Justice Weldon Korir has stopped the implementation of Chief Justice David Maraga's advisory on dissolution of Parliament.
This is after two petitioners on Wednesday challenged Maraga’s advisory to dissolve Parliament for failing to meet the thirds gender rule.
“In the circumstances of this case, I therefore find the petitioners notice of motion dated September 23 merited. I allow it in terms of prayer so that a conservatory order issued for the preservation of the status quo of the Advice of the Chief Justice dated September 21 to the president pending interparteis hearing and determination of the petition,” Korir ruled on Thursday.
Petitioners Leina Konchella and Abdul Munasar wanted the High Court to stay the advisory, saying it is subject to judicial review as an administrative act.
The petitioners, through lawyer Muturi Mwangi, avered that the written advice to President Uhuru Kenyatta is not judicial.
They further argued that there were no proceedings before the decision was reached.
“The Chief Justice has mischievously attempted to shield his act by fashioning the advisory as a judicial decision while no such proceedings can competently exist in the Kenyan court system,” according to the petitioners.
Leina and Abdul further reasoned that Maraga’s action is beyond his authority to the extent that it purports to be grounded on Parliament's failure to enact two-thirds gender law.
“No such timelines are specified under Article 261 of the Constitution. The argument here is that Article 100 which has timelines does not demand the two-thirds gender quota.”
The duo says the two-thirds gender rule can only be implemented through extensive amendments to the Constitution.
Leina and Abdul also aver that the two-thirds gender rule is not about women only and as such construing the Constitution to create more seats for women is discriminatory, and absurd.
“Should the President dissolve Parliament as advised, the realisation of the two-thirds gender rule will be in jeopardy.”
