CJ Martha Koome [JUDICIARY/X]A petition seeking to dissolve Kenya’s Parliament and Senate over failure to implement the two-thirds gender rule has been escalated to Chief Justice Martha Koome for possible empanelment of a constitutional bench.
The decision was made by Justice Lawrence Mugambi in a ruling dated July 10, 2025.
The petitioners, Margaret Toili, Eddah Marete, and Agnes Ndonji, argue that the 13th Parliament, like its predecessors, has violated the constitution by failing to ensure that no more than two-thirds of any elective public body is composed of one gender.
They are calling for the dissolution of both the National Assembly and the Senate, alongside orders compelling political parties to comply with the gender rule during nominations.
Justice Mugambi did not rule on the merits of the petition but found that the matter raises substantial constitutional questions warranting consideration by a multi-judge bench.
Referring the case to Chief Justice Koome under Article 165(4) of the Constitution, he emphasised the broader implications of the suit.
“In my view, there is an enduring legal question that characterises all these petitions, and this is the failure by Parliament to comply with the two-thirds gender rule. This question, unless resolved, will keep on recurring with every Parliament that comes up after every general election, hence it cannot plausibly be argued that it is a matter limited to the present Parliament,” Justice Mugambi noted.
The respondents, the Speakers of both houses, had asked the court to consolidate this case with several older petitions filed between 2017 and 2020 that also challenged Parliament’s failure to implement the gender rule.
They argued that the issues raised were nearly identical and involved similar constitutional questions and relief.
But the petitioners opposed consolidation, pointing out that many of those cases targeted the now-defunct 12th Parliament, had already been concluded or dismissed, and were therefore not appropriate to merge with a fresh petition aimed at the 13th Parliament.
Justice Mugambi agreed that consolidation was not within his jurisdiction as a single judge and that the issue required a bench determination.
However, he stressed that the legal issue remained live.
“It is an undeniable constitutional issue that not only needs to be resolved in relation to the present Parliament but also every other Parliament to guide the nation and forestall repeated litigation on the same constitutional question. The previous petitions cannot therefore, be said to be moot in relation to the present petition,” the judge said.
He added that the constitutional obligation to uphold the two-thirds gender principle was not tied to any one Parliament but applies across all electoral cycles, making this a recurring constitutional failure.
“Nothing prevents this Court from forwarding this matter to the Chief Justice for empanelment of a bench to hear and determine it pursuant to Article 165 (4) but with a very humble recommendation to the Honorable CJ to consider placing the instant Petition before the same Bench that is handling the other related consolidated Petitions to consider this matter as well,” the judge ruled.
In their petition, the trio seeks a series of constitutional remedies aimed at addressing Parliament's continued failure to comply with the two-thirds gender rule.
They ask the Court to issue a mandatory declaration that both the current National Assembly and the Senate be dissolved for violating Articles 27(3), 81(b), and 100 of the Constitution.
Further, they request that, upon such dissolution, the Registrar of Political Parties be directed to ensure all political parties adhere to the gender rule during nominations and elections.
The petitioners also seek damages for what they say is a violation of their constitutional rights and request any other relief the Court may deem just and appropriate in the circumstances.
