Court cases expose how brutal, scheming the state will go to defy the law

Morgan Heritage, a group of brothers, in their ‘Nothing to Smile About’ song, tells of a contrast of a country, one seen by outsiders as having everything nice and its people full of vibes.

They narrate that a visitor from Norway asked one of them why countless of their countrymen had furrowed faces.

The word stung and struck right to his heart; he looked to the sky, and tears fell. He opted to show the visitor around the gully side (marked by extreme poverty and poor living conditions) in Riverton City.

From hungry children, substandard educational facilities for ghetto youth, the dilapidated police station infrastructure, Peter Morgan, Una Morgan, Roy Morgan, Nakhamyah Morgan, Memmalatel Morgan, Kemar McGregor, Llamar Brown concluded, no, there was nothing to smile about.

This classic conscious root song speaks of a striking contrast between how outsiders see and the hardships and pains that the majority of the citizens endure.

16 years after the promulgation of the Constitution, the country is still dealing with murders and disappearances caused by the police, a tone-deaf Parliament, and a defiant Executive, being the litmus test of how badly or well we are progressing as a country.

We posed the question of how we are faring to different generations of lawyers and Constitutional experts. They all hailed Kenya’s supreme law as the most progressive document for the country.

“The current turmoil is not a breakdown; it is a catching-up. We wrote a social contract so bold and so visionary that we spent the last decade pretending it wasn’t real. Now, Kenya is beginning to align with what it promised itself. It’s not easy. Revolutions never are. But make no mistake – this discomfort was designed by the 2010 Constitution, which has 18 Chapters and each one is loaded,” said lawyer Abdullahi Khalif.

The lawyer insisted that the current law, as compared to the 1963 one, took away authoritarianism and instead flipped the tables in favour of the Wanjiku. Khalif said that the Gen-Zs protests were proof that Kenyans do not need politicians’ permission to enjoy their rights.

“The political class is shaken. They don’t realize the Constitution has been whispering to the youth. In school, they learn about the Bill of Rights. Online, they see court decisions live-streamed. Whenever the courts stood up to power, or a public official was vetted or impeached, every time a petition succeeded, the message seeped deeper: You have power,” he said.

Lawyer Paul Mwangi, in his response to The Standard, hailed the Judiciary for upholding the guarantees provided for in the Constitution. In his estimation, the third arm of the judiciary has aced the many questions put to it.

“ In terms of expanding the scope of rights and the upholding of the provisions in the Bill of rights, one has to grant credit to the judiciary for what, in my estimation, is an excellent performance. And this is not just because of where we are coming from. We are clearly in a new dispensation where rights are not granted. They are guaranteed,” said the former Prime Minister Raila Odinga’s lawyer.

During the protests, Bernard Kavuli, Jamil Longton, his brother Aslam Longton, Bob Njagi, Billy Mwangi, Peter Muteti, Gideon Kibet, Ronny Kiplangat, Maurice Wambua and Rajab Mohamed were among those abducted for participating in protests.

Today, they are in court, fighting for violation of their rights after the team appointed by President William Ruto to spearhead the compensation process removed their names.

In their case, they stated that the government had allocated Sh 2 billion for compensation. So far, according to them, Sh 1.12 billion has allegedly been disbursed. However, they said that the 35 victims who were listed as abductees have not been kept in the dark to-date.

They claimed that the authentication process is opaque, as no one can put a finger on anyone who has received compensation from the Kenya National Human Rights Commission (KNHRC) and the panel of experts on compensation of victims of human rights violations, including from demonstrations and protests.

“ The respondents have unlawfully introduced a superfluous ‘authentication process" as a precondition for compensating victims of torture and enforced disappearances, which process is ultra vires, unconstitutional, and in direct contravention of the Terms of Reference prescribed under Presidential Proclamation No. 1 of 2026,” their lawyer Abner Mango argued.

He said that Makau Mutua and the panel are acting beyond their prescribed scope by collecting, processing, and authenticating compensation claims outside the 1101 victims already verified by the KNHRC.

 According to him, the omission of persons who were abducted during Gen-Zs protests is not an administrative oversight but a calculated move to selectively implement the report by the human rights organization.

