Otieno & another v Governor of Hoма-bay County & 13 others

JUDGMENT 1. The Petitioners challenge the nomination, vetting, approval and appointment of members of the Homa Bay County Executive Committee by the 1st, 2nd and 3rd Respondents. They contend that the process culminating in the reconstitution of the County Executive Committee violated the Constitution and the Public Appointments (County Assemblies Approval) Act, 2017. They state that on 20th March 2026 the 1st and 2nd Respondents published notices in the Daily Nation and the Standard newspapers regarding the vetting of nominees for appointment to various County Executive Committee positions. According to the Petitioners, the notices did not comply with sections 7(4) and 7(5) of the Public Appointments (County Assemblies Approval) Act, 2017 because the required notices were not published in at least two newspapers of national circulation and did not give the public the statutory minimum period before the approval hearings. The Petitioners further aver that the Governor reconstituted the County Executive Committee with eleven members comprising nine men and two women, thereby breaching the two-thirds gender principle under Article 27(8) of the Constitution. They argue that the County Executive Committee is an appointive state organ whose composition must comply with Articles 27(8) and 179 of the Constitution and section 35 of the County Governments Act. They also contend that the appointments failed to adequately consider armative action, representation of women, youth, persons with disabilities, minorities and marginalized groups, and the community and cultural diversity of Homa Bay County. The Petitioners maintain that the County Assembly failed to discharge its constitutional and statutory oversight role by approving nominees despite the alleged non-compliance with the Constitution and the County Governments Act. They assert that both the Governor and the County Assembly were under a constitutional duty to uphold, defend and respect the Constitution and to ensure that appointments complied with the two-thirds gender rule and other principles of equality and non-discrimination. On that basis, the Petitioners allege violations of Articles 10, 27, 28, 54(2), 55, 179, 232 and 259 of the Constitution, section 35 of the County Governments Act, and sections 7 and 8 of the Public Appointments (County Assemblies Approval) Act, 2017. They seek declarations that the appointments were unconstitutional and unlawful, orders quashing any gazette notices giving eect to the appointments, and orders compelling the Respondents to undertake a lawful appointment process that complies with the Constitution and the applicable statutes. 2. In opposition to the Petition, the Respondents and the Interested Parties led a replying adavit sworn by Mr. Danish Onyango the Deputy Governor nominee. He contends that the Petition is premature, misconceived, incompetent and an abuse of the court process. He maintains that this court lacks jurisdiction because the dispute arises from the constitutional and statutory process for lling a vacancy in the oce of the Deputy Governor. They state that the oce of Deputy Governor became vacant on 27th February 2026 following the resignation of Mr. Joseph Magwanga the former Deputy Governor to concentrate on his Gubernatorial ambitions. Pursuant to Article 182(4) of the Constitution and section 32D of the County Governments Act, the Governor was required to nominate a replacement within fourteen days. They aver that, through an Executive Order dated 16th March 2026, the Governor nominated the 1st Interested Party for appointment as Deputy Governor and also nominated two persons for appointment as County Executive Committee Members, thereby complying with the statutory timelines. The Respondents further contend that the 1st Interested Party was subsequently nominated by the ODM Party and cleared by the Independent Electoral and Boundaries Commission in accordance with the applicable electoral framework. They maintain that the nomination and approval process is governed by the Constitution, the County Governments https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2202/eng@2026-07-30 2

