By Andrew Kariuki

A five-judge bench of the High Court has unanimously declared unconstitutional and quashed the advisory issued by former Chief Justice David Maraga recommending the dissolution of Parliament over its failure to implement the constitutional two-thirds gender rule.

In a landmark judgment delivered on Friday, 5 June 2026, the bench comprising Justices Joel Ngugi, Lawrence Mugambi, Jairus Ngaah, Tabitha Wanyama and a retired judge sitting on the panel held that Maraga’s September 21, 2020 advisory to the President was unconstitutional, null and void.

The petition had been filed by Leina Konchellah and Mohsen Abdul Munasar, who challenged the legality of the advisory issued by the then Chief Justice after Parliament failed to enact legislation giving effect to the two-thirds gender principle.

While overturning the advisory, the judges clarified that Parliament’s constitutional obligation to enact legislation implementing the gender rule remains alive and enforceable.

The court held that a previous order directing Parliament and the Attorney General to take steps towards enacting the required legislation continues to bind both the current and future Parliaments until compliance is achieved.

“The order binds the current Parliament that was in session when it was issued and continues to bind any subsequent Parliament, including the current one,” the judges stated.

The bench further directed that the order may still be transmitted to the Attorney General and Parliament by the Registrar of the High Court, triggering the timelines previously set by the court for compliance.

However, the judges found that the Chief Justice’s advisory recommending dissolution of Parliament was issued prematurely and could not stand in law.

Consequently, the court issued an order of certiorari quashing the advisory and an order of prohibition barring the State from implementing or enforcing it.

“The Chief Justice advisory dated September 21, 2020 is declared unconstitutional, null and void. It is hereby quashed,” the court ruled.

The judges also prohibited the Republic of Kenya from taking any steps to enforce the advisory.

Despite setting aside the advisory, the court emphasized that the constitutional requirement for gender representation remains a binding obligation that Parliament must eventually fulfill through legislation.

Given the public interest nature of the proceedings, the court directed that each party bear its own costs.

The ruling brings to an end a legal challenge that has been pending since 2020 and provides fresh guidance on the enforcement of the two-thirds gender principle, one of the longest-standing constitutional implementation issues in Kenya.