Null and Void: List of Landmark Court Rulings that Shaped 2023

 

The Kenyan courts have, throughout the year, strived to assert their authority and independence while interacting with matters touching the other arms of government, especially the National Executive. High Court judges Eric Ogolla and Mugure Thande. Photo: Kenyan Judiciary. Source: Twitter The corridors of justice were avenues on which compatriots aggrieved by certain government policies sought redress. In several instances, the courts came up with daring rulings to bait the National Executive by invalidating certain laws and government appointments.For instance, President William Ruto and his deputy Rigathi Gachagua admonished the justice system for what they said was sabotage to their plans, for example, affordable housing. "Those people who are going to court to block us from undertaking the affordable housing project are the enemies of Kenya. I want to assure you that you gave me the powers, and I will deal with them. All I need is your prayers. I was already given the sword. Do you think it's for cutting vegetables? It's for dealing with all these criminals," he said in Kisii on December 16. TUKO.co.ke looks into the significant rulings that pricked those in power;  In March, the High Court in Nairobi barred Ruto's newly sworn-in Chief Administrative secretaries from assuming office. In her ruling, Lady Justice Hedwig Ong'udi stated that she was satisfied that the case was urgent and of public interest. She issued conservatory orders and granted a prayer in the petition filed by the Law Society of Kenya, challenging the CAS appointments. "Having read through the annexures, I am satisfied that interim conservatory orders are necessary. I, therefore, grant Prayer No. 2 of the Notice of Motion in the interim," she said. Alongside Katiba Institute, the LSK asked the court to restrain the 50 CASs from assuming office, earning a salary and enjoying any benefits coming with the position. The court ordered that the petition and notice of motion be served on all parties and the responses filed by Monday, March 27.  Ruto had awarded several loyalists with the CAS posts, which remain unoccupied. 2. Ruto's finance law halted by court The president suffered a setback in June after the High Court suspended the implementation of the Finance Act 2023. In the Friday, June 30 ruling, Justice Mugure Thande gave conservatory orders suspending the implementation of the law. She stated that the orders would remain in place until after the outcome of the mention set on July 5. "It is hereby ordered that the application be served today Friday, June 30 upon all parties, that responses be filed and served by Tuesday, July, that I am satisfied that the application meets the test for conservatory orders and I do grant prayers 2 and 3 of the application until Wednesday, July 5 when the matter is scheduled for mention for directions" read her orders at the time. The ruling was made following an application filed by litigious Busia senator Okiya Omtatah challenging the constitutionality of the bill that later became law. He sued Treasury Cabinet Secretary Njuguna Ndung'u and Attorney General Justin Muturi, with Kenya Revenue Authority (KRA) acting commissioner-general Rispah Simiyu listed as an interested party. According to Omtatah, sections of the Act threatened the right to property, access to justice and the Kenyan Constitution. The Court of Appeal would later lift the suspension of the Finance Act 2023 after a petition by the National Treasury Appeal. 3. 50 CAS posts are illegal, High Court In July, the High Court revoked the appointment of 50 chief administrative secretaries, terming it illegal. This followed the move by the Law Society of Kenya (LSK) and other interest groups to challenge the appointments at the Employment and Labour Relations Court. The High Court would later issue orders preventing the appointees from taking their offices. Judges Aleem Visram, Hedwig Ong'udi and Kanyi Kimondo ruled that there was a degree of reasonable public participation in the recruitment of 23 CASs. In Her Father's Land Still, there was no public involvement in the constitution of the 27 additional officeholders. "Accordingly, the newly created office and fresh complement of 50 had to comply with the constitution and the criteria set out earlier in Okiya Omtatah's case in order to be lawfully established. They did not comply," they said. Even though the ruling reserved the president's right to create government positions, he was expected to follow the law. The ruling also pointed out that the National Assembly did not vet the CASs, and the fact that they are assistant Cabinet Secretaries, they ought to have been grilled by the National Assembly. 