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Act and the Public Appointments (County Assemblies Approval) Act, 2017. They assert that the County Assembly conducted the vetting process lawfully, transparently and fairly. According to the 1st Interested Party, he received adequate notice of the vetting hearing, appeared before the relevant committee, participated fully in the proceedings, and raised no objection regarding the notice or the conduct of the process. They further state that a memorandum lodged through the Interface Community Help Desk, whose chairperson is the 1st Petitioner, was duly received, considered by the committee and addressed during the vetting proceedings. The Respondents also argue that the Petitioners failed to exhaust the statutory mechanism under section 7(10) of the Public Appointments (County Assemblies Approval) Act, 2017, which permits members of the public to submit sworn objections during the approval process. In their view, the Petition amounts to forum shopping and seeks to interrupt a constitutionally prescribed and time-bound appointment process before the County Assembly has completed its mandate. Finally, urge the court to dismiss or strike out the petition. 3. The Petition was canvassed by way of written submissions Petitioners’ Submissions 4. The Petitioners identify the following issues for determination; 1. Whether the court has jurisdiction; 2. Whether they are entitled to the orders sought for in the Petition; 3. Whether Articles 28(3) and 179(3) of the Constitution were violated; and 4. Whether the composition of the County Executive Committee violates the Constitution and section 35 of the County Governments Act. 5. On the rst issue, The Petitioners submit that this Court has jurisdiction under Article 162(2) (a) of the Constitution and section 12 of the Employment and Labour Relations Court Act because the dispute concerns recruitment and appointment to public oce. They argue that disputes relating to the employment of public ocers fall within the exclusive jurisdiction of the Employment and Labour Relations Court. They rely on Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others, [2012] eKLR, for the principle that jurisdiction ows from the Constitution or legislation and must be determined at the outset. They also rely on Richard Bwogo Birir v Narok County Government & 2 others [2014] eKLR, where the Court held that disputes concerning public ocers and public appointments fall within the jurisdiction of the Employment and Labour Relations Court. 6. On the second issue, the Petitioners submit that Article 23 of the Constitution empowers the Court to grant appropriate relief, including conservatory orders, to enforce and protect constitutional rights and freedoms. They contend that the Respondents failed to comply with Articles 3 and 10 of the Constitution and the mandatory requirements of sections 7(4) and 7(5) of the Public Appointments (County Assemblies Approval) Act, 2017 during the vetting and approval process. They argue that the impugned advertisements and appointments constitute administrative action aecting the rights and interests of the public and therefore violate Article 47 of the Constitution. They further submit that the process undermined the constitutional requirement for inclusion of persons with disabilities under Article 54(2) and warrants judicial intervention. In support of the supremacy of the Constitution, the Petitioners rely on William Odhiambo Ramogi & 3 others v Attorney General & others [2018] https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2202/eng@2026-07-30 3

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KEHC 9718 (KLR), where the Court armed that any act or omission inconsistent with the Constitution is invalid. 7. On the third issue, The Petitioners submit that the Governor reconstituted the County Executive Committee with a composition that failed to comply with the two-thirds gender principle under Article 27(8) of the Constitution. They argue that the County Executive Committee is an appointive state organ whose composition must comply with Articles 27(8) and 179 of the Constitution. They contend that Article 27(8) imposes an immediate constitutional obligation to ensure that not more than two-thirds of the members of an appointive body are of the same gender. They therefore submit that the Respondents acted unconstitutionally by constituting and approving a County Executive Committee that failed to meet that standard. 8. On the fourth issue, the Petitioners submit that section 35 of the County Governments Act requires the Governor to ensure gender balance, representation of minorities and marginalized groups, and community and cultural diversity when nominating County Executive Committee Members, and prohibits the County Assembly from approving nominations that do not meet those requirements. They further argue that the 2nd Interested Party would hold two public oces simultaneously, contrary to section 35(4) of the County Governments Act and Article 77(1) of the Constitution. The Petitioners rely on Kenya Youth Parliament & 2 others v Attorney General [2012] eKLR, where the High Court held that courts should nullify appointments made in violation of the Constitution. They also rely on In the Matter of the Principle of Gender Representation in the National Assembly and the Senate, Advisory Opinion No. 2 of 2012, in which Chief Justice Dr. Willy Mutunga stated that the two-thirds gender principle is a constitutional requirement that should be realised immediately. They therefore urge the Court to allow the petition with costs. 1st and 4th Respondents’ Submissions 9. 10. The 1st and 4th Respondents identify the following issues for determination: 1. Whether the Petition meets the threshold of a properly instituted constitutional petition; 2. Whether the Petition invokes the principle of constitutional avoidance; 3. Whether the Court has jurisdiction; 4. Whether the Petitioners are guilty of material non-disclosure and have approached the Court with unclean hands; 5. Whether the Respondents disregarded the two-thirds gender principle; 6. Whether the Respondents complied with the Public Appointments (County Assemblies Approval) Act, 2017; 7. Whether the Petitioners exhausted the available internal dispute resolution mechanisms; and 8. Who should bear the costs On the rst issue, the 1st and 4th Respondents and the Interested Parties submit that the petition does not satisfy the constitutional pleading threshold because it cites numerous constitutional provisions without demonstrating with precision how each provision was violated. They argue that the petition contains broad and unsubstantiated allegations and fails to establish a nexus between the alleged facts and the constitutional violations complained of. They rely on Anarita Karimi Njeru v Republic [1979] https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2202/eng@2026-07-30 4

