During President Uhuru Kenyatta’s tenure, the presidency has had a love-hate relationship with the judiciary, with the President having in the past even spoken out publicly about the Judiciary, the most popular one being after the Supreme Court of Kenya nullified his national election win on September 1st, 2017. As opposed to her two predecessors, current Chief Justice Martha Koome has been seen as being too cozy with the presidency. This has been vocalized by UDA affiliated MPs after the Chief Justice decided to chair the National Multi-Sectoral Consultative Forum for Elections Preparedness, claiming she could be used to assist rig the 2022 elections.The President went on to say that they (as a ruling party) would revisit the matter, a reference to the Supreme Court ruling that underscored his and his Jubilee Party’s unhappiness/displeasure with it, in his speech that was taken by some as issuing veiled threats to the judiciary. The confrontation has continued through his term with President Kenyatta’s detractors claiming that he was trying to interfere with the judiciary’s independence. Throughout his two terms, the government has lost numerous cases based on government directives that have been challenged. A number of these directives or actions have been declared unconstitutional. The perception created through reporting of these losses is that the Jubilee government has little respect for law and constitutionalism; but is that really true? We spent three months going through court rulings involving the government of Kenya, in order to determine the government’s win/loss record over the past 8 years.
We looked at the rulings where the Attorney General(AG) had been mentioned since 20th August 2013 through to 11th June 2021, finding a total of 2453 court cases. We focused the search on cases in the High Court, the Environment and Land Court, the Court of Appeal and the Industrial Court. Closer inspection of the rulings showed that most rulings were from cases where the government, its agencies, parastatals or various arms had been directly sued, or sued itself. A majority of these cases were civil matters focused on land disputes where the Attorney general was mentioned as a respondent.
An analysis of these cases shows that of the total of cases obtained from The National Council for law reporting, only 643 cases were from cases where the government or its entities were directly sued or were the plaintiffs.
The government has lost slightly more cases than it has won, with most of those cases being from the Environmental and Lands Courts. Several cases have also been dismissed on technicalities, therefore lacking a true winner or loser. We tallied 209 cases won versus 275 cases the government lost over an 8-year period.
Amounts Owed by the Government
The total amount owed by the government as compensation for that period totaled Kshs. 7,023,807,547.25. The largest compensation amount added up to Kshs. 2,950,000,000 by the National Land Commission to the estate of Sisiwa Arap Malakwen for their 100 acres of ancestral land that was compulsorily acquired by the government in 1978. The second largest compensation award is to the residents of Owino Uhuru Village in Mikindani to a tune of Kshs. 2,000,000,000 after their land and water was contaminated by a factory.
Most cases did not involve any specified monetary compensation as, in most of them, the government was asked to pay the costs of the suit with interest on the reducing balance till full payment of the compensation amount. Several cases also included no orders as to costs to either parties due to them involving matters of public interest. Being unable to get the specific amount of costs paid out, we got 52 cases showing specific monetary compensation amounts.
The 2380 number of cases, which is 97% of the total number of cases tallied, came from the Environmental and Lands Courts showing how big the land issue in Kenya is. The major issues in these land cases have been compulsory acquisitions without compensation or following due process, illegal trespass, evictions, demolitions, historical land injustices and fraudulent acquisition of land. The government has worked on a raft of measures to try and curb corruption and fraud at the Ministry of Lands. On 22nd January 2015, the president ordered the then Lands Cabinet Secretary(CS), Charity Ngilu to issue all public schools with title deeds to curb the rampant land grabbing. The Lands Ministry also initiated the automation of the lands registry in March 2018 followed by the formulation of a definitive land policy in 2019.
Illegal and Compulsory Acquisitions
The government won a case against Electrical Options Limited, claiming to be the owners of the land where Ngara Bus Terminus and public toilet are situated. The court declared that the defendant had fraudulently acquired the title deed and was asked to pay the government the counterclaim of Kshs. 85,000,000.
On the other hand, the government has had to pay a lot of entities due to illegal compulsory acquisitions, trespass and evictions. These include Kshs. 711,588,204 to Mark Maina Kamau for illegal demolitions and destruction, Kshs. 100,000,000 to Khimji Bhimji Seyani and two others for compulsory acquisition without compensation and Kshs. 50,000,000 to Patria Properties Limited also for unlawful compulsory acquisition among others.
Other land issues that showed up quite a few times include the Mwea Irrigation Scheme adjudication and evictions from Mau Forest and Embobut Forest. The Mwea Settlement Scheme consists of 42,000 acres of land falling under the larger Mwea Trust Land. The dispute has been ongoing for decades, since 1980 when its adjudication began but stalled till 2016 when the Embu County government demarcated, allocated and issued title deeds. The dispute, which has resulted in many deaths, is between four communities, the Kikuyu, the Embu, the Mbeere and the Kamba. Although situated in Embu County, Kirinyaga residents claim the scheme was stolen from them when the two were a single administrative unit. Political interference has also contributed to delays in the demarcation plans which started in the 70s with various regimes failing to find a solution.
With Kenya’s forest cover having decreased significantly since the 70s, the government embarked on plans to evict squatters from various forests, the most reported evictions taking place in the Mau Forest, which commenced on July 7, 2018. The government then followed with a second phase in 2019 targeting the Mau Summit section of the forest in Narok County. It was alleged that 9 people died and 4 others went missing in an operation that saw numerous evictees beaten, their houses torched and crops destroyed. The Mau evictions have also affected the Ogiek, one of the few remaining hunter gatherer tribes in the country. The government has gone ahead with the evictions, ignoring a 2017 ruling by the African Court on Human and Peoples’ Rights granting the Ogiek the right to live in the forest.
