Supreme Court at 12: Legacy intact despite funding crisis and political turbulence

Supreme Court judges led by Chief Justice Martha Koome during the hearing of the 2022 presidential petition. [File, Standard]

As the Judiciary pulled through 2024, the year was marked by significant developments that demonstrate its strength and the hurdles it continues to face. 

From celebrating 12 years of the Supreme Court’s establishment as a cornerstone of Kenya’s constitutional framework to navigating complex political and social issues, the Judiciary has evolved, reinforcing its role in the nation’s legal and democratic journey.

The Supreme Court, established under the 2010 Constitution, has seen considerable progress. This year, to mark its 12th anniversary, the Apex Court hosted a conference themed “Reflecting and Introspecting on the Supreme Court of Kenya’s Jurisprudence,” between November 4 and 6. 

During this event, judges and legal scholars discussed key decisions and their impact on Kenya’s constitutional law. The Court evaluated its role in shaping Kenya’s democracy, with its decisions on election petitions, devolution and human rights being particularly notable.

Chief Justice Martha Koome, in her third year at the helm of the Judiciary, has overseen a period of remarkable growth and operational improvements. 

From enhancing case management systems to embracing digitalisation through e-filing and virtual hearings, the Supreme Court has adapted swiftly to technological advancements.

“Every case handled by the Court is a step towards ensuring our Constitution’s promises are realised for every Kenyan,” Koome remarked.

She said various institutions under the Judiciary are the anchors of the country’s democratic aspirations. “Our future lies in building strong and robust institutions that would serve as a catalyst for national development,” said Koome.

The CJ mentioned that the Supreme Court has played a role in shaping Kenya’s jurisprudence and social-political development while enforcing the core principles of democracy. “Through hearing and determining four presidential election petitions over the last three election cycles, the Court has set critical benchmarks for conducting free, fair, and transparent elections,” she said.

According to CJ Koome, the decisions made by the Supreme Court have not only been transformative in Kenya but have also attracted respect and citation across Africa and in Europe.

“The Supreme Court is a beacon of justice,” Koome said. “By ensuring the rule of law and promoting democratic principles, we safeguard the transformative promises of the 2010 Constitution.”

Deputy Chief Justice Philomena Mwilu said the increase in number of cases filed is evident from the Apex Court performance statistics.

Since its inception to August 2024, some 734 cases have been filed. This comprises presidential election petitions, advisory opinions, appeals from the Court of Appeal, appeals from tribunals established for the removal of judges, and various applications.

According to Mwilu, the Supreme Court has so far presided over 16 presidential election petitions; 3 petitions in 2013, 4 petitions in 2017 and 9 petitions in 2022.

She highlighted the Supreme Court’s consistency in meeting the timelines for presidential election petitions, even when faced with very short timeframes.

Justice Smokin Wanjala delivered a lecture at the Catholic University of East Africa on “Transformative Property Law,” while Deputy CJ Mwilu held a public lecture at Daystar University, Athi River Campus, on December 2, 2024, titled “Institutional Independence: Reflections on the Supreme Court’s Jurisprudence on Devolution, Constitutional Commissions, and Independent Offices.”

On December 3, 2024, Justice Isaac Lenaola engaged in a public lecture at Strathmore University on “Breathing Life into the Constitution.”

Justice Lenaola, one of the longest-serving judges, reflected on the role the Supreme Court has played in holding the government accountable.

Judicial independence

“We have been at the heart of ensuring that every Kenyan’s vote counts. Our role is to make sure that elections are not only free and fair but also credible,” he said, underscoring the Court’s responsibility in maintaining democratic values. 

From its inception in 2011, the Supreme Court has become an emblem of judicial independence, safeguarding the Constitution and ensuring the rule of law.  As the highest court in the land, the Supreme Court has dealt with significant cases that have shaped Kenya’s legal landscape, including presidential election petitions, constitutional issues on the Finance act 2023 and Housing levy, and high-profile impeachment cases, such as the one against former Nairobi Governor Mike Sonko.

