I have previously on this column dealt with how the Court of Appeal recently in absolute opacity handled the Presidential Advisers Ruling that stayed the High Court decision by Justice Andrew Mwamuye that found the said offices unconstitutional. Today, I will deal with the broader question of how the Judiciary engages with government cases, I will limit myself to the question of the efficiency and speed of handling such cases and will not engage with the merit question for the reason that merit can only be assessed on each case.
There is a worrying trend where the Judiciary is glaringly effective only in cases where the government is the Appellant. In fact, I call it the judicial urgency per the standard of government and not the envisaged objective test in the rule of law.
Many legal practitioners and private litigants will agree with me that rarely will a matter filed under urgency be dealt with as such even if the grounds are clearly compelling. There is a growing attitude especially at the Magistracy all the way to the Court of Appeal where urgency means nothing. The repercussions are dire, many buildings have been demolished due to the inaction of the Judiciary, much land has been sold erroneously because a judicial officer somewhere did not engage with pleadings filed before them. The economic effect of a judiciary that socially stratifies litigants before it is unimaginable.
But then, here is the twist, one cannot begrudge, for instance, the Court of Appeal for taking four to six years in determining appeals as it does for the reasons known to us; human resource capacity challenges and case overload, amongst other challenges, stretching to funding infrastructure. In all these, the Judiciary has for some time now taken a trajectory where these challenges seem to be blurred when the government is a party to a suit.
We all recall when the High Court found that Speaker Moses Wetangula violated the law by holding onto the party leadership of Ford-Kenya while at the same time being the Speaker. The High Court decision that determined the majority leadership question in the National Assembly was delivered around February 7, 2025 by a three-judge bench. On March 21, 2025, the Court of Appeal issued a ruling on a stay application to that decision, slightly more than a month later.
This speed and effectiveness of the Judiciary and especially the self-regulated Court of Appeal is strange in the sense that regular practitioners in that court would confirm that it would be a miracle moment to have an appeal fast-tracked as such. This does not end with Wetangula’s ruling as I will soon demonstrate. What the court found in that ruling is immaterial for this piece, the turn around time for doing so is.
The three-judge bench in the Social Health Insurance Fund is another case of a very effective Court of Appeal, but only when moved by a government agency, either the National Assembly, the Attorney or the Office of the Director of Prosecutions and the Director of Criminal Investigations in criminal matters. In less than three months, the decision was already stayed.
The High Court decision was in July 2024 and the Court of Appeal gave a verdict on the application in September 2024. The National Government Constituencies Development Fund Act is another decision. The High Court decision was given in September 2024 and by February 2026, the Court of Appeal had rendered itself.
It is needless to extend the analysis for the point is open out there; simply in uncountable decisions does the Judiciary expedite only matters brought by the State. Of course, the Presidential Advisers Ruling is the marking scheme in this area, where the court was so much in a hurry that it did not even have time to serve notice of the date of ruling to all the parties in the suit and it also shortened the time to issue the ruling by almost a month.
I am not for a moment turning a blind eye to the fact that some of these cases are core to the general public life as the Finance Act decisions referred to. The point here is slightly different. No one can complain just because the Judiciary is being effective. All we have to call out is selective efficiency.
It is wrong when an urgent application, that let say involves a property being auctioned tomorrow, is given a date in Mid-May and no stay orders are issued. Sorry, I forgot to say that the said application gets directions after four waiting days. How can it be that the urgency of other litigants means nothing to our courts except when the government is involved?
At the magistracy, it's worse for criminal matters. The Office of the Director of Public Prosecutions today is the magistracy’s favourite. They get what they want and any time. The investigating officers will arrest a person for unlawful assembly, put him or her in for three days, present them in court and ask for 14 days to "complete investigations" and a magistrate will entertain the circus as part of "discretion".
I need not to say more, the crux is that if the Judiciary is to be efficient, let it be efficient for all litigants and act with urgency for all children of the Creator and not the 'more equal ones'.