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KLR 154, Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR, and Consumer Federation of Kenya (COFEK) v Toyota Motors Corporation & 4 others [2022] eKLR for the principle that a constitutional petition must plead constitutional violations with reasonable precision and be supported by evidence. 11. On the second issue, the 1st and 4th Respondents submit that the dispute should not be determined as a constitutional petition because the issues raised can be resolved under the statutory framework governing nomination and approval of county ocials. They contend that constitutional adjudication should be reserved for cases where no adequate alternative remedy exists. They rely on Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] eKLR, S v Mhlungu 1995 (3) SA 867 (CC), Uhuru Muigai Kenyatta v Nairobi Star Publications Ltd [2013] eKLR, and Peter O. Ngoge v Francis Ole Kaparo & 4 others [2007] eKLR to support the doctrine of constitutional avoidance. 12. On jurisdiction they submit that this court lacks the same because the dispute concerns the constitutionality of the nomination, vetting and approval process for the Deputy Governor and County Executive Committee Members, which falls within the jurisdiction of the High Court under Article 165(3)(d) of the Constitution. They further argue that the oce of Deputy Governor is an elective constitutional oce and any challenge to the nomination process should be brought through an election petition before the appropriate electoral court. They rely on Josiah Kipelian Ole Kores v Dr David Ole Nkedienye & 3 others [2013] eKLR for the proposition that disputes relating to the oce of Deputy Governor are election-related disputes. 13. On the Petitioners being guilty of material non-disclosure, the Respondents submit that the Petitioners failed to disclose that the Deputy Governor nomination had already been completed, ODM had issued a nomination letter, the IEBC had gazetted the nominee, and the vetting of all nominees had already taken place before the conservatory orders were issued. They further contend that the Petitioners failed to disclose that they had participated in the vetting process by submitting a memorandum through the Interface Community Help Desk. 14. On whether the two-thirds gender rule was disregarded, the Respondent submits that the allegation of non-compliance with Article 27(8) is factually incorrect. They argue that the County Executive Committee currently comprises female representation through the Governor and three female County Executive Committee Members, thereby satisfying the constitutional gender threshold. They also contend that the appointment process remains ongoing and that vacant positions may further aect the nal composition of the County Executive Committee. In the alternative, they submit that the two-thirds gender principle is subject to progressive implementation. They rely on Federation of Women Lawyers of Kenya (FIDA-K) v Attorney General & another [2011] eKLR and Marilyn Muthoni Kamuru & 2 others v Attorney General & another, [2016] eKLR, for the proposition that implementation of the gender principle may be progressive. 15. On compliance with the Public Appointments Act, they submit that the Governor complied with section 32D of the County Governments Act by nominating a Deputy Governor within the statutory fourteen-day period following the vacancy. They further submit that the County Assembly published notices in both the Daily Nation and The Standard on 20th March 2026 and conducted the approval hearing on 26th March 2026, thereby complying with sections 7, 8 and 9 of the Public Appointments (County Assemblies Approval) Act, 2017 and Article 185 of the Constitution. Accordingly, they contend that the nomination and vetting process complied with all constitutional and statutory requirements. 16. On the exhaustion doctrine, they submit that the petition is premature because the Petitioners failed to invoke the statutory objection mechanism under section 7(10) of the Public Appointments (County https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2202/eng@2026-07-30 5