“ The respondents' conduct amounts to a flagrant breach of the doctrine of legitimate expectation, fair administrative action under Article 47 of the Constitution, and the principle of legality, as the respondents have arrogated to themselves powers expressly withheld by the Terms of Reference,” argued Mango.

Although the group lived to tell their stories and fight for their rights, Businessman Joel Kariuki, who allegedly disappeared on June 18, 2026 after being taken by armed men in civilian clothes; Michael Oloo, who went missing on June 19; youth leader Maxmillian Kiarie, who was last seen on June 20; and Abdulaziz Molu, who was reportedly picked up on June 23 are missing to-date. Their story is about a breach against their right to security, life, and to be produced before a court of law within 24 hours.

Lawyer Bobby Mkangi says that the assault against Katiba started in 2013. The former Commissioner in the nine-member Committee of Experts for Constitutional Review (CoE) further says that despite this, the Constitution’s smile moment is the pushback by all and sundry in its defence.

Unfortunately, he avers, some lost their lives in the process. The 29-year-old Rex-Masai, David Chege, Eric Shieni, Evans Kiratu, Beasley Kogi, Ibrahim Kamau, Kennedy Onyango, and Denzel Omondi were among the 127 martyrs of the controversial Finance Bill 2024 recorded by the Independent Police Oversight Authority (IPOA).

Today, their parents and kins are in tears. Some were killed by bullets paid for through taxes and used by trigger-happy police officers, but Mkangi said their blood will not perish as their names are engraved on the gilt edges of the Constitutionalism history.

“One of the few things to smile about Katiba's 'Sweet 16' is how, for the past sixteen years, Kenyans have come out strongly to reclaim and defend the constitution. This at great peril and despite the state's blatant and incessant assault of the document and its anti-Katiba posture, especially since 2013.”

“Most of all, the Youth of Kenya (Gen Z), of whom many lives, limbs and properties have been lost, deserve most glory during this season. This is because, when all seemed lost, they came out in large numbers on June 25th 2024, to reaffirm their constitutional sovereignty by metaphorically pulling the Katiba out of the jaws of hungry constitution-mauling sharks. To me, that day was the fresh promulgation of the Constitution of Kenya, 2010; one of the few things that conjure a smile,” said Mkangi.

Following the protests, several cases were filed, against police brutality, deployment of the Kenya Defence Forces and enforced disappearances.

The Law Society of Kenya (LSK) in its case argued that the decision by then Defence Ministry Cabinet Secretary Aden Duale to deploy military was illegal.

The lawyers lobby accused Duale of unilaterally calling the military personnel from the barracks without following the law. The Charles Kanjama-led society asserted that none of the protestors who are against the Finance Bill 2024 are armed.

It argued that there was nothing in the protests that would have been deemed as an emergency.

LSK lawyer Chrysostom Akhaabi argued that there is nowhere in the law that the military to support the police in responding to ‘an emergency.’

He claimed that Duale’s actions were fanciful or made up in order to execute a purpose that does not exist in the Kenyan law or the Constitution.

 Akhaabi also argued that the minister had no powers to declare a state of emergency. He stated that only the president could do so.

He said that no emergency, disaster, insecurity, unrest or instability, has been officially declared to exist in Kenya.

Hence, the court heard, there was no justifiable reason to deploy KDF to support the police.

“ There is no demonstration that the National Police who have the principal Constitutional mandate of maintaining law and order for civilians in the Country,  or any other civilian security agency or authority, have been overwhelmed or are  otherwise inadequate or incapable of dealing with any peaceful protests or any  surges of violence, unrest, destruction or breach of critical infrastructure which may  arise from the current peaceful demonstrations against the Finance Bill 2024 being witnessed,” argued Akhaabi.

While defending the gazette notice published by former Defence Cabinet Secretary Aden Duale (current Health CS), the AG argued that the purpose of having KDF in the streets was to deter crime.

The AG also argued that the issue of a state of emergency can be litigated only before the Supreme Court, not the High Court.

The council, on the other hand, attributed the protests in opposition to the government’s hard stand on the 2024 Finance Act to social media misinformation.

Major Mohammed Mwinyi, in his response before the court, argued that Article 241 (3) (B) and Section 31 of the Kenya Defence Forces Act allowed the disciplined forces to assist the police in emergencies and instances of public disorder.

He claimed that the military had been previously deployed in such instances.