4. New ID and citizen services charges halted In November, the High Court halted the implementation of the new charges and levies on identity card applications and replacements. A Kenyan, Magare Gikenyi, went to the corridors of justice to oppose the new directives and requested the court to put aside the gazette notice pending the hearing of his case. In his application, he says the said amounts were increased arbitrarily without any formula or public participation. He added that the charges would affect young Kenyans who were turning 18, hence making it difficult for them to get identity cards. This, in effect, would lead to an inability to get job opportunities. "That in the said gazette notices, the respondents increased charges in a "bottoms-up manner," capricious and arbitrary manner such that it's as high as 20 times of the original and also introduced charges for "Not Previous Registered(NPR)" from zero to KSh 1,000, children born outside fee of KSh 1,000,000 amount of which are arbitrary and out of reach of many ordinary citizens," said Gikenyi. The matter was filed under a certificate of urgency before Justice Lawrence Mugambi. Mugambi acknowledged that the application had been certified as urgent and would be heard on a priority basis."A conservatory order be and is hereby issued suspending Gazette Notices No. 15239-15242 dated November 6, 2023 and/or any other document purporting to give authority to increase or review the charges/fees/levies specified therein pending the hearing and determination of this Application inter-partes," Mugambi ruled in court papers seen by TUKO.co.ke. As per the revoked notice, losing a national identity card would see the owner paying KSh 2,000 for a duplicate or replacement; up from KSh 100. Applying for the ID card, which was initially free of charge, would see one parting with KSh 1,000. Changing particulars on an ID card would cost KSh 1,000, as before. Identification reports that used to cost KSh 300 would cost KSh 1,000. New passport application charges in Kenya Civil servant cards would cost KSh 1,000, up from KSh 100, and staff badges will cost KSh 1,000, up from KSh 350. Kenyans applying for passports would have to pay KSh 7,500 for a 34-page document; this used to cost KSh 4,500. A 50-page passport that used to cost KSh 6,000 would cost Kenyans KSh 9,5000. A Kenyan passport of 66 pages that used to cost KSh 7,500 would cost KSh 12,500, a whopping 5,000 hike. Diplomatic passports would cost upwards of KSh 15,000 under the new government directive. 5. Ruling against Housing Levy Still in November of 2023, the High Court quashed the Housing Levy borne in the 2023 Finance Act. A trio of judges termed the provision in the new finance law as unconstitutional, citing the lack of a comprehensive legal framework and its irrational nature. According to the judges, the Finance Act 2023, violated taxation principles, proving discriminatory and unfair by creating distinctions between the formal and informal sectors, ultimately rendering it unconstitutional due to its unequal and inequitable application.  "We find that the introduction of the housing levy, the amendment to section 4 lacks a comprehensive legal framework, in violation of article 10 201 2010 of the constitution. That levy against persons in formal employment to the exclusion of other non-formal income earners without justification is irrational and arbitrary and in violation of section 27 201 B1 of the constitution," the court said. The National Housing Development Fund happened to be the face of the controversial finance bill and later law as those against it claimed it could degenerate into a Ponzi scheme. The government was committed to providing affordable housing to low-income citizens who could not afford a mortgage to put up decent houses. According to the provision on housing, an employer was supposed to remit 3% of an employee's monthly basic salary to the Housing Fund, adding to the person's contribution, which is also 3% of their pay. The government denied that it would be a tax, instead christening it a savings plan with benefits accruing to the employee whose monies are chopped. The modality of the fund was unclear, with those concerned picking holes in the manner it was being sold to them. Among the issues the Doubting Thomases sought clarity on included how the kitty would be managed and the interest contributors would earn. The government had stated that employees who are not eligible for affordable housing, upon the expiry of seven years from the date of the start of making the contributions or after the attainment of retirement age, whichever is earlier, the employee may opt to transfer contributions to a retirement scheme or convert to pension. They also could transfer the contributions and benefits to another registered person of their choice. 

by  Kai Eli