Judiciary faces fresh test after defiant 2025 decisions against State

With High Court judges set to resume duties on Tuesday following the Christmas recess, focus is on how the Judiciary will carry forward the momentum of 2025.

Last year, courts witnessed  an unprecedented wave of constitutional petitions and rulings, covering Executive actions, legislative directives, school fees, eviction threats, and the protection of media freedoms and protestors’ human dignity.

Across the High Court’s Milimani, Kerugoya, Nyeri, Kisumu, and Environment and Land divisions, judges repeatedly reminded the State that no one, including the President, is above the Constitution or the law.

In courtroom after courtroom, petitioners, from Busia Senator Okiya Omtatah to Nakuru’s Magare Gikenyi, UK‑based activist Eliud Matindi, the Law Society of Kenya (LSK), Katiba Institute, and grassroots collectives, stood up against State action they perceived unlawful, illegal or unconstitutional.

The Judiciary, particularly Justices Chacha Mwita, Bahati Mwamuye, Lawrence Mugambi, John Chigiti, and other judges, delivered rulings that will shape Kenyan constitutional law for years to come.

The several decisions were made against the State, including a landmark ruling on mental health and human dignity.

Milimani High Court judge Lawrence Mugambi delivered one of the most consequential rights decisions by striking down Section 226 of the Penal Code, which criminalised attempted suicide, following a petition by the Kenya National Commission on Human Rights (KNCHR) and the Kenya Psychiatric Association.

The petitioners argued that criminalising suicide  violated Article 27 on equality and non-discrimination and Article 43 on the right to health.

Justice Mugambi held that treating mental health crises as criminal conduct endorses discrimination based on health status and entrenches stigma rather than care.

The courts repeatedly struck down President Ruto’s Executive actions as unconstitutional, including task forces on health audits and anti-corruption, climate council appointments made without public participation, the e-Citizen school fees directive, and a presidential compensation panel for protest victims.

In February last year, Justice Mwamuye declared unconstitutional President Ruto’s 20-member Presidential Task Force on Health Audit.

The court found that the task force unlawfully assumed functions reserved for the Kenya Human Resources Advisory Council, violating separation of powers.

In his judgment, Mwamuye faulted the Executive for bypassing existing legal frameworks, holding that constitutional mandates assigned to independent bodies cannot be reassigned through executive action.

“Where the Constitution or statute assigns a function to a specific institution, that mandate cannot be taken away or duplicated through an Executive order,” Mwamuye ruled, warning that such actions would undermine constitutional design and weaken institutional independence.

The court barred the task force, chaired by Prof Khama Rogo, from undertaking any action under the impugned Executive order.

In another ruling on public participation, the High Court dealt a major blow to the government’s bid to centralise school fees payments on the e-Citizen platform.

Justice Chacha Mwita struck down a government directive requiring school fees to be paid exclusively through the e-Citizen platform, accompanied by a Sh50 convenience fee.

The petition, filed by Dr Gikenyi and the LSK, challenged the directive for lacking legal authority and public consultation

Stamped authority

 “A government cannot impose new financial obligations on citizens without express legal authority and constitutional engagement,” Justice Mwita said.

The government’s attempt to suspend the ruling at the Court of Appeal failed.

In May, the High Court invalidated President Ruto’s appointments to the National Climate Change Council, ruling that the nomination process violated Article 10 of the Constitution on public participation.

 “There was no evidence that the public participation principle under Article 10 of the Constitution was complied with in the nomination process,” Justice Mugambi held.

Mugambi ordered the President to undertake a fresh nomination within 90 days in strict compliance with the Constitution and the Climate Change Act, warning that environmental governance must be transparent, inclusive, and accountable.

The High Court, however, stamped its authority when it repeatedly summoned top security officials, including Inspector General Douglas Kanja and the DCI boss Amin Mohammed, for failing to comply with court orders in several cases, including the high-profile disappearance of ICT expert Ndiangui Kinyagia.

The top security chiefs’ summonses followed a spate of disappearances and abductions witnessed across the country last year by persons believed to be police officers, where the Judiciary emphasized that court orders must be respected, whether authorities agree with them or not. 

In what will arguably be remembered as one of 2025’s most impactful years for the protection of political and civil rights, the High Court addressed several petitions concerning police conduct, protest management, and breaches of fundamental liberties.

Litigation by LSK, Kenya Editors Guild, Katiba Institute, among others, challenged police conduct and a Communications Authority of Kenya directive banning live media coverage of protests marking the 2024 anti-Finance Bill demonstrations and subsequent June 2025 demonstrations following the death of teacher and blogger Albert Omondi Ojwang while in police custody.

Thousands of citizens marched across the country, particularly Nairobi’s Central Business District (CBD), amid tear gas, heavy-handed policing, restrictions on assembly and arbitrary arrests.

The CA issued a directive banning live coverage of the protests, claiming violations of licensing conditions. Several media houses were switched off, sparking outrage from journalists and civil society.

The High Court swiftly intervened.

On June 27, Justice Mwamuye issued orders restricting the use of tear gas, water cannons, and similar devices against peaceful demonstrators, especially where medical care access for injured persons was hindered.

Mwamuye emphasised that, even in maintaining public order, force must be lawful, necessary, and proportionate, not reflexive.

On July 9, Mugambi blocked police from erecting roadblocks and barricades in Nairobi’s CBD, holding that such measures unjustifiably curtailed freedoms of assembly (Article 37) and movement (Article 41).

Mwamuye later declared the outright ban on protests in Nairobi’s CBD unconstitutional, awarding Sh2.2 million to eleven protesters, including Joy Awich and Kipngetich Eman, for police brutality.