The history of Kenya’s Judiciary, particularly the Supreme Court, is steeped in the country’s journey from pre-colonial justice systems to the present-day legal framework. 

President William Ruto and Lady Justice Martha Koome, the Chief Justice during the swearing-in of twenty Judges of the High Court and conferment of the Rank of Senior Counsel at State House on May 14, 2024. [PCS]

The roots of Kenya’s legal traditions can be traced back to indigenous justice systems that emphasized reconciliation and community involvement in dispute resolution.

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However, it was during the colonial era that the foundations of the modern Judiciary were laid, as the British legal system was introduced.

The establishment of the first High Court in Zanzibar in 1897 marked the beginning of a two-tier court system that would later evolve into Kenya’s current judicial structure.

The establishment of the Supreme Court was a pivotal moment in the history of Kenya’s legal system, providing a final arbiter on constitutional and national matters.

Prior to this, the highest court in Kenya was the Court of Appeal.

The Supreme Court was meant not only to review contentious legal issues but also to provide guidance on legal matters that were not clearly addressed by previous legislation or the lower courts. Its birth coincided with the country’s constitutional rebirth, following a period marked by political and legal instability. 

The modern Judiciary, however, has grown to reflect Kenya’s diverse cultures, histories, and traditions, with indigenous practices integrated into legal decision-making.

Since its creation, the Supreme Court has been led by distinguished Chief Justices. Former Chief Justice Evan Gicheru guided Kenya through the final years of its previous constitutional framework, followed by Chief Justice Willy Mutunga, who became the first Chief Justice under the new Constitution. 

The Court was inaugurated on August 26, 2011, with an esteemed first bench composed of retired CJ Willy Mutunga, Deputy Chief Justice Nancy Baraza, and Supreme Court Justices Jackton Ojwang, Mohamed Ibrahim, Charles Wanjala, and Njoki Ndung’u.

Mutunga, known for his reputation as a human rights advocate and reformist, was tasked with overseeing the formation of the newly established Supreme Court. 

Mutunga’s legacy was defined by his commitment to judicial independence and his bold decisions. Under his leadership, the Court upheld the election outcome in the 2013 presidential election petition despite immense political pressure, reinforcing its role as the ultimate arbiter of constitutional matters.

Mutunga’s successor, Chief Justice David Maraga, took office in 2016 and was faced with the challenge of maintaining the court’s integrity. His leadership reached its peak in 2017 when the Supreme Court became the first in the world to annul a presidential election.

The Court’s decision to declare the retired President Uhuru Kenyatta’s re-election invalid due to procedural irregularities, and call for fresh polls, was a historic moment that reinforced the Judiciary’s independence and supremacy of the Constitution.

Maraga’s tenure was marked by a strong commitment to judicial reform and the rule of law, elevating the Court’s role in Kenya’s democratic process. In 2021, Chief Justice Koome made history as Kenya’s first female Chief Justice, ushering in a new era of judicial leadership focused on reform, access to justice, and strengthening judicial independence.

Her tenure has been marked by efficiency, transparency, and improving access to justice for all Kenyans.

As the highest court in the land, the Supreme Court has dealt with a variety of significant cases that have defined its legacy over the 12 years.

One of the most notable cases was the series of presidential election petitions, including the 2022 petition challenging the election of President William Ruto.

The Supreme Court reaffirmed its commitment to constitutional principles by upholding the election results, despite contentious claims of irregularities.

The petition was filed by opposition parties who alleged irregularities in the electoral process.

Despite contentious claims of electoral malpractice, the Court managed to adhere to its constitutional mandate by delivering a judgment within the stipulated 14-day period, as outlined in Article 163 of the Constitution.

In a landmark decision, the Court upheld the presidential election results, citing the independence of the Independent Electoral and Boundaries Commission (IEBC) and reaffirming the Judiciary’s role in ensuring the democratic process is free and fair.

In each of Kenya’s post-2010 general elections, the Court has played a central role in adjudicating disputes over the election results. 

