025 to the extent that it assigns Cabinet Secretaries responsibility for implementing Acts of Parliament in their capacity as members of the national executive.

In addition, he wants the Controller of Budget restrained from approving withdrawals from the Consolidated Fund or any other public fund to facilitate the payment of salaries, remuneration and benefits to the affected officials as members of the national executive.

The petition follows an earlier High Court determination that the composition of the Cabinet violated Article 27(8) of the Constitution, which requires the State to take legislative and other measures to ensure that no more than two-thirds of members of elective or appointive bodies are of the same gender.

At the time of the court's assessment in June 2026, the Cabinet comprised 25 members, including the President, Deputy President, Attorney General and 22 Cabinet Secretaries.

Of these, only seven were women, representing approximately 28 per cent, while 18 were men, accounting for 72 per cent.

The court found that the Cabinet's gender composition fell short of the constitutional requirement by two women and directed the appointing authority to ensure compliance with Article 27(8) within 120 days from the date of judgment.

However, Matindi argues that President Ruto failed to take any action to implement the directive within the stipulated period, despite there being no orders staying the judgment.

He accuses the Head of State, alongside the other respondents, of deliberately disregarding the court's decision and continuing to operate in defiance of the Constitution.

To support his claims, the petitioner has cited Gazette Notices issued on October 30, 2026, by several Cabinet Secretaries, including John Mbadi Ng'ongo, Hanna Wendot Cheptumo, Aden Duale, Julius Migos Ogamba, Mutahi Kagwe and Beatrice Askul Moe.

He argues that the notices demonstrate that the officials continue to exercise powers and discharge responsibilities reserved for members of the national executive.

Matindi further maintains that the respondents continue to publicly present themselves and conduct government business as Cabinet members despite the expiry of the court-granted compliance period.

"It is the petitioners' case that, upon expiry of the court-granted compliance period... there is no national executive and Cabinet of the Republic of Kenya as decreed by Articles 130 and 152(1) of the Constitution," the court papers state.

The petitioner is asking the court to issue conservatory orders in the first instance pending an inter partes hearing of his application, followed by temporary orders pending the hearing and determination of the substantive petition.

He argues that allowing officials serving under an unconstitutional Cabinet to continue making decisions and exercising executive authority poses a serious threat to the country's constitutional order.

According to Matindi, granting the orders sought is necessary to safeguard the Constitution and prevent further exercise of executive powers by officials whose continued tenure he is challenging.