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Assemblies Approval) Act, 2017, which allows members of the public to submit sworn objections before approval of nominees. They argue that the Petitioners bypassed the County Assembly process and improperly invoked the Court’s jurisdiction before the approval process had been concluded. They rely on Georey Muthinja Kabiru & another v Samuel Munga Henry & 1756 others [2015] eKLR and Republic v National Environment Management Authority [2011] eKLR for the principle that where a statute provides a dispute resolution mechanism, it must be exhausted before resort to the courts. 17. On costs they submit that costs should follow the event and that the Petitioners should bear the costs of the proceedings because they instituted the petition without exhausting the statutory mechanisms and thereby compelled the Respondents to defend an unmeritorious claim. They rely on Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, [2014] KESC 31 (KLR), on the general principle that costs ordinarily follow the event. Accordingly, they urge the court to dismiss the application with costs. 2nd and 3rd Respondents’ Submissions 18. On their part they identify the following issues for determination: 1. Whether the issues raised in the petition fall within the constitutional jurisdiction of this Court; 2. Whether the Petitioners have established a violation of the Constitution or the Public Appointments (County Assemblies Approval) Act; 3. Whether the Petitioners have misapprehended sections 7(4) and 7(5) of the Public Appointments (County Assemblies Approval) Act; 4. Whether the Petitioners have demonstrated any prejudice or constitutional injury; 5. Whether the reliefs sought are available; and 6. Who should bear the costs of the petition 19. On jurisdiction, the 2nd and 3rd Respondents submit that although the Employment and Labour Relations Court may interpret and apply the Constitution, it may only do so in matters falling within its jurisdiction under Article 162(2)(a) of the Constitution and section 12 of the Employment and Labour Relations Court Act. They argue that the petition challenges the legality of legislative proceedings, public participation, publication of notices, and the County Assembly’s approval process, rather than any employment relationship, labour dispute, recruitment dispute, or workplace controversy. They contend that the petition seeks to impugn the County Assembly’s constitutional and statutory approval mandate, which falls within the constitutional and supervisory jurisdiction of the High Court under Articles 165(3)(d) and 165(6) of the Constitution. They rely on United States International University (USIU) v Attorney General [2012] eKLR and Republic v Karisa Chengo & 2 others [2017] eKLR for the principle that the Employment and Labour Relations Court is a specialised court whose jurisdiction is conned to employment and labour relations matters. 20. On whether the Petitioners have established a violation of the Constitution or the Public Appointments (County Assemblies Approval) Act, they submit that the Petitioners’ allegation of non-compliance with sections 7(4) and 7(5) of the Public Appointments (County Assemblies Approval) Act is factually incorrect. They argue that the County Assembly published notices in national newspapers, notied the public of the approval hearings, invited memoranda on the suitability of the nominees, and conducted the vetting proceedings publicly. They contend that section 7(5) requires public notication of approval hearings and that the evidence before the Court demonstrates substantial compliance with that obligation. They further argue that the purpose of the statutory provisions is to facilitate https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2202/eng@2026-07-30 6

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transparency and public participation, which was achieved in the present case. They rely on Doctors for Life International v Speaker of the National Assembly & others and Robert N. Gakuru & others v Governor Kiambu County & 3 others [2014] eKLR for the proposition that the constitutional requirement is to provide a reasonable opportunity for public participation rather than procedural perfection. They also rely on Michael Kojo Otieno & another v Lameck Otieno Ogot & 3 others; Ethics and Anti-Corruption Commission (Interested Party) [2021] eKLR for the principle that procedural irregularities that occasion no prejudice do not invalidate a public appointment process. 21. On the Petitioners’ misapprehension of section 7(4) and 7(5) of the Public Appointments (County Assemblies Approval) Act, the 2nd and 3rd Respondents submit that the Petitioners have fundamentally misconstrued the statutory framework by treating sections 7(4) and 7(5) as imposing a single obligation. They argue that section 7(4) concerns notication of the nominee for purposes of procedural fairness, while section 7(5) concerns notication of the public to facilitate participation in the approval process. They contend that the two provisions serve distinct constitutional objectives and must be interpreted harmoniously. They rely on Speaker of the Senate & another v Attorney General & 4 others [2013] eKLR and In the Matter of the Kenya National Human Rights Commission [2014] eKLR for the principle that constitutional and statutory provisions must be interpreted purposively and in a manner that gives eect to every provision. 22. On the fourth issue, The Respondents submit that the Petitioners have failed to demonstrate any actual prejudice, constitutional injury, or infringement of rights arising from the approval process. They argue that the Petitioners have not shown that any nominee lacked notice, was denied an opportunity to appear before the Committee, or was otherwise prejudiced. They further submit that the Petitioners have not identied any member of the public who was excluded from participation, denied access to the proceedings, or prevented from submitting a memorandum. They therefore contend that the alleged procedural shortcomings remain speculative and unsupported by evidence. They rely on Anarita Karimi Njeru v Republic [1979] KLR 154 and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR for the principle that a constitutional petitioner must plead and prove constitutional violations with precision and demonstrate a clear nexus between the alleged breach and the facts relied upon. 23. On the availability of the reliefs sought, they submit that the Petitioners have not established any constitutional violation, statutory breach, or demonstrable prejudice capable of warranting declaratory or consequential relief. They argue that declaratory relief is discretionary and should not be granted where the evidence demonstrates substantial compliance with the Constitution and the applicable statutory framework. They therefore urge the Court to decline the invitation to invalidate the approval process on the basis of alleged procedural deciencies that neither occasioned prejudice nor undermined constitutional values. 24. On costs they submit that they should be borne by the Petitioners because they have compelled them to defend a lawful constitutional and statutory process against allegations that have not been substantiated. They therefore urge the Court to dismiss the Petition with costs. Disposition 25. The Petition seeks the resolution of the dispute framed as the failure by the County Assembly of Homa-Bay and Governor to take legislative and other measures to implement the principle that not more than two thirds of the members of the elective or appointive bodies shall be of the same gender contrary to Articles 27(8) and 179(3)(b) of the Constitution of Kenya 2010. Additionally, it is asserted there is a breach of the Fair Administrative Actions Act and the Public Appointments (County https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2202/eng@2026-07-30 7

