JUDGMENT
This appeal brings to the fore, the question of the interpretation of article 27 of the Constitution, and in particular the edict contained in article 27(8) which requires the State to take measures to “implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.” This principle is colloquially known as, “the two-thirds gender principle”.
In June, 2016, three (3) vacancies arose in the Supreme Court of Kenya - for the positions of Chief Justice, Deputy Chief Justice and Judge of the Supreme Court. The Judicial Service Commission, the 1st respondent herein, advertised and shortlisted candidates for these positions. After the recruitment process, the 1st respondent nominated for appointment His Lordship, the now Retired Chief Justice David Maraga, Her Ladyship, the Deputy Chief Justice Philomena Mwilu and His Lordship, the Hon Mr Justice Isaac Lenaola all of whom are named in this appeal as 5th, 6th and 4th res…