Mwinyi attributed the protests to social media. He claimed that alleged misinformation fuelled youths to the streets with the intention of allegedly overturning the government.

“ The effects of such as action transcended mere disruption; it constituted the brazen attempt to subvert the will of the people and usurp the power legitimately bestowed upon the government through a democratic election.”

“ This unprecedented misinformation, weaponized through social media, aimed to dismantle the very foundations of our democratic system. The organizers shrouded in anonymity sought to incite a mob mentality, manipulating individuals into a state of unrest and potentially violent insurrection,” claimed Mwinyi.

According to him, on June 25, 2024, demonstrations started peacefully, but they escalated into alleged violence and destruction of property.

Although the deaths were attributed to police use of excess force, who killed unarmed civilians, while properties were burned by hired goons who infiltrated the protests, the senior military official heaped blame on social media, which he claimed had morphed into a breeding ground for unrest.

The officers twice in his reply claimed that anonymous persons were behind the protests.

“ The demonstration, fuelled by a torrent of disinformation disseminated via social media, was snowballing out of control. Malicious actors, operating with anonymity behind a veil of online disinformation that resonated with disaffected segments of the population. These fabricated narratives took root and flourished like a digital wildfire. Emboldened by this echo chamber, the demonstration organisers issued brazen threats via the same social media channels,” he claimed, adding that the threat to occupy State House on June 27, 2024 was out of swept-up emotional fervour, fuelled by a distorted online narrative.

“The potential consequences were dire,” added Mwinyi.

Michael Odongo’s daughter was not among the protestors. He too is in court, fighting for her right. She was shot in the stomach by a police officer while playing. In his case before the High Court, against the Inspector General of Police Douglas Kanja, the Attorney General Dorcas Oduor, the National Police Service Commission (NPSC), the Interior Cabinet Secretary Kipchumba Murkomen, the Director of Public Prosecutions Renson Ingonga and Kenya National Human Rights and Equality Commission explained that all was well for his daughter until around 6 pm when a bullet struck her on the stomach while playing.

Obonyo’s grievance is that a trigger-happy police officer aimed and fired a bullet towards his home. He said that although the day was marred by protests by Gen-Zs, he and the grade two student’s mother were at work.

Nevertheless, as the day progressed, protests intensified and became chaotic. “Police officers were seen and heard in broad daylight, firing gunshots severally, which posed a risk of causing grievous harm to innocent citizens,” he narrated, adding that when the bullet, which they initially thought was an object, hit her, the force had her fall from a bicycle she was riding on.

He stated that he did not suspect anything serious, but the girl was in pain.

“However, there was no immediate suspicion of a serious injury sustained by the petitioner

or the petitioner’s peers; however, the minor was writhing in pain, crying, and the domestic house help was called to the scene to carry and help her back to the house, which the house help did,” said Obonyo.

The court barred the officers from using excessive force and teargas during protests. Justice Bahati Mwamuye also ordered that the officers should not cover their faces.

Former Law Society of Kenya Eric Theuri told this paper that the Kenya Kwanza administration has done ‘a coup’ on the 2010 Constitution. He is of the view that goons are among some of the tell-tales of failure to adhere to the letter and the spirit of the Constitution.

He also cited arms of government and independent institutions as a reality against the law. Theuri averred that the capture has undermined the checks and balances created by the Constitution against excesses.

“I believe that the current government constitutes a present actual threat to the Constitution of Kenya. It has consistently proven that it considers itself above the Constitution. The state has sponsored and facilitated the use of goons as the primary weapon against political opponents and in the process elevated goons above law enforcement agencies. State-sponsored terrorism constitutes the gravest danger to the Constitution and the rule of law, without which we resort to anarchy.”

“The complete and total state capture of all constitutional oversight bodies has seriously undermined accountability and has crippled the constitutional architecture designed to enhance accountability in the execution of the Constitution by the three arms of government. The fact that Parliament has been severely compromised and the Judiciary rendered toothless through intimidation, budget cuts and corruption means that the Executive has conducted a coup on the Constitution and the Kenyan people,” said Theuri.

 

Right to health: (second part)

When Kenya Kwanza took over, it did away with the National Health Insurance Fund (NHIF) for its Social Health Authority (SHA). Today, the scheme, along with the Housing project, is being run based on temporary court orders issued by the Court of Appeal.