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Assembly Approval) Act. In order to allow ventilation of the matter, conservatory orders were issued halting the appointments and this is the determination on the Petition proper. 26. There is objection that this Court lacks jurisdiction to determine the appointments of the CEC Members inter alia. The 2nd and 3rd Respondents assert this Court lacks jurisdiction as do the Interested Parties. The 2nd and 3rd Respondents at rst ush seem to be supportive of the Petition but the end of the 2nd and 3rd Respondents’ submissions indicate they would wish the Petition to be dismissed for raising objections to a lawful constitutional and statutory process by making allegations that have not been substantiated. They urge the dismissal of the Petition with costs. 27. The Court has considered the authorities cited and the law in coming to this determination. There will be no need to have an exposition of all the cited cases and the ratio in each. However, where necessary specic dicta in some stated cases will be discussed. 28. The thrust of the petition is the two thirds gender rule which nds let in Article 81(b) of the Constitution of Kenya which provides as follows: “ Not more than two-thirds of the members of elective public bodies shall be of the same gender.” 29. This is the underpinning of the Petition before me. Despite arguments to the contrary, the Petition raises a weighty constitutional question. The mere fact there is an impact on other statutes does not dilute the import and character of the Petition. I decline the invitation to discard the Petition on the argument that it does not meet the constitutional threshold for determination of the question on the two thirds gender rule. The main arguments by the Petitioners is that the Respondents have failed to ensure there is proper application of the two-thirds gender rule. 30. In the decision cited by the Petitioners being the Supreme Court advisory opinion in, In the Matter of the Principle of Gender Representation in the National Assembly and the Senate (Advisory Opinions Application 2 of 2012) [2012] KESC 5 (KLR) (Constitutional and Human Rights) (11 December 2012) (Advisory Opinion) (with dissent - WM Mutunga, CJ & P), the Petitioners cited the decision of CJ Mutunga. In the decision the Chief Justice Emeritus of the Republic stated that the two-thirds gender principle is a constitutional requirement that should be realised immediately. The Petitioners forgot the highlight of the decision was by the majority of the bench which was by the Supreme Court Judges PK Tunoi, JB Ojwang, SC Wanjala, N Ndungu SCJJ concurring. The 4 Judges of the Supreme Court rendered a binding opinion. In answer to the question as to what constitutes the “progressive realization of a right?”, the Supreme Court held thus at para 49-56 thereof: E. Progressive Realization Of A Right 49. The concept of “progressive realization” is not a legal term; it emanates from the word “progress,” dened in the Concise Oxford English Dictionary as “a gradual movement or development towards a destination.” Progressive realization, therefore, connotes a phased-out attainment of an identied goal. The expression gained currency with the adoption of the Universal Declaration of Human Rights in 1948 – and this landmark international instrument stepped up the growth of the “human rights movement,” worldwide. The legal milestones in this development were later marked by other instruments: such as the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Political Rights (ICESCR). Such instruments introduced a set of expressions that has become part of the standard language of international human rights jurisprudence. Such language https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2202/eng@2026-07-30 8

