The Good, the Bad, and the Ugly: The Supreme Court of Kenya and the Unfinished Project of Feminist Jurisprudence

“In Kenya, law historically reinforced gender inequality through legal rules that validated social injustices leading to the marginalisation of women. Further, the legal system was an obstacle to changes required to remove the inequality in legal rules, procedures and institutions.” Professor Patricia Kameri-Mbote, Constitutions as Pathways to Gender Equality in Plural Legal Contexts (2018), p. 2

1 Abstract

The promulgation of Kenya’s 2010 Constitution marked a defining and transformative moment in the nation’s legal landscape, enshrining equality and non-discrimination as foundational, non-derogable principles. However, feminist jurisprudence emerges as a lens to scrutinize whether these provisions champion for genuine transformation or merely perpetuate a constitutional illusion. Beneath this progressive architecture of the 2010 constitution lies a deeper question, has the Constitution truly dismantled entrenched patriarchal structures or has it merely constitutionalised the appearance of reform while deeper structural inequalities remain intact? This paper interrogates the interplay between feminist theory and Kenyan Supreme Court jurisprudence, positing that while the Constitution equips potent mechanisms for substantive equality such as affirmative action under Article 27 and gender quotas in Article 81(b) these tools are frequently undermined by judicial formalism, cultural entrenchment and evidentiary burdens that disproportionately disadvantage women. Drawing upon liberal, radical, cultural and postcolonial feminist paradigms, the analysis dissects key constitutional provisions alongside landmark Supreme Court decisions including Ruth Wanjiku Kamande v Republic, Joseph Ombogi Ogentoto v Martha Bosibori Ogentoto (Petition 11 of 2020), In the Matter of the Principle of Gender Representation in the National Assembly and the Senate, FAAF v RFM & 2 others [2025] KESC 45 (KLR) and NGOs Co-ordination Board v EG & 5 others [2023] KESC 17 (KLR) This paper reveals a jurisprudence that is rhetorically progressive yet substantively illusory, oscillating between progressive ambitions and conservative retrenchment This paper proposes interstitial feminism as a framework for examining the gap between constitutional promises and judicial practice in Kenya. Drawing on radical feminist critique and postcolonial legal pluralism this paper suggests practical reforms: reversing evidentiary presumptions in matrimonial property disputes, introducing gender responsive judicial training in line with CEDAW General Recommendation No. 33 and legally recognizing cohabitation rights. In doing so, it aims to connect constitutional ideals with the lived realities of Kenyan women The connection between feminism and jurisprudence is sometimes treated with suspicion, as though it merely reflects the preferences of a particular political constituency.1 This paper takes a different view. It does not seek to construct a partisan account of law for the benefit of one group. Rather, it argues that, in Kenya, feminist engagement with jurisprudence is necessary if law, including the constitutional reasoning of the Supreme Court, is to be understood honestly and critically.2 Such an approach reveals how legal doctrine, judicial reasoning and institutional practice have often operated through assumptions that disadvantage women while presenting themselves as neutral. It also enables a closer interrogation of how the Supreme 1 Court, as the apex judicial body, has shaped, affirmed, or at times limited the meaning of equality, dignity and gender justice within Kenya’s constitutional order. At the same time, the article approaches feminism as a jurisprudential enterprise in its own right, one that raises serious questions about the nature of law, justice, equality and constitutional transformation in Kenya. The link between feminist jurisprudence and the Supreme Court of Kenya is especially significant because the Court has become one of the principal sites at which the Constitution’s promise of substantive equality is interpreted, limited and, at times, deepened. Through decisions on the two-thirds gender principle, matrimonial property, and most recently the treatment of battered woman syndrome in criminal law, the Court has been read more...