Petition to dissolve Parliament, Senate over gender rule forwarded to CJ Martha Koome

Chief Justice Martha Koome. (Photo: The Judiciary Kenya)

By Maureen Kinyanjui
Friday, July 18, 2025

The petitioners are seeking the dissolution of both the National Assembly and the Senate, as well as an order compelling political parties to comply with the gender principle during nominations.

A fresh petition demanding the dissolution of Parliament and the Senate over failure to implement the two-thirds gender rule has been referred to Chief Justice Martha Koome for possible empanelment of a constitutional bench.

The move follows a ruling by Justice Lawrence Mugambi, dated July 10, who found that the matter raises critical constitutional questions that go beyond the current Parliament and require determination by more than one judge.

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The petition was filed by Margaret Toili, Eddah Marete and Agnes Ndonji, who argue that the 13th Parliament, just like those before it, has breached the Constitution by failing to ensure that no more than two-thirds of members in elective public bodies are of the same gender.

They are seeking the dissolution of both the National Assembly and the Senate, as well as an order compelling political parties to comply with the gender principle during nominations.

While Justice Mugambi did not make a ruling on the core issues raised in the petition, he referred the matter to the Chief Justice under Article 165(4) of the Constitution, noting the need for judicial clarity on an issue that has persisted across multiple election cycles.

“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,” he said.

Speakers of both Houses, who are listed as respondents, had requested the court to consolidate the case with previous petitions filed between 2017 and 2020, which also challenged Parliament’s inaction on the gender rule.

They argued that the new case raises identical constitutional issues and that consolidation would ensure consistency in legal interpretation and outcomes.

However, the petitioners opposed the move, saying many of the earlier cases were linked to the now-defunct 12th Parliament and had already been dismissed or concluded, making them unsuitable to merge with a petition against the 13th Parliament.

Justice Mugambi agreed that the consolidation issue was outside his jurisdiction as a single judge and should be handled by a bench once empanelled. Still, he stressed the continuing constitutional relevance of the petition.

“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,” he said.

He emphasised that the constitutional obligation to observe the gender rule applies beyond a specific Parliament and is relevant in every election cycle, describing the issue as a recurring 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,” he ruled.

In their petition, the three are asking the Court to declare both Houses unconstitutional for violating Articles 27(3), 81(b) and 100 of the Constitution.

They also want the Registrar of Political Parties directed to ensure that all political parties observe the gender rule when nominating candidates in any fresh elections.