Their introduction and sustainability’s narrative are divided as heaven and earth. Those in government claim that they have been giving smiles to Kenyans while on the other hand, those against argue these were unnecessary, hurried burdens that Kenya Kwanza introduced.

The country’s health system took a major shift in 2023 when President William Ruto signed three laws, abolishing the previous National Health Insurance Fund (NHIF) and ushering in a new system that is now at the heart of political exchanges.

 The President assented to the Social Health Insurance Fund (SHIF) Act 2023, Primary Health Care Act, 2023, and Digital Health Act, 2023, in which he promised the country that no one ought to be denied healthcare, and the new Universal Healthcare Program would make fundraisers foot bills for the sick in hospitals.

However, the pet project could perhaps be the most litigated issue in the country, with teething questions being at the heart of it.

When the president signed his signature on the three laws, activist Joseph Enock Aura moved to court.

Initially, Justice Chacha Mwita ( now a Court of Appeal Judge) had halted the operation of the three laws; however, Court of Appeal Judges Kathurima M’inoti, Mumbi Ngugi and Francis Tuiyott lifted his orders, clearing the way for the project to proceed.

Back to the High Court, Aura told Justices Alfred Mabeya, Robert Limo and Freda Mugambi that Ruto’s administration’s move to overhaul the health care system was illegal, citing a lack of proper public participation and that the statutes had disparities.

In response, Former Cabinet Secretary for Health Susan Nakhumicha defended the Acts, saying they were meant to promote the implementation of the UHC and ensure that every person accessed the highest standard of healthcare. She added that members will contribute 2.75 per cent of their income to the SHIF, and the State was to pay for the citizens who are unable to pay.

The bench headed by Justice Mabeya quashed the three laws, after finding that the process was done in a hurry, and failed to factor in the critical involvement of the counties and had overlapped the counties’ role in the provision of healthcare.

The Judges faulted Parliament for enacting sections 26(5) and 27 of the SHIF Act on the basis that the two provisions infringed on the right to access emergency services.

They also questioned the enactment of section 38 of the SHIF Act, after finding that it was introduced during parliamentary debate and was not subjected to public participation.

The three Judges observed that although the government had a noble idea, it did not allow the input of the majority of Kenyans. The trio gave Parliament 120 days to regularize the process.

“The haste with which they were enacted infringed on the national values and principles of the Constitution. Since we appreciate the noble intention, we cannot disregard the clear constitutional tenets that bind us. Article 20 requires us to promote and protect the values that underlie an open and democratic society and the spirit, purport and objects of the Bill of Rights,” the bench headed by Justice Mabeya ruled.

The three said that by November 10, 2024, the three laws would be deemed moot if they were not sorted.

Immediately, the Health CS went to the Court of Appeal. Justices Patrick Kiage, Pauline Nyamweya and Ngenye Macharia suspended the judgment, arguing that countless Kenyans would be left without medical cover if the judgment was not suspended.

“ We are persuaded that the confusion, the lacuna and the risk and harm to citizens pending the hearing and determination of the appeal is a price too dear to pay, and it would have the effect of rendering the appeal nugatory,” the bench headed by Justice Kiage ruled.

 They ordered that the case should be fast-tracked as it involved immense public importance. This was on January 19, 2024. However, to-date, the appeal has not been heard yet.

The healthcare system debate did not end there. Four medical doctors challenged the constitutionality of the deductions remitted to the Social Health Authority (SHA).

 Dr Clarence Eboso, Dr. Darwin Abuka, Dr Cherono Siele, and Dr Bosibori Ondari argued that Kenyans are getting a raw deal while they pay a premium to the government.

Justice Mwita (now a Court of Appeal Judge) declined to issue any orders, saying that the case over the same was still lying active before the Court of Appeal.

He, however, ruled that said that the 2.75 per cent deduction from gross income is double taxation and, therefore, illegal.

According to the Judge, the law clearly states that only income tax is withheld from gross income; therefore, no other deductions can be made from an employee’s total earnings.

He asserted that any further deductions, after the payment of income tax, introduce an unlawful and harmful component that constitutes double taxation.