In August, Justice Mwamuye further strengthened accountability by ordering that police managing protests must wear full uniforms with visible nametags or service numbers, banning plainclothes, and were strictly prohibited from concealing their faces using masks, or covert tactics.

 “The law requires accountability and transparency in policing; officers must be identifiable to ensure public trust and protect fundamental rights,” he emphasised.

The ruling followed a lawsuit filed by LSK and Florence Wairimu, a private citizen, prompted by incidents of police brutality, arbitrary arrests, and the death of protester Rex Masai in 2024 during the Gen Z anti-tax protests, all linked to officers whose identities were concealed.

Again, Justice John Chigiti quashed the media ban entirely, holding that live reporting is not incitement and regulatory powers cannot be used as tools of censorship.

 “Freedom of the press cannot be conditional on a power to silence real-time truth,” he ruled.

Conflict between executive power and constitutional mandates continued with protest compensation.

 In August, President Ruto gazetted a panel to spearhead efforts to compensate victims of demonstrations.

Levi Munyeri, a Nairobi lawyer, promptly moved to court to challenge operations of the panel, arguing it lacked clear constitutional authority.

In its decision, Kerugoya High Court judge Magare Dennis Kizito Ng’wono affirmed the constitutional and statutory mandate of the Kenya National Commission on Human Rights (KNCHR), not a presidentially appointed panel, as the body empowered to design reparation frameworks for victims of human‑rights violations arising from protests.

Despite repeated rulings, the President established the Presidential Multi-Agency Team on the War Against Corruption (MAT-WAC) to fight corruption.

Petitioners, including Gikenyi, challenged its constitutionality, citing duplication of Ethics and Anti-Corruption Commission (EACC) functions.

Justice Mwamuye issued conservatory orders suspending MAT‑WAC pending a full hearing expected to begin later this month.

Other constitutional battles remain pending, including housing rights, Executive authority, and major development projects.

Among these is Senator Omtatah’s challenge to the US–Kenya Health Cooperation Framework, a Sh208 billion deal temporarily halted by Justice Mwita over lack of parliamentary approval, public participation, and transparency.

In December, Mwita temporarily halted the entire agreement between President Ruto and the US government, including its personal medical data-sharing provisions, pending full hearings.

The case is now closely watched following US President Donald Trump’s directive to withdraw American support from 66 international organisations, raising questions about the future of the Kenya multi-billion deal and its implications for US bilateral and multilateral partnerships.

The Cybercrime Act also drew scrutiny for threatening freedom of expression, privacy, and digital rights, especially clauses on content regulation and criminal liability for “false information.”

Civil rights advocates, including Embakasi MP Babu Owino, Kirinyaga Women Rep Jeri Maina, gospel artist Reuben Kigame, Katiba Institute, and the LSK, warned the law could silence dissent.

High Court orders have suspended some sections of the Act, yet digital rights returned sharply into focus when, on Monday January 5, the DPP approved the prosecution of Atheist Society of Kenya president Harrison Nyende Mumia under the Act.

Mumia is accused of using a pseudo Facebook account under the name Robinson Kipruto Ngetich to post an AI-generated image of President Ruto dead. Mumia is currently remanded at Industrial Area Prison after  failing to raise a Sh1 million bond or Sh500,000 cash bail.  

His lawyer, Munyeri, has since published a paybill number appealing to Kenyans to help raise funds for his release, reigniting debate earlier in the week over the scope of cybercrime laws, freedom of expression, and the criminalisation of online speech.

Perhaps the most significant ruling stemmed from the lawsuit on the impeachment of Deputy President Rigathi Gachagua after the Court of Appeal overturned the High Court decision ruling that the Deputy Chief Justice has no mandate to empanel a bench.

The Court of Appeal ruled that, under Article 165(4) of the Constitution, only the Chief Justice has the express mandate to empanel and assign an uneven number of judges to hear matters raising substantial questions of law, even if she is a petitioner.

Chief Justice Martha Koome reappointed Justices Fred Ogolla, Anthony Mrima, and Frida Mugambi to hear 40 cases challenging Gachagua’s removal.

This brought to a close a long-disputed issue over bench assignments in high-profile cases.

It also addressed delays in hearing 10 petitions seeking dissolution of Parliament over failure to meet the one-third gender rule.

The cases to send all MPs home to pave the way for compliance with the gender rule are now before a five-judge bench, also expected to begin once judges resume.

The ruling on CJ’s mandate further paved the way for another politically charged 2025 conflict: attempts to remove Koome and all Supreme Court judges.

Multiple petitions were filed against the apex court, spearheaded by, among others, former LSK president Nelson Havi, Senior Counsel Ahmednasir Abdullahi, and former Cabinet Secretary Raphael Tuju and several others, each challenging the conduct or rulings of the judges in an apparent bid to oust them.

During the mounting pressure to oust the judges, the High Court moved swiftly and issued orders barring the Judicial Service Commission (JSC) from proceeding with the  petitions until seven consolidated cases are heard in February.

A three-judge bench also upheld the Court of Appeal decision that only the Chief Justice has the mandate to empanel judges in cases where she is a petitioner, allowing the ouster matters to proceed.

Weeks later, the High Court issued another ruling that has continued to spark controversy within the legal fraternity and triggered fresh uncertainty into efforts to remove judges, including Chief Justice Martha Koome, after barring the JSC from hearing or processing any petitions against judges until regulations under Section 47 of the Judicial Service Act are formally gazetted.

Justice Roselyne Aburili, presiding with Justices John Chigiti and Alexander Muteti, emphasized that, while the court did not examine the merits of the complaints, the absence of codified procedures made it unconstitutional for JSC to proceed.

One clear lesson from 2025 is that Kenyans are no longer silent witnesses to constitutional breaches, and the courts have asserted their role as the ultimate guardians of the Constitution.