On Thursday, May 13, the high court ruled that the Constitutional Amendment Bill 2020 was unconstitutional effectively 'stopping reggae'.
The five-judge bench consisting of Justices Teresia Matheka, Joel Ngugi, George Odunga, Jairus Ngaah, and Chacha Mwita pointed out that a number of illegalities within the bill made it null and void.
The Judiciary has been at loggerheads with the Executive for the past years with their disagreements playing out in public over certain issues. Here are a number of rulings that have not worked in favor of Kenyatta's government.
1. Annulling President Kenyatta's Presidential Win
Arguably the biggest blow dealt by the Judiciary to the president was the annulment of his 2017 election victory.
The then Justice David Maraga-led bench stated that IEBC did not conduct free and fair elections and ordered for a fresh presidential poll in 60 days.
At the time of nullification, the President warned “we shall revisit” this problem with the Judiciary."
2. Stopping mandatory Huduma Namba registration
In 2019, when the government planned the rollout of the mass Huduma Namba registration, the High Court that the exercise was no longer compulsory.
During the highly anticipated ruling, the court also suspended the deadline date that had been initially set by the government.
In addition, the 3-judge bench ruled that the collection of DNA and GPS coordinates was suspended from the exercise.
However, the court went on to allow the government to proceed with the NIIMS process which President Uhuru Kenyatta officially launched in Machakos county in April 2019.
3. Stopping Lamu Coal plant construction
The proposed Ksh200 billion Lamu Coal-Fired Power Plant ran into headwinds in 2018 following a ruling by the High Court in Nairobi reinstating all automatic stay orders issued for projects challenged at the National Environmental Tribunal (NET).
The ruling stopped the planned construction of the 1,050 MW Power Plant. The case was filed by activist Okiya Omtatah and Katiba Institute.
The president had lauded the project as paying a key role in improving Kenya's energy production with 935 acres in Kwasasi, Lamu West have already been set aside for the controversial project that attracted local and international protests.
4. Stopping closure of Refugee camps in 2017
The government's announcement to close the Dadaab refugee camp was met with resistance from human rights bodies in 2017.
In his ruling in 2017, Justice John Mativo stated it was wrong to issue a blanket condemnation punishing all refugees back.
In 2021, the government tried to close down the refugee camps. The government would later make a deal with UNHCR to have the closure of the camps finalised by June 2022.
The Interior CS further noted that the affected individuals had the option of being repatriated or would get free work permits to continue living in Kenya.
5. Court declares Nairobi County takeover by NMS unlawful
The handover of functions to the Nairobi Metropolitan Services (NMS) which occurred in 2020 took place but with a lot of difficulties.
The president wanted the then-Governor Mike Sonko to sign over vital functions to the National government through NMS.
Upon signing of the deal, the High Court would later declare the Deed of Transfer of Functions executed between the National Government and Nairobi City County Government as vague and irregular.
Justice Hellen Wasilwa ruled that the deal signed at State House in February 2020, was not approved by the County Assembly, therefore, making it unlawful.
The court further declared the transfer of 6,000 county employees and secondment of CEOs to the Nairobi Metropolitan Services (NMS) as irregular and illegal since the Governor of Nairobi, Mike Sonko was not consulted.
6. Kenya court suspends government’s media shutdown
The events after the contested 2017 elections forced the government to shut down NTV, Citizen TV and KTN which aired the swearing of ODM leader Raila Odinga as the people's president.
The Interior Ministry justified shutting down the stations explaining that broadcasting the ceremony amounted to a “serious breach of security”.
Following the action, the media houses moved to court and had the order suspended.
The government would later restore the signals for the stations to continue their broadcasts.
7. Suspension of Key Parts of Cyber Law
In 2018, Kenyatta signed into law the Computer Misuse and Cybercrimes Act which he noted would protect Kenyans and ensure the security and safety of the country’s communications network.
However, upon an appeal in court over infringed on freedom of expression, High Court Judge Chacha Mwita suspended 26 sections of the act.
Petitioners argued that the Act would "deny, violate, infringe and threaten various rights and fundamental freedoms in the Bill of Rights in a manner that is not justified under Article 24."
8. Suspension of Executive Order
In July 2020, President Kenyatta issued an Executive order which placed independent constitutional bodies under the direct control of the Attorney General and Cabinet Secretaries.
The Executive Order dated May 11, 2020, would have seen tribunals and independent offices lose their independence and be subjected to respective departments and ministries.
The High Court issued a ruling suspending the order which would have seen over 20 commissions affected.
29 created by President Uhuru Kenyatta have been declared illegal.
9. Uhuru's CAS Positions Declared Unconstitutional
High Court Judge Antony Mrima, in a ruling on Tuesday, April 20, termed Chief Administrative Secretary (CAS) positions as unconstitutional noting that the law was not followed while they were being created.
The posts, occupied by some influential leaders including Rachel Shebesh, Mercy Mwangangi and Ababu Namwamba, were created by Uhuru in 2018.
In his ruling, Mrima also noted that Cabinet Secretaries who continued to serve without undergoing vetting in 2017 are in office illegally.
