Illegal Cabinet: Ruto disobeys court order on gender rule, risks losing Cabinet

President William Ruto chairs a Cabinet meeting at State House, Nairobi, on June 30, 2026. [PCS]

On the day his Cabinet was staring at dissolution, President William Ruto announced the date of Talanta Stadium opening with a match being played by European giants Bayern Munich against Ajax Amsterdam.

The dissolution is the result of a disobeyed court order. The Cabinet stands sacked, after he failed to comply with a court order that instructed him to reconstitute it to comply with the two-thirds gender rule.

High Court Judges Eric Ogola, Stephen Githinji and Jairus Ngaah directed the President to appoint a two-thirds gender rule-compliant cabinet within 120 days, with the grace period lapsing on October 28, 2026.

By close of business on Wednesday, the president had not complied with the court order, creating a legal crisis.

Legal experts, human rights defenders and human rights groups now say that by October 29, 2026, at 12.01 am, the Cabinet Secretaries were deemed to have been kicked out by the operation of the judgment and any decision made after the lapse of the period by the Cabinet will be illegal.

Katiba Institute, which was one of the parties who had sued, said that the President was required by Wednesday to have appointed two extra women to meet the threshold set by the law, or reduce men or do away with the Cabinet and appoint a new one.

“The President has until 28 October 2026 to comply by appointing at least two more women (a minimum of 9 of 25 members), reducing the number of men, or both. Katiba Institute will monitor compliance and, if the President fails to act, will pursue every available avenue of enforcement,” the lobby said.

Its lawyer, Joshua Malidzo, in an interview with The Standard, asserted that it will be illegal to continue with the current Cabinet.

“The consequence is that the Cabinet is unconstitutional. Since there is no appeal, after tomorrow, the consequence is that any decision made is illegal and invalid,” said Malidzo.

Katiba’s sentiments mirror those of Busia Senator Okiya Omtatah, who said that Ruto risks being cited for disobeying court orders.

“At the end of the grace period, the suspended orders take effect. Otherwise, the President will be in contempt of Court if he retains the condemned Cabinet,” said Okiya.

On the other hand, former Law Society of Kenya President Eric Theuri was of the view that although the government may argue that there cannot be a vacuum, it will not stand as there was no movement or action from the appointing authority.

He maintained that no Cabinet Secretary can stand to claim he or she is in office after the 120 days.

“Upon the expiry of the suspension of implementation of the Judgment, then technically speaking the Cabinet will be illegal and any person holding himself as a CS will be doing so against the law. The decisions they make are subject to legal challenge as they are invalid. The payment they get in the form of salaries would also be subject to legal challenges.”

“It is possible that the government will respond to the issue by stating the doctrine of necessity and that the government cannot be held in a vacuum and until reconstituted, it should continue to function.  This argument would be defeated because the court gave sufficient time for compliance,” said Theuri.

Lawyer Victor Swanya argued that if the President failed to appoint the Cabinet, as per the court orders, he can be cited for disobedience.

On the other hand, Swanya said, the Executive could also move the court to extend the period by giving reasons why they have not complied.

“If they have not done so, then automatically they become contemptuous, and they need to explain, and as I said, anybody can go and cite them for contempt and once convicted, they should serve civil jail. The other important issue is that the issue of two-thirds gender appointments is a constitutional requirement; it is actually a value within our laws that need to be embraced at all levels, whether it is at the Legislature, the Executive, the Judiciary, even employment in our institutions; they need to be compliant,” added Swanya.

He insisted that this is a requirement that the Head of State cannot forgo or ignore.

“ You remember very well that former Chief Justice Emeritus David Maraga followed the law because Parliament had failed to enact the law to make sure gender parity is complied with or a law that gives effect to that Constitutional order, and he had recommended that Parliament be dissolved because it did not have gender parity gap complied with,” he continued.

His sentiments were echoed by lawyer Nduta Migwi. She said that the President bears personal liability but cautioned that it would create another battle owing to his immunity.

“Failure by any person to comply with a court order is considered as contempt of court, which attracts personal liability for the person in breach. However, any attempt to hold the President personally in contempt would raise difficult questions about presidential immunity and the enforceability of court orders against a sitting President. This is a constitutional obstacle,” said Nduta.

Lawyer Saitabao Ole Kanchory said that the back stops with the Judiciary. He insisted that the courts have been too soft on non-compliance.

 “It was a consolidated petition and my petition was on the broad-based government. This is a court that is not being run under the law. Courts are exacerbating this by failing to have issue sanctions for failure to uphold the law. This is not a new issue. Remember it was the same during Uhuru Kenyatta’s government,” said Saitabao.

Lawyer Willis Otieno and former LSK Vice President Mwaura Kabata separately said that the Cabinet ceases to be at midnight. Otieno said it is null and void while Kabata insisted that it is illegal.

Lawyer Waikwa Wanyoike asserted that the President ought to comply but his actions speak otherwise.

"It is unfathomable that the Head of State, who has the first and the highest duty of not only complying with but also protecting the Constitution, has become its highest violator. Non-compliance implies that any decision of the Cabinet or individual Cabinet Secretaries from now onwards is unconstitutional

In consolidated petitions, a coalition of civil society organisations and public interest litigants led by Saitabao Ole Kanchory, Katiba, Centre for Rights Education and Awareness, Institute for Social Accountability, Kenya Human Rights Commission and Okiya Omtatah Okoiti, challenged the constitutionality of the Cabinet following its reconstitution after the July 2024 Gen Z protests.

They also questioned the President’s move to take up Members of Parliament and recycle some of the CSs who were in the Cabinet that he dissolved after Gen Z protests.

In the majority judgment, Justices Ogola and Githinji found that the Cabinet's composition falls short of the constitutional threshold requiring that no more than two-thirds of members be of the same gender.

The judges noted that the Secretary to the Cabinet cannot be included in the compliance calculation because Article 152 of the Constitution defines the Cabinet as consisting only of the President, Deputy President, Attorney-General, and Cabinet Secretaries.

The current Cabinet comprises eight women: Lands Cabinet Secretary Alice Wahome, Tourism Cabinet Secretary Rebecca Miano, Defence Cabinet Secretary Soipan Tuya, Environment Cabinet Secretary Dr Deborah Barasa, East African Community Cabinet Secretary Beatrice Askul Moe, Gender Cabinet Secretary Hanna Cheptumo, Attorney-General Dorcas Oduor and Secretary to the Cabinet Mercy Wanjau.

The two judges were, however, given the president a 120-day grace period to put the Cabinet in order, saying that an immediate dissolution would create a crisis.

“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,” Justices Ogola and Githinji ruled.

Their colleague, Justice Ngaah, dissented. He questioned why President Ruto reappointed Cabinet Secretaries he had previously dismissed as ineffective following the nationwide protests.

"Why would the President renominate people that he found to be ineffective and dismissed them to the same positions?" he asked, arguing that a dismissed State officer can be reappointed only if they remain qualified under the Constitution.

He was of the view that, unlike the elective seats where the two-thirds gender rule is frustrated by lack of a law, the appointive positions do not need to wait.

The judge maintained that the President, who is the appointing authority, ought to have factored in compliance with the Constitution from the start.

At the same time, Justice Ngaah held that the National Assembly violated the law by accepting and approving the Cabinet nominees while knowing that gender principle had not been complied with. According to him, a failure to follow the Constitution ought to have consequences once the violations were identified.

“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 egality 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,” said Ngaah.