The Sengwer, another indigenous Kenyan tribe of the Embobut Forest, were forcefully evicted by the government. A 2013 Amnesty International report shows that the community was neither consulted nor resettled in the exercise that led to Kenya Forest Service personnel burning 341 houses and leading to the killing of one Sengwer man and the hospitalization with gunshot wounds of another on Christmas day, 2017. A February 2018 report by a government task force concluded that the Kenya forestry Service colluded with illegal loggers in the extensive logging and destruction of the Embobut Forest, the actions of which the Sengwer were being blamed and persecuted for. According to Amnesty International, the EU suspended funding to the Kenya Water Towers Protection and Climate Change Mitigation and Adaptation Programme following the use of lethal force resulting in the death of one Sengwer man during the evictions.
Other evictions have been witnessed in urban areas especially in informal settlements. In May 2020, the government evicted over 8,000 people from the Kariobangi North Sewerage settlement and Ruai in Nairobi. This left the residents out in the open despite there being a COVID-19 outbreak and a dusk-to-dawn curfew. The Kariobangi North evictions went ahead despite there being a court order halting the removal of structures. In Ruai, the government evicted residents at night leaving them to sleep in the rain.
3,000 people were forcefully evicted from the Dagoretti Corner settlement by Kenya Power and Lighting Company (KPLC) and Kenya Railways, leaving them homeless. The exercise, overseen by over 100 armed police, was in direct disregard to the May 2020 Presidential moratorium on evictions during the COVID-19 pandemic.
The government has been on the spot with many accusing the AG Paul Kihara of either misadvising the government or the president ignoring his advice. This comes after the government lost most of its major cases since AG Kihara got into office after different courts declared various decisions as unconstitutional and illegal. Several judges have also accused the government of ignoring court orders with the Employment and Labour Relations Court judge James Rika saying that it made the courts look like toothless bulldogs whose judgements and orders “are not worth the papers they are written on”.
After the then Nairobi Governor Mike Sonko ceded some county government functions to the central government, President Kenyatta created the Nairobi Metropolitan Services (NMS). The high court ruled that the creation of NMS and transfer of functions of the county government was unlawful and erred in altering government structure.
Despite the court orders, the president appointed Major General Mohamed Badi as the director and subsequently included him in all cabinet meetings and committees under executive order No. 3 of 2020. The government lost, in a case filed by Kandara Member of Parliament Alice Wahome, with high court judge Justice Anthony Mrima declaring the decision as illegal, unconstitutional and void. Despite the court orders, the NMS continues its operations alongside the county government of Nairobi, with General Badi still on the helm.
The Building Bridges Initiative (BBI), one of the leading projects by President Kenyatta after the famous handshake with his foe turned friend and nemesis Raila Odinga, was in the works to be one of his legacy projects. The initiative proposed altering the constitution by creating at least 70 new constituencies, a prime minister’s post and the creation of up to 300 new unelected posts in parliament. The initiative, which is vehemently opposed by his deputy, was rushed through county assemblies, the National Assembly and Senate. In a ruling held by 5 High Court judges, the bench ruled unanimously that the process was unconstitutional and ordered the IEBC not to conduct a referendum on the Constitution of Kenya Amendment bill. Despite the loss, the government lodged an appeal at the Court of Appeal which upheld the High Court’s decision and later the Supreme Court where the seven bench court declared BBI unconstitutional in a majority decision of five against two.
On January 26,2018, the president announced the creation of the post of Chief Administrative Secretary (CAS) in all ministries to help the Cabinet Secretaries to better coordinate the running of the affairs of their respective ministries. Activist Okiya Omtata filed a case opposing the creation of the CAS post, and the reappointment of 10 Cabinet Secretaries from President Kenyatta’s first term without vetting in 2017. In a High Court ruling on 20th April, 2021, Judge Anthony Mrima declared that the creation of the post of CAS was illegal and unconstitutional, citing the lack of public participation in the process. The judge also ordered that the cabinet secretaries retained from the previous term ought to have been vetted afresh or competitively recruited by the Public Service Commission (PSC). Despite the court orders, the Cabinet Administrative Secretaries continue to serve in the position where most former politicians and failed aspirants in the 2017 general elections were appointed.
The president has been dealt a blow in other appointments, as well. A three-judge bench at the high court quashed his June 2018 appointment of 129 heads of state corporations and board members, saying it was unconstitutional. The case, brought to court by the Katiba Institute and the Africa Centre for Open Governance (AfriCOG), argued that the appointments lacked a semblance of neutrality and accountability.
As the tiff between the Judiciary and the Presidency continues, the president appointed 34 judges on 3rd June 2021 but left out six judges. Two of the judges, Justices Joel Ngugi and George Odunga, had sat on the bench that previously declared President Uhuru’s push to change the constitution through the Building Bridges Initiative(BBI) unconstitutional. In yet another loss, the high court ordered the President to appoint the judges within 14 days, a decision that the president has appealed. The Katiba Institute case pointed out that the Attorney General had been a member of the Judicial Service Commission (JSC) between June and July 2019, and actively interviewed candidates for judicial appointments.
We requested a response from the Office of the Attorney General and Department of Justice with regards to the above analysis. In an email response, the office responded as follows:
- That we had made serious allegations without providing any proof
- That our analysis was premised on a seriously flawed understanding of how the court process works
- On the issue of enforcing evictions despite their being court orders halting the exercise, no comment was provided as they cited advocate-client confidentiality
- That the report and analysis we conducted are sensational reporting that is not scientifically objective or factual.
We followed up the response with a copy of the data we used and a clarification on the office’s assertion that our analysis was purely binary. We are yet to receive a response as of the time of publishing.