In addition to electoral matters, the Supreme Court has addressed a wide range of complex constitutional issues. A notable example is its ruling on the 2020 Building Bridges Initiative (BBI), where the Court determined that the President did not have the constitutional authority to initiate amendments to the Constitution through a popular initiative.

This landmark decision was crucial in defining the limits of executive power and reaffirming the principle of separation of powers within Kenya’s government. The Court has also handled high-profile impeachment cases, such as the one against former Nairobi Governor Mike Sonko. These cases underscored the Court’s role in upholding constitutional governance and ensuring that public officials are held accountable for their actions.

Another major case was a petition regarding the equitable distribution of funds between the national government and county governments. The petition, brought by a group of county governors, challenged the national government’s delay in disbursing funds to county governments, which was seen as a violation of the Constitution’s provision on devolution. 

The Supreme Court ruled in favor of the counties, ordering the national government to release the funds within a specified time frame and issuing a directive to ensure that the spirit of devolution is upheld. 

A general view of Supreme Court of Kenya on January 9, 2024. [Elvis Ogina, Standard]

In November 2021, the court delimited the role played by the Director of Public Prosecution (ODPP) and the Attorney General in extradition proceedings.  In particular, it held that the authority to initiate and conduct extradition proceedings before a court of law lies with the Director of Public Prosecutions as opposed to the Attorney General. In the 2017 criminal appeal case of Francis Muruatetu, the Supreme Court ruled that the mandatory death penalty for murder, as prescribed under Section 204 of the Penal Code, was unconstitutional.

The court declared that the automatic imposition of the death sentence violated the constitutional rights of individuals and was inconsistent with the principles of justice.

 Senate role

The Court’s landmark ruling on the registration of an NGO advocating for the rights of LGBTIQ+ individuals affirmed the constitutional right to freedom of association, prohibiting discrimination based on sexual orientation.

Throughout 2024, the Supreme Court continued to fulfill its constitutional mandate with landmark rulings. One of the most notable cases involved the constitutionality of the Finance Act 2024, particularly the housing levy, a government initiative aimed at funding affordable housing. 

Petitioners led by Busia senator Okiya Omtatah had argued that the levy, which required all employees to contribute, was unconstitutional. The Court ruled in favour of the government, affirming that the levy was within the bounds of the Constitution. 

Another significant ruling upheld the constitutionality of mandatory minimum sentences imposed by the Sexual Offences Act, balancing victim protection with the rights of the accused.

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The Supreme Court examined whether mandatory minimum sentences for sexual offences infringed on the constitutional right to a fair trial, ultimately upholding the law. 

This ruling was a significant victory for Director of Public Prosecutions, Renson Ingonga, as the Court upheld the constitutionality of mandatory sentences for sex offenders, reinforcing the Judiciary’s commitment to justice for victims of sexual crimes.

The year also saw important rulings on devolution and the relationship between the Senate and the National Assembly.

In a landmark case, the Court clarified the role of the Senate in the national budget-making process, confirming its constitutional authority to participate in decisions regarding the allocation of resources.

However, despite these impressive achievements, Judiciary operations are severely constrained by financial limitations.

On November 12, during the presentation of the State of the Judiciary and the Administration of Justice Report 2023/24, CJ Koome has decried inadequate funds allocated to the Judiciary every year, saying the underfunding limits its capacity to meet the demands of the institution.

She pointed out that the Judiciary continues to face funding challenges owing to historical chronic underfunding of the justice sector.

The Judiciary’s budget has consistently fallen short of its needs, with funding gaps often nearing 50 per cent.  “In the past financial year, we received only Sh22.42 billion, significantly below the required budget of Sh43.17 billion. This funding gap restricts our ability to expand infrastructure, enhance security, and support the wellness of our judicial personnel,” the CJ said.

This shortfall has placed a considerable strain on the judicial system, leading to overcrowded courtrooms, delays in case processing, and an increasing backlog of unresolved cases.

She called on the legislature and the executive to recognise the needs of the Judiciary and allocate additional resources necessary to support its optimal operation.

“This funding gap restricts our ability to realise the constitutional promise of social transformation through access to justice,” she said.