Justice on trial: A to Z of Kenya's Supreme Court as it turns twelve

President William Ruto joined by Deputy President Kindiki, Prime Cabinet Secretary Musalia Mudavadi, Chief Justice Martha Koome, and Deputy Chief Justice Philomena Mwilu during the 12th anniversary celebration of the Supreme Court’s operation. [Daniel Kariuki, Standard]

It is now 12 years since the Supreme Court came to be. This is the A to Z about Kenya’s apex court. We take you through the journey, things that you know and some intriguing things that you perhaps did not know about the court.

A for auspicious occasion to reflect on achievements

Yesterday was an auspicious occasion for the Supreme Court to reflect on its 12 years of existence, its achievements and pitfalls and its future. Different speakers - President William Ruto, his deputy Kithure Kindiki, Chief Justice Martha Koome and Supreme Court Judge Njoki Ndung’u - said the apex court had made progress to reflect the wishes of Kenyans despite challenges and political dynamics. Ruto said the Judiciary needs independence, adding that the Executive should avoid overreach. 

B for Building Bridges Initiative

The highest court in the land found that President Uhuru Kenyatta’s involvement in the Constitution amendment process was unconstitutional. Judges stopped the Building Bridges Initiative (BBI) “reggae” — born out of the March 2018 handshake between then President Uhuru and former Prime Minister Raila Odinga. The judges declared the process unconstitutional. They ruled that Uhuru was not an ordinary citizen with powers to initiate constitutional amendments through a popular initiative. 

C for cases, come we stay and criticism

The Supreme Court has handled at least 680 cases so far. Among them, it has settled the law on the come-we-stay marriages. It ruled in a landmark judgment that long cohabitation is no proof of marriage if no evidence is provided to support the presumption of marriage.

The apex court has over time received criticism over its decisions. On September 1, 2017, the Supreme Court headed by the then Chief Justice David Maraga annulled President Uhuru’s election for a second term. He initially urged Kenyans to remain calm, adding he would respect the court’s decision.  He, however, struck a different tone at a rally by referring to the judges of the court as wakora (Kiswahili for crooks) and vowed to “revisit” the matter.

D for death sentence

The Supreme Court declared mandatory death sentence, provided under Section 204 of the Penal Code, unconstitutional. The apex court found that the section had taken away the discretion of the trial court forcing it to hand down a sentence pre-determined by the National Assembly and, therefore, going against the doctrine of separation of powers. It was lauded as a positive development to the abolition of the death penalty campaign as it propelled the wheels of policy and legal reform.

E for establishment

The Supreme Court was established under the 2010 Constitution. The first Chief Justice to head the court was Willy Mutunga, sworn in May 13, 2011. Mutunga was, however, Kenya’s 13th Chief Justice since Independence. The inaugural bench was appointed on June 16, 2011. They included Justices Mohammed Ibrahim, Jackton Ojwang, Smokin Wanjala, Phillip Tunoi, Nancy Barasa and Njoki Ndung’u.

Barasa was the first to exit after serving as a Deputy Chief Justice for a year. She was then succeeded by Kalpana Rawal, who served between 2013 and 2016. Her retirement, alongside that of Justice Tunoi and Mutunga would cause the first internal split, with Ojwang, Rawal, Tunoi and Njoki ruling that judges should not be forced to retire at 70. The argument was that Tunoi and Rawal should be allowed to serve until 74 years.

F for Finances and Finance Act 2023

The Judiciary has repeatedly lamented over the low allocation of finances. The sole challenge cited by Chief Registrar of the Judiciary Winfridah Mokaya for the lack of an ultra-modern Supreme Court building was money. She said the Judiciary has received only 50 per cent of the required allocation from the national budget. According to her, the funds should be allocated based on a scientific formula incorporating the number of judges and cases filed.  

Last week, the court okayed Finance Act 2023, reversing the Court of Appeal finding that there was no proper public participation, and found that since Housing Levy law had been amended, the issue was moot. 

G for growth and gaps

The Supreme Court has, for 12 years, contributed to growth and stability in the country. It has, in four rounds of elections, resolved the presidential election petitions and helped counties settle by issuing advisories and by creating finality in litigation. Since 2011, the number of cases filed has steadily risen, a pointer to the public confidence in the court. In 2014-2015, 61 cases were filed while 47 were resolved. The Court registered a case clearance rate of 77 per cent in that year. In in the 2016-2017 financial year, 38 cases were registered while 16 were resolved. Some 61 cases were filed while 39 cases were resolved in the 2017-2018 financial year.

As at June 30 2020, 476 matters had been filed out of which seven were presidential Election Petitions, 20 References, 224 Applications and 225 Petitions. So far, at least 680 cases have been either heard or determined by the apex court.  There are, however, gaps that need to be addressed to make the court more effective. They include change of laws to add more time for the court to handle presidential election disputes. Judges have found that the 14 days provided for in law is very strenuous. Lack of financial autonomy is another issue. 

President William Ruto (left) with Chief Justice Martha Koome during the 12th anniversary celebration of the Supreme Court’s operation. [Daniel Kariuki, Standard]

H for Hamilton Fountain

Outside the Supreme Court, at the main public entrance gate, the statue of a naked boy is holding a large fish. There has been debate about the bronze statue, with some feeling that it is culturally offensive. John Mweha Kariuki, had petitioned the Chief Justice to have it removed. The statue was put up during the reign of colonial Governor Robert Brooke in honour of lawyer Alexander George Hamilton. It was commissioned by Gertrude Hamilton and is meant to depict justice as naked, slippery and fearless as as a boy. 

