A High Court judge has cast doubt on the legality of the broad-based government formed after the 2024 political rapprochement between President William Ruto and Raila Odinga, saying the arrangement was created outside the constitutional structures meant to guide how political parties share power in government.
Justice Jairus Ngaah made the remarks in a dissenting opinion in petitions that challenged the legality of the Cabinet appointed after the June 2024 anti-government protests.
Although the court ultimately upheld the appointments, the judge maintained that the Constitution does not recognise the framework that brought opposition politicians into government without a formal coalition or merger agreement.
The case was among four consolidated petitions filed by Saitabao ole Kanchory, Katiba Institute, the Centre for Rights Education and Awareness, the Institute for Social Accountability, the Community Advocacy and Awareness Trust, World March of Women-Kenya, the Kenya Human Rights Commission, Wanjiru Gikonyo, Eliud Matindi, Magare Gikenyi and Busia Senator Okiya Omtatah.
The petitioners moved to court after President Ruto dismissed nearly the entire Cabinet following nationwide protests and later unveiled a new team that included prominent ODM figures.
Those appointed to Cabinet included John Mbadi, Opiyo Wandayi, Hassan Ali Joho and Wycliffe Oparanya, while several ODM-linked individuals also secured positions as Principal Secretaries and presidential advisers.
While Justices Eric Ogolla and Stephen Githinji dismissed the petitions and found the appointments lawful, Justice Ngaah disagreed with key aspects of the decision.
He said the matter before the court was not about the President’s constitutional authority to appoint Cabinet Secretaries. Rather, he said, the question was whether leaders from parties outside the ruling coalition could be brought into government without complying with procedures established by the Constitution and the Political Parties Act.
“The nomination for appointment and the subsequent appointment of members of political parties other than the ruling party in the absence of any merger or coalition agreements under sections 10 and 11 of the Political Parties Act was not only contrary to those provisions of the law but an assault on identification of the Republic of Kenya as a multi-party democracy under article 4 of the Constitution,” he said.
According to Justice Ngaah, Kenya’s laws already provide a clear path for political parties that wish to govern together through coalition agreements or mergers. He said those legal channels exist to protect the constitutional order and cannot be replaced by political arrangements that fall outside the law.
The judge further stated that allowing opposition parties to join government without following the required legal framework weakens the oversight role expected in a multi-party democratic system.
He also dismissed arguments that national unity or political accommodation could justify bypassing constitutional procedures, insisting that all public power must be exercised within the limits set by the Constitution.
Justice Ngaah also took issue with the return of Cabinet Secretaries who had been dismissed when the President dissolved the Cabinet in July 2024.
He observed that the President had cited concerns over governance, accountability and responsiveness when announcing the dismissals. In his view, bringing back some of the same individuals without explaining what had changed created constitutional concerns relating to accountability and transparency.
The judge rejected claims that the exercise amounted to a routine Cabinet reshuffle. He drew a distinction between the constitutional provisions dealing with dismissal and those relating to reassignment, saying the two processes are legally different.
For that reason, he concluded that Cabinet Secretaries who had been dismissed could not lawfully be returned to office immediately after their removal.
Despite his disagreement with the majority on the broad-based government and the reappointment of some Cabinet Secretaries, Justice Ngaah agreed that the Cabinet does not comply with the constitutional requirement on gender balance.
He concurred with his colleagues that the current Cabinet falls short of the rule requiring that no more than two-thirds of members of an appointive body be of the same gender.
His dissenting opinion formed part of the final judgment in which the majority of the three-judge bench dismissed the petitions and upheld the legality of the Cabinet appointments made after the 2024 demonstrations.