“ There can be no other gross income from which the person can again contribute 2.75 per cent to the Fund under SHIF and the regulations made thereunder. Any subsequent or other statutory deduction(s) based on the person’s gross income after income tax is undoubtedly double taxation, charge or levy because the same gross income will have been taxed more than once under the Income Tax Act and the regulations made under SHIA as contribution to the Fund,” said Justice Mwita.

“By providing that a person contributes 2.75 per cent of his/her gross income to the Fund after paying income tax from the same gross income, the regulation introduces a negative element of taxation which is double taxation and would, as a result, make such a regulation unlawful.”

They claimed that the involvement of Apeiro Limited, a company with links to Adani Group, in the Universal Health Care (UHC) system management is reason enough for Kenyans to worry about their data. They also claim that India is among the countries known for hacking and lack of data protection.

Apeiro holds the largest stake in a consortium that was awarded the Sh 104 billion deal to provide an Integrated Healthcare Technology System (IHTS) for the UHC program.

“The fact that the Ministry single-sourced a consortium of Health Information System providers to handle health data under the Social Health Authority, one partner of whom is originally registered in a jurisdiction with poor data privacy record, creates a real concern that safety of our personal data is not guaranteed,” the medics claimed.

According to them, the health scheme by the Kenya Kwanza government is inferior and expensive, they argued that Kenyans will pay more but will get lower premiums from the scheme.

“The regulations have provided tariffs where benefits drawn from the fund from contributions do not even nearly match the free market thereby compelling Kenyans to apply their private property in an inferior insurance cover,” the four medics claimed.

They argued that despite the High Court finding that the government had unfairly targeted employed people, it has not remedied the situation or devised a means to ensure that all pay is equitably distributed to all.

The four also argued that setting the rate to pay for SHA as a percentage of gross income amounts to double taxation as Pay As You Earn (PAYE) already taxes the gross income.

The court heard that those with pay slips will be hit harder than those who are either doing business or not employed.

“Salary is not necessarily the only source of income for all employed persons in Kenya; therefore, although the intention is to deduct the same percentage of a person’s income, employees who derive their income solely from salary would be hit harder by the provision,” they argued.

Dr. Cherono was the first to swear an affidavit in the case. She said she works as a pediatric registrar at Moi Teaching and Referral Hospital and is an employee of Kericho County.

She stated that she was an NHIF member and was getting the comprehensive civil servant medical cover.

According to her, the NHIF cover was enough to provide adequate cover to her and her family. “ I did not seek further insurance or seek out of pocket payments,” she said adding that it has so far sorted the family’s health needs.

However, she lamented that her household will now be required to pay SH 21,000 per month for SHA. In total, according to her, they will pay Sh 252,000 which is 10 times what she was initially paying for NHIF.

The doctor narrated that previously, she was not required to pay anything for medication. However, according to her, the family will be required to cough Sh 9000 monthly for medicines and lab tests.

“This is because Social Health Insurance Fund (SHIF) will only cover my household at Sh 43000 per household per year when my monthly cost of treatment averages Sh 9500 per month,” said Cherono.

She was of the view that it beats logic to have a cover that offers less than those in the private sector but is more expensive. She stated that for Sh 250,000 one would get a comprehensive insurance cover with an international level cover even for those with re-existing conditions in the private sector.

However, High Court Judge Bahati Mwamuye contradicted Justices Mabeya, Meoli and Mugambi after finding that the law establishing SHIF was constitutional. However, he said that rolling out the system on October 1, 2024, before ironing out all the administrative system and technology, fell below the constitutional standards. He directed that the government should sort out the problems and submit a progress report.

Even before his ink could dry on paper, Employment and Labour Relations Court Judge Jemimah Wanza ordered SHA not to block Kenyan employees whose deductions have not been remitted by the 9th day deadline.

In the case, Dr. Lawrence Mweresa, Dr. Azhar Abdul and Dr. Clare Otwoko lamented that despite SHA charging interest on delayed payment, it did not have a refund process in case one paid out of pocket and failed to factor in emergency care.

 On the other hand, SHA CEO Dr Mwangangi argued that allowing persons who have not paid to be treated would prejudice those who have cleared. She said that the idea is based on a social solidarity concept; hence, all must pay or else it would lead to instability. She said by February this year, the SHA had allegedly disbursed Sh 120 billion.

The President and his team believe the scheme is working, just like a well-oiled engine.