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entails no technicality, but is simply concerned to prescribe the extent of a State’s obligation in the realization of rights embodied in the human rights Conventions. 50. Article 3 of the ICCPR states that:“The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.”On the same lines, Article 2 of the ICESCR thus states:“Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.” 51. Article 3 of the Convention on the Elimination of All forms of Discrimination Against Women, 1981 (CEDAW) states that:“States Parties shall take in all elds, in particular in political, social, economic and cultural elds, all appropriate measures, including legislation, to ensure the full development and advancement of women, for purposes of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on the basis of equality with men.” 52. It is clear to us that the Constitution of Kenya, 2010 which generously adopts such language of the international human rights instruments, draws inspiration from them. 53. We believe that the expression “progressive realization” is neither a stand-alone nor a technical phrase. It simply refers to the gradual or phased-out attainment of a goal – a human rights goal which by its very nature, cannot be achieved on its own, unless rst, a certain set of supportive measures are taken by the State. The Exact shape of such measures will vary, depending on the nature of the right in question, as well as the prevailing social, economic, cultural and political environment. Such supportive measures may involve legislative, policy or programme initiatives including armative action. 54. Certain provisions of the Constitution of Kenya have to be perceived in the context of such variable ground-situations, and of such open texture in the scope for necessary public actions. A consideration of dierent Constitutions shows that they are often written in dierent styles and modes of expression. Some Constitutions are highly legalistic and minimalist, as regards express safeguards and public commitment. But the Kenyan Constitution fuses this approach with declarations of general principles and statements of policy. Such principles or policy declarations signify a value system, an ethos, a culture, or a political environment within which the citizens aspire to conduct their aairs and to interact among themselves and with their public institutions. Where a Constitution takes such a fused form in its terms, we believe, a Court of law ought to keep an open mind while interpreting its provisions. In such circumstances, we are inclined in favour of an interpretation that contributes to the development of both the prescribed norm and the declared principle or policy; and care should be taken not to substitute one for the other. In our opinion, a norm of the kind in question herein, should be interpreted in such a manner as to contribute to the enhancement and delineation of the relevant principle, while a principle should be so interpreted as to contribute to the clarication of the content and elements of the norm. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2202/eng@2026-07-30 9

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55. It is on the basis of the foregoing principles, that we will consider the genderequity question under the Constitution. The Constitution has prescribed certain gender minima to be met in both elective and appointive public bodies. These quotas are to be seen as a genre of armative-action programmes, aimed at redressing the social aberrations and injustices of the past. Thus, membership of certain Constitutional Commissions is subject to certain gender prescriptions. It is provided as regards the Judicial Service Commission Article 171(2), that membership shall consist of:“...... (d)one High Court judge and one magistrate, one a woman and one a man...(f)two advocates, one a woman and one a man...(h)one woman and one man to represent the public interest....” 56. The foregoing example demonstrates that, so far as the Judicial Service Commission is concerned, it is for certain that the gender-equity rule of one-third-to-two-thirds is immediately realizable. The normative prescription is clear, and readily enforceable; the required numbers of male and female members are specied, and the mechanism of bringing them to oce clearly dened. 31. Similarly, in the case of the County of Homa Bay, the statutes do not give a precise formula on how the two thirds gender rule will be achieved. This is therefore an arena where there would be a degree of uidity in the achievement of the two thirds gender rule. The legislature has made provision for the appointment of special interest groups. At Homa Bay County, the Governor is of the female gender, the incoming Deputy Governor is of the male gender. I see nothing wrong with the appointment of the Deputy Governor as he qualies in the paradigm of two thirds gender rule since the appointment is neither deemed discriminatory or not in keeping with the provisions of Article 8 of the Constitution of the Republic of Kenya. 32. The Public Appointments (County Assemblies Approval) Act, section 7(4) and 7(5) thereof relate to joint obligations imposed on the County Assembly in the process of the approval of appointment. It is evident there is misconstruing of the sections by the Petitioners. A reading of the law shows that section 7(4) relates to the notication of the nominee for purposes of procedural fairness. On the other hand, section 7(5) relates to the notication of the public to facilitate participation in the approval process. These two provisions serve distinct constitutional objectives and must be read as such. On one hand, they impose an obligation to give the appointee an opportunity to be notied of the process and on the other provide for public participation. There is no evidence placed before the Court that there was exclusion of any of the nominees in the process nor is there any evidence that there was exclusion of the public in the public participation aspect of the appointments. There was heavy weather made of the provisions of the law relating to the advertisement calling for public comments. It is evident there was compliance with the law in relation with the public participation element of the appointment and approval process. On 20th March 2026 the 1st and 2nd Respondents published notices in the Daily Nation and the Standard newspapers regarding the vetting of nominees for appointment to various County Executive Committee positions. This was in keeping with the law. 33. The Court returns on the question of the alleged breach of the Constitution of Kenya on the two thirds gender rule that there is no demonstrated breach in as far as the Petition goes. The foregoing is ample to show that there is no merit in the objections to the appointments made in Homa Bay. The nal result the Court nds that the Petition lacks merit and is for dismissal. The Petition is dismissed with costs. It is so ordered. DATED AND DELIVERED AT KISUMU THIS 30TH DAY OF JULY 2026 https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2202/eng@2026-07-30 10

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NZIOKI WA MAKAU, MCIARB. JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2202/eng@2026-07-30 11

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