The National Gender and Equality Commission has moved to court to stop the appointment of judge Isaac Lenaola to the Supreme Court.
However, the commission's attempt to stop the swearing-in of Justice Lenaola failed after High Court judge Joseph Onguto ruled he was not convinced by the grounds raised.
"I am satisfied the application is very urgent and direct that the respondents be served immediately.
"I am, however, not convinced to grant any temporary orders stopping the swearing-in," ruled Justice Onguto.
The Judicial Service Commission on Tuesday nominated Justice Lenaola to replace retired judge Philip Tunoi at the Supreme Court and forwarded his name to the President for appointment and swearing-in.
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The gender commission has accused JSC of failing to adhere to the two-thirds gender rule in the composition of the Supreme Court.
"By nominating a man as the seventh judge for the Supreme Court, the JSC acted unequally and failed to give equal opportunities to men and women.
"That decision violates the right of women and leads to a situation where women representation will be less than one-third," submitted the commission's chairperson Winfred Lichuma.
Through lawyer Sylvester Muli, the commission argued JSC unfairly treated women candidates interviewed for the position and disregarded an advisory opinion they gave in July that at least three women judges should sit at the Supreme Court.
Female candidates interviewed for the position were justices Roselyn Nambuye, Fatuma Sichale, Martha Koome, Agnes Murgor and Wanjiru Karanja. Others were lawyers Joyce Majiwa and Pamela Tutui.
Meanwhile, the Law Society of Kenya has welcomed the appointment of Lenaola.
LSK said Lenaola has a sober legal mind and will in no doubt help transform the Supreme Court's way of doing business.
"The Supreme Court shall now have among the finest jurists of our land in its composition; a matter of great excitement within the legal fraternity," said LSK President Isaac Okero.
"Save for the parliamentary scrutiny and affirmation of the nominee, which is expected to be concluded in due course, the apex court is practically reconstituted," said Mr Okero.
He added: "Once this happens, it shall be time for us to reconsider our laws to ensure that never again will the country have to endure any period without a CJ in office or without the apex court in operation."