 The biggest constitutional test was, however, the government’s dalliance with the United States of America’s idea to quarantine its citizens who are infected by Ebola in Kenyan soil. The High Court intervened, then found Health Cabinet Secretary Aden Duale in contempt, he denied it, but later, stories emerged that seven humanitarian aid workers with Samaritan's Purse were at the Nanyuki Airbase facility.

In 1994, an American writer and journalist, Phillip Gourevitch, wrote an epic book on the catastrophe that happened in Rwanda, which everyone knew about, was warned about, but did nothing until it blew up; it was too late.

It is this book, ‘We wish to inform you that tomorrow will be killed with our families’, that Katiba said in its High Court papers that the Kenya Kwanza administration was toying with by accepting President Donald Trump’s administration’s deal.

USA’s Secretary of State Marc Rubio publicly said that they would not allow anyone infected by Ebola to enter the country. He insisted that the move would help them avoid unnecessary problems caused by the highly contagious and deadly disease.

 It is for this reason that Katiba told the court that it was ironic for the Ministry of Health officials to accept a disease that would kill and cause problems to the public, owing to the government’s self-sacrifice to the USA.

The rights lobby group asserted that despite the World Health Organisation (WHO) warning that the disease emanating from Congo is a moving killer with no approved cure and with limited treatment options, Kenya Kwanza opted to risk Kenyans’ lives for a secret deal, which was unmasked by the New York Times, causing an uproar that prompted the Duale to admit in response.

“The Government of Kenya, through a secret agreement with the government of the United States of America, is about to open its borders to US citizens who have been affected by this deadly disease.”

“This level of constitutional carelessness and institutionalized defiance of the Constitution is a threat to our constitutional order. It is a demonstration of the executive arm of the government being derelict of its obligations. The Constitution requires the government to take precautionary measures to prevent its citizens from being exposed to deadly diseases,” the lobby group’s papers filed before the court by lawyer Joshua Malidzo yesterday read in part.

The Law Society of Kenya (LSK) and Fred Isaboke also challenged the deal. LSK’s lawyer, Jack Owino, said that the deal entailed putting up an initial capacity of 50 beds, expandable to 250.

“The threat to the constitutionally guaranteed rights to life, health, dignity and a clean and healthy environment is real, imminent and incapable of adequate remedy after the event. Time is of the essence,” argued Onyango.

Lawyers, Levy Munyeri and Lydia Gichuru, argued that Laikipia was in the dark about the deal and only learned about it from the media.

In his submissions, Munyeri said that despite the National Government putting up the high-risk facility in the county, the Joshua Wakahora-led government said that it was never consulted despite there being an existing inter-governmental consultation forum.

He added that the county was ill-prepared to deal with such a disease; hence, the facility should not have been put up in the area.

“Can the seat of power in Nairobi and extension in Washington sit and secretly decide on the lives of the people at Laikipia? The answer is absolutely no. The county government of Laikipia heard about Ebola, not through the Kenyan government but a foreign government. The government has a core obligation to consult and co-operate with the people of Laikipia before entering such an agreement,” argued Munyeri.

In response, Duale said he was allegedly simply taking precautionary measures by putting up quarantine facilities.

Lawyer Abdulrasul Mohamed said that the Ebola case was a litmus test for the government, and it failed, according to him.

“The Ebola case filed by Katiba Institute is one classic example of noncompliance on Constitutionalism. The Right to Health as a social right faced heightened threats from the relevant health Ministry,” said Mohamed.

Multiparty democracy (part 3): (Mongrel government)

Data from the Registrar of Political Parties today indicates that Kenya has at least 97 political parties.

However, at the centre of the cog is United Democratic Alliance (UDA), Jubilee Party, and Orange Democratic Movement (ODM).

 When President William Ruto was Kenya’s second in command, he accused his then boss, President Uhuru Kenyatta of running a mongrel of a government. In his speech on March 7, 2022, at the Chatham House in London, he argued the handshake between Uhuru and Raila killed the government structure. Ruto said that one could not understand if the government was in opposition or vice versa. This, he averred, destroyed accountability checks provided for in the Constitution. He too made his own mix and march following the formation of the broad-based government.

However, critics argue that the National Assembly Moses Wetangula’s decision on the majority and minority in Parliament was against multi-party democracy.

