From controversial rulings to ignored court orders: Why Judiciary is under fire

Supreme Court in Nairobi. Chief Justice Martha Koome has been transferring judges from one station to another. [File, Standard] Kenya's Judiciary, once hailed as independent following the Supreme Court's historic nullification of a presidential election in 2017, now finds itself under sustained assault from an Executive branch determined to bend the third arm of government to its will. President William Ruto has labelled court rulings that frustrate his agenda as "judicial overreach" creating a public narrative that judges who rule against the government are enemies of development. This rhetoric has been accompanied by more subtle forms of pressure. Judges who deliver adverse rulings such as Justice Bahati Mwamuye-who in January 2026 nullified the appointment of 21 presidential advisors-have found themselves transferred from their stations. The erosion of judicial independence has also crept within the institutions meant to safeguard the Judiciary's integrity. In January, Isaac Ruto, the vice chairperson of the Judicial Service Commission (JSC) was photographed attending a ruling party meeting at State House alongside President Ruto. Perhaps most alarming is the executive's willingness to defy court orders. When the High Court blocked the deployment of Kenyan police to Haiti, the government proceeded with the deployment anyway, treating the court's ruling as a mere suggestion rather than a binding constitutional directive. Similarly, despite multiple court orders declaring aspects of the housing levy unlawful, the Kenya Revenue Authority continued deductions. And sitting at the helm of the Judiciary's fall into ruins is Chief Justice Martha Koome. Under her watch, magistrates are decrying poor work conditions and heavy workload. She has also been involved in the transfer of a judge from one station to another, typically framed as a routine administrative exercise. However, evidence and public records suggest that for some judicial officers, the timing of their transfer has been anything but routine. On August 8, 2023, the Judiciary announced the transfer of 13 High Court judges. The list of names told a different story to keen observers. It read like a roll call of judges who had delivered verdicts that frustrated the policies of the Executive. No transfer in that reshuffle attracted as much attention as that of Justice Mugure Thande who was moved from the Constitutional and Human Rights Division at Milimani Law Courts in Nairobi to the Malindi High Court. Justice Thande had become the face of Judicial bravery. In July 2023, she had halted the implementation of the Finance Act, 2023. In her ruling, she issued a conservatory orders stopping the government from collecting taxes under the new law, stating there was a risk of the public being subjected to an unconstitutional law. She then referred the petitions to the Chief Justice for the appointment of a three-judge bench. Eight months earlier, in November 2022, Thande halted the Cabinet's decision to lift a ten-year ban on the importation and cultivation of genetically modified organisms. This suspension was later upheld by a three-judge bench in May 2023, effectively locking GMOs out of Kenya's food supply chain. In March 2022, in a rare move that demonstrated her commitment to constitutional principles over institutional hierarchies, Thande had overruled the Supreme Court itself. The apex court had sought to bar litigants and advocates from commenting on presidential election petitions, but Justice Thande declared that the Supreme Court had usurped the law-making role of Parliament, defending the freedom of expression against judicial overreach from the very highest court in the land. It was this history of judicial fearlessness that made her transfer to Malindi the most scrutinised move in the 2023 reshuffle, a move that many saw as a message to other judges who might be tempted to follow her example. Taking over Thande's former position as Presiding Judge of the Constitutional and Human Rights Division was Justice Chacha Mwita. He was moved from the Commercial and Tax Division to take over the division, a move that was technically a promotion but whose timing raised eyebrows. On January 26, 2024, Justice Mwita presided over a petition challenging the deployment of Kenyan police officers to Haiti and issued a ruling blocking the deployment. He stated that such an action was unconstitutional under the current legal framework. Just weeks before his transfer was announced, on July 28, 2023, Justice Mwita had also delivered a significant ruling declaring that Parliament has no role in vetting members of the Judicial Service Commission. The transfer of Justices Aleem Visram and Hedwig Ong'udi also came after they made a landmark decision. The two judges were part of a three-judge bench, alongside Justice James Wakiaga, that delivered a devastating blow to the Executive on July 7, 2023, by declaring the appointment of 50 Chief Administrative Secretaries unconstitutional. Following the ruling, Justice Visram was moved from the Milimani Civil Division to the Commercial and Tax Division, while Justice Ong'udi was transferred to Nakuru High Court as the Principal Judge. The late Justice David Majanja was moved from the Commercial and Tax Division to the Civil Division at the Milimani High Court but its timing was highly unusual. At the time of his transfer, Justice Majanja was leading the three-judge bench that had been constituted to hear the substantive challenges to the Finance Act 2023, the very same law that Justice Thande had temporarily halted weeks earlier. Under the watch of CJ Koome, the pattern of reshuffles has continued into 2026, when another judge whose rulings had consistently checked executive power, found himself packing his files for a new station. On February 23, 2026, Justice Mwamuye of the Constitutional and Human Rights Division was transferred to the Kiambu Law Courts. Justice Mwamuye's transfer brought to a close a tenure at Milimani marked by a series of rulings that had checked the Executive's powers, rulings that came in rapid succession in the months leading up to his transfer. On January 30, 2026, Justice Mwamuye declared the creation of 21 presidential advisor roles as unconstitutional, null, and void. Weeks earlier, on December 19, 2025, Justice Mwamuye had halted the implementation of a $1.6 billion Kenya-US Health Cooperation Framework, a flagship international agreement that had been witnessed by President Ruto in Washington. As legal scholar Patricia Buyeshe Angaya notes in an analysis for Kabarak University, the transfer of a judge who has heard a case for months or years can lead to significant delays. "When a judge is transferred before delivering a judgment, the succeeding magistrate or judge must often start the case anew-a principle known as de novo-or spend considerable time familiarising themselves with complex files. This results in delayed justice for litigants, who may have been waiting for years for a resolution," argues Buyeshe. The chronic case of corruption has also not been tamed under the watch of CJ Koome. Judiciary's fiercest critics, particularly lawyers Ahmednasir Abdullahi and Nelson Havi, have alleged corruption within the judiciary. Abdullahi has popularised the term 'JurisPesa', a phrase that has entered Kenya's legal lexicon as shorthand for bribery within the courts.

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