President William Ruto is under pressure to make major decisions about the future of his Cabinet after the High Court ruled that its current composition violates the Constitution's gender requirements, opening the door to a possible reshuffle, a legal appeal, or a fresh interpretation of who qualifies as a member of Cabinet.
The ruling has handed the President 120 days to bring the Cabinet into compliance with the two-thirds gender principle, creating a fresh challenge that touches on both constitutional obligations and political interests.
Any move to adjust the Cabinet could affect the delicate balance within the broad-based government that emerged following cooperation between Kenya Kwanza and ODM.
A three-judge bench found that the current Cabinet does not meet the requirements of Article 27(8) of the Constitution, which states that no more than two-thirds of members of appointive or elective bodies should be of the same gender.
The majority decision was delivered by Justices Eric Ogola and Stephen Githinji, while Justice Jairus Ngaah disagreed with the ruling.
The judges noted that out of the 22 Cabinet Secretaries currently serving, only six are women, leaving the Cabinet short of the constitutional threshold. Unless the decision is overturned, the President will be required to create room for at least two more women in Cabinet.
The ruling has sparked renewed debate over how the government intends to respond. While one option is to reorganise the Cabinet and appoint more women, another is to challenge the judgment before the Court of Appeal.
State House appears to be leaning toward a legal challenge based on the argument that Cabinet membership extends beyond Cabinet Secretaries.
According to a senior State House official, the six female Cabinet Secretaries should not be the only women considered when determining whether the Cabinet meets the gender requirement.
The women Cabinet Secretaries are Beatrice Asukul Moe, Hanna Wendot Cheptumo, Deborah Mulongo Barasa, Alice Wahome, Rebecca Miano and Roselinda Soipan Tuya.
The official argued that Attorney-General Dorcas Agik Oduor and Secretary to the Cabinet Mercy Kiiru Wanjau should also be counted because both are actively involved in Cabinet affairs and attend Cabinet meetings.
“This brings the women to eight, hence the reason to believe the Cabinet is properly constituted,” the source said.
“That’s my thinking because there are eight critical women who engage in Cabinet matters on a daily basis. The Attorney-General plays a very critical role in the Cabinet and she is a woman.
Therefore, you cannot ignore her membership of that Cabinet. This is a very unique composition.”
The position could form the foundation of an appeal if the government decides to challenge the judgment instead of changing the Cabinet's composition.
Under the Constitution, the Cabinet consists of the President, Deputy President, Attorney-General and Cabinet Secretaries. While the Attorney-General is formally part of Cabinet, the office is separate from the 22 Cabinet Secretary positions.
The Secretary to the Cabinet, whose office is established under Article 154 of the Constitution, attends Cabinet meetings but is not recognised as a Cabinet member under the Constitution.
Lawyer Chris Omore said the question of whether those offices can be included when applying the two-thirds gender principle may become one of the main issues before the Court of Appeal if the matter proceeds further.
“In the event of an appeal, whether those offices can be counted towards satisfying the two-thirds gender principle could become one of the key legal questions shaping the next phase of the dispute,” says advocate Chris Omore.
He adds: “If the government elects not to appeal—or loses on appeal—the President will have limited options, and the most obvious would be dismissing at least two male Cabinet Secretaries and replacing them with women. Another option would be to swap the Attorney-General and the Secretary to the Cabinet with two of their male counterparts, without dismissing serving Cabinet Secretaries. Expanding the Cabinet is not an option because Article 152 caps the number of Cabinet Secretaries at between 14 and 22."
The legal position means the President may be left with few alternatives if the court ruling remains in force. Any effort to increase the number of Cabinet Secretaries is barred by the Constitution, leaving replacement or reassignment as the main available options.
Analysts say the matter goes beyond numbers because the current Cabinet reflects political arrangements that were put in place after a period of national unrest.
Following the June 2024 Gen Z protests and the political understanding reached between President Ruto and the late ODM leader Raila Odinga, the President expanded his administration by bringing several senior ODM figures into government.
In July 2024, Hassan Joho was appointed Cabinet Secretary for Mining and the Blue Economy, while Wycliffe Oparanya took charge of the Co-operatives and MSME Development docket.
Former ODM national chairman John Mbadi was appointed Cabinet Secretary for the National Treasury and Economic Planning, Opiyo Wandayi became Cabinet Secretary for Energy and Petroleum, while Beatrice Asukul Moe was named Cabinet Secretary for East African Community, Arid and Semi-Arid Lands and Regional Development.
The appointments were widely viewed as strengthening the broad-based government arrangement and helping ease political tensions that had built up during months of public demonstrations and political uncertainty.
Two years later, those appointments have become part of the wider debate over how the President can comply with the court order without upsetting the political balance within government.
Although Siaya Senator Oburu Oginga assumed ODM leadership following the death of Raila Odinga in India on October 15 last year, questions remain about whether any ODM-linked Cabinet Secretaries could be affected if the President opts for a reshuffle.
Political analyst Dismas Mokua says removing some of the ODM-linked Cabinet Secretaries could disrupt the political understanding that has helped maintain cooperation between the United Democratic Alliance and ODM.
The analyst further notes that many of the ODM nominees hold key ministries, making any decision on who should leave Cabinet a difficult political calculation as the President weighs constitutional requirements against coalition interests and government stability.