Judge's order that could help end electoral violence in Kilifi

A quiet but remarkable development in Kenya’s constitutional story unfolded recently in a courtroom in Mombasa. In Republic v Rama Lenga Beja & 2 Others (HCCR 36 of 2017), Justice Kagendo Micheni delivered a judgment that did more than determine guilt or innocence. The case involved the death of Nicodemus Karima Shikahili in Kilifi South during the tense hours before the 2017 General Election. The accused persons were charged with murder. In the verdict, the prosecution could not prove beyond reasonable doubt who inflicted the fatal injuries. The court therefore acquitted the accused. That part of the judgment followed well-known criminal law principles. A court must convict only where the evidence proves guilt beyond reasonable doubt. In this case, the evidence did not meet that threshold.

But the most interesting part of the decision came after the acquittal. Micheni turned her attention to the deeper problem revealed by the case. The record showed that electoral violence had become a recurring feature in Kilifi South. Communities had formed informal vigilante groups to guard against attacks during elections. Political rivalry had divided villages. A peacekeeping initiative had turned into a confrontation. A young man lost his life. The judge asked a difficult question. If courts simply close the file after acquitting the accused, does the legal system truly address the root of such tragedies?

Her answer was bold. Instead of ending the matter with the acquittal, the judge issued directions aimed at preventing future electoral violence. She ordered state agencies and local actors to work together to establish structured and inclusive peace and security forums ahead of the next elections. The order involved the National Police Service, the Independent Electoral and Boundaries Commission, the National Cohesion and Integration Commission, civil society organisations, community policing structures, the Court Users Committee and the area Member of Parliament.

These actors were directed to develop lawful, coordinated and non-partisan security frameworks. The aim is simple; to prevent the cycle of election violence that has haunted the area. The court did something even more striking. It retained oversight of the process. Micheni directed that a status report on compliance be filed in court by September 30, 2026. This type of remedy is known in constitutional law as a structural interdict. A structural interdict is a supervisory order. The court does not merely issue a declaration or command and walk away. Instead, it keeps the matter under watch. State institutions must report back on the steps they have taken to implement the court’s directions.

Traditionally, structural interdicts are used more in cases involving socio-economic rights. Courts use them where problems are systemic and require coordinated action by several government institutions. In Kenya, the conversation about this remedy gained prominence after the famous Mitu-Bell Welfare Society case which explored how courts can supervise implementation of constitutional remedies. Micheni’s decision is remarkable because it moves this remedy into a new space.

The case before her was a criminal trial. It concerned the right to life, a right that the Constitution treats with the highest urgency. Criminal courts usually determine whether the accused committed the offence. Once that question is answered, the court’s task is complete. But the judge chose a broader approach. She recognised that the death occurred within a larger pattern of election-related violence. A purely technical judgment would not address that reality. The court therefore used its constitutional authority to encourage preventive action before the next electoral cycle. This approach reflects a new philosophy of judging that has emerged since the 2010 Constitution. Before 2010, Kenyan courts often followed a narrow and formal role. Judges interpreted statutes and resolved disputes brought before them. Their involvement ended once a decision was delivered.

Judges are now central actors in the project of constitutional transformation. Scholars frequently describe this as “transformative constitutionalism,” a vision in which legal institutions actively promote democratic values, equality and social change as former Chief Justice Mutunga argued times without number. In such a system, judges are not passive referees. They are guardians of constitutional promises. The court required the responsible institutions to engage each other and design lawful mechanisms for preventing violence in future elections. The requirement for a compliance report is particularly significant. The court expects to see concrete progress.

Such judicial supervision is increasingly recognised as an important tool for enforcing constitutional rights. Research on constitutional remedies shows that structural interdicts help bridge the gap between legal declarations and actual implementation. Seen in this light, the Kilifi case is more than a murder trial. It is a reflection of a judiciary learning to use its constitutional authority creatively. The court confronted a painful local reality. Electoral competition had repeatedly produced violence. Communities had taken security into their own hands. Lives were at risk. The good judge refused to treat the case as an isolated incident yet there is a clear pattern across the last elections. Kenya’s constitutional journey has often depended on courageous moments from its courts. It shows what a post-2010 constitutional judge can do. The judge resolves the dispute before her. But she also looks beyond the courtroom and asks how the law can help prevent the next tragedy. In Kilifi South, a life was lost on the eve of an election. Through this decision, the court is trying to ensure that the next election does not claim another.