I for ICT

When the Supreme Court started, it was manual. However, Covid-19 changed how it operates. Justice Isaac Lenaola, who is in charge of the ICT committee, says the court expected to, among other things, buy servers to enhance its efficiency by use of technology. However, he states that Parliament slashed its budget by at least Sh400 million. He also says the Supreme Court will soon issue directions and guidelines on using Artificial Intelligence. The judge says it will take a litigant 20 minutes to electronically file and serve a case before the Supreme Court. The apex court has adopted technology and has sub registries in the country. 

J for judges

The current Supreme Court bench comprises Chief Justice Koome, deputy Philomena Mwilu and Justices Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko.

Justice Koome assumed office on May 21, 2021, and is Kenya’s first female head of the judiciary. She replaced Justice David Maraga (2016-2021), who took over from Mutunga.

Justice Mwilu assumed office on October 28, 2016. She succeeded Justice Rawal, while Justice Tunoi was succeeded by Justice Isaac Lenaola, who was appointed on October 28, 2016. Justice William Ouko replaced Justice Ojwang on May 21, 2021. Ojwang also retired in 2020. 

K for key result areas and interventions

The court promises to ensure that all access to justice and that it shall not be delayed. So far it has employed technology in filing and case management. It also has established sub-registries. It also has transcription services. The Supreme Court had its first moot court and fora to build bonding and collegiality as a way of entrenching mentoring and peer review. Some key interventions that are pending include a proposal to amend the Constitution to increase the number of Judges to nine. 

L for lack of financial autonomy

The Supreme Court, just as other units of the Judiciary, has limited control over its resources. There have been instances where the Court’s resources have been diverted to other Judiciary activities. 

M for mission of the court

To protect and uphold the Constitution, interpret the law in an impartial, just, accessible and timely manner, enhance public trust and confidence and develop rich jurisprudence that facilitates social, economic and political growth in Kenya.

N for no automatic 50-50 matrimonial property sharing

The Supreme Court last year settled a contentious issue of whether spouses should automatically share wealth generated equally or one should get a share based on the contribution to the marriage. The court ruled that although the law guarantees marriage equality and it is assumed that couples share everything, it does not mean that one will walk away with an equal half of the wealth generated.

O for oath

Did you know that the oath of a Supreme Court judge is 146 words?

P for provincial headquarters, prisons and police

The Supreme Court building was initially used as a provincial headquarters. It also housed inland revenue offices, the Chief Justice, the registrar, the East African Court of Appeal, and High Courtrooms. At the ground floor were magistrate’s chambers while the basement had prisons and police cells where offenders were held before appearing in court.

Q for quorum glitches

The Court is composed of seven judges, and for its proceedings, the quorum is five, which remains a challenge. There are occasions when the court is unable to raise the requisite majority for its proceedings. The problem is compounded by the engagement of two judges as commissioners of JSC. Consequently, the lack of a requisite quorum led to delays in clearance of cases. 

R for Raila

Former Prime Minister Raila Odinga has three times been at the Supreme Court, challenging presidential election processes and tallying of results. In the first instance, in 2013, he said the election was not conducted in a free, transparent and fair manner. The court ruled against the petition.

In 2017, he filed a second case, this time round winning after IEBC failed to open the servers. He then challenged the re-run which was dismissed. In 2022, he challenged President William Ruto’s win which was also dismissed.

S for strength and shifting public opinion

The Supreme Court has judges drawn from different professional specialties and experience as its foremost strength. The court has clear procedures, and judges are collegial. However, its decisions’ predictability, consistency, and certainty are still unclear. Critics insist that each judge should write his or her judgment to know their stand and philosophy.  

T is for today

The Supreme Court building is 93 years old today. Its foundation stone was laid by Sir Edward Grigg, Governor of Kenya colony, on July 7, 1930, and was built in 1931. The building was classified as a national monument on December 1, 1995. 

U for upset

Former Rarieda MP Raphael Tuju is the first litigant to have been technically locked out of the Supreme Court after five judges opted to recuse themselves following cases filed before JSC accusing them of lack of impartiality. Did he upset them? 

V for vision of the court

The vision of the Supreme Court is to be a trusted apex court that protects the Constitution, sovereignty of the people of Kenya, rule of law and enhances jurisprudence. 

W for weaknesses

Inadequate library and information resources, restrictive composition of seven judges, insufficient human resource capacity, low stakeholder engagement, limited media engagement and lack of financial autonomy have been cited as some of the Supreme Court’s weaknesses. 

X for rare letter

X is perhaps the most rare or uncommon letters to use at the start of a word. So far no one has made a buzz by using the words that have an X as the first letter before Supreme Court. Words such as amicus curiae (friend of the court) emerged during hearings and have become the vocabulary of the town. 

Y for years

The Supreme Court is now 12 years. Deputy President Kithure Kindiki jokingly said that it is now approaching teenage hood. 

Z for zip

We now zip the bag about what you should know about the Supreme Court.