Lawyer Kibe Mungai represented Kenneth Njagi Njiru in court. He triumphed after High Court Judges Jairus Ngaah, Lawrence Mugambi and John Chigiti ruled that that the decision on who is the majority or minatory was decided at the ballot, making Azimio the majority party before the house.

Today, it is unclear who sits where, as ODM, which was a principal party in the opposition coalition is now in the government, drumming for the President’s second term.

The Judges observed that following the gazettement of the winners by the Independent Electoral and Boundaries Commission (IEBC) and the submission of the pre-election coalition agreements to then Registrar of Political Parties, Ann Nderitu (currently an Independent Electoral and Boundaries Commission (IEBC) commissioner), it was inescapable that Azimio was the majority in the lower house. They said that, therefore, the speaker’s alteration of the matrix in favour of his coalition party was unconstitutional and illegal.

According to the Judges, Wetang’ula wrote to Nderitu seeking for coalition agreements between the parties when a stalemate between Azimio and Kenya Kwanza arose. They observed that Nderitu submitted the documents, but Wetang’ula ruled that she had not produced the certified documents.

At the same time, Kimani alleged on the floor of the House that coalition agreements were signed in favour of Kenya Kwanza. The speaker declared that the ruling coalition was the majority owing to 14 MPs who had allegedly defected from Azimio writing to him.

Therefore, he concluded that Ichung’wa was the majority leader, Osoro was the majority whip, and nominated MP Sabina Chege was the deputy majority whip.

However, the court found that the move was unconstitutional as the speaker had in his ruling admitted that based on the IEBC gazette notices and the information from Nderitu, Azimio had the majority seats with 171 members while Kenya Kwanza had 165.

“Without this post-election agreement, the speaker had no basis to disregard the coalition agreements between parties in Kenya Kwanza and Azimio. He had no legal basis to rule that the parties had shifted from Azimio to Kenya Kwanza.

Ndetitu’s affidavit drowned Kenya Kwanza in court.

In her statement, Nderitu said that out of the 26 constituent parties forming Azimio, only one was legally removed.

“As at June 2023, the only party that has legally exited the coalition is the Devolution Empowerment Party. All the other parties as gazetted on April 14, 2022 remain constituent parties of the first interested party (Azimio),” said Nderitu.

At the same time, she told the court that she wrote to Ford Kenya requesting the party’s position on whether Wetang’ula was a leader.

In the letter, Nderitu stated that a public officer cannot hold office in a political party.

“ This office has been drawn to the concerns in the public domain, as annexed herein, with regard to the speaker of the National Assembly being the Ford Kenya Party Leader,”wrote Nderitu.

She said that the party responded through its lawyers, Millimo, Muthomi and Company Advocates, indicating no law prohibiting the speaker from holding a political party office.

The then registrar argued that the explanation was satisfactory.

Nevertheless, Kibe, who was Kenneth Njagi’s lawyer, argued that Wetang’ula cannot hold the office while still being a Ford Kenya member and a Kwanza Coalition principal.

Kibe was also representing lawyer Suyianka, Meshack Suba, Teddy Muturi, Amos Wanjala, Stephen Kihonge, Sophie Dola, Winnie Thuo, Victor Ng’ang’a, Simon L’koma, Caroline Mogaka and Francis Kenya. 

He said that the ruling coalition illegally took the majority seat through the Speaker’s ruling,

Kibe asserted that Wetang’ula had no power to rule over who the majority and minority were before the National Assembly. Instead, he said, the minority and majority position was sealed during the election.

“National Assembly had already asked the Registrar of Political Parties who was in which party. It was not in the powers of the National Assembly Speaker to alter the gazetted mandate of the people of Kenya,” argued Kibe.

At the same time, Kibe said that the speaker was of the view that Wetang’ula was partisan owing to him being a member of Kenya Kwanza.

He stated that IEBC had cleared that Azimio had 171 members while Kenya Kwanza had 165, making it the minority coalition.

 The lawyer told this paper that the current arrangement is a mockery of the Constitution. He asserted that it is impossible to oversight the Executive with Wetang’ula being a principal in Kenya Kwanza and a leader of Ford Kenya, while MPs who ought to be in opposition crossing the floor to the government side.

According to Kibe, the arrangement was not in the Constitution’s architecture.