Cases government won and lost in court in 2024

THE HITS

 Successful Legislative Overhaul: Affordable Housing

The Court's ruling on the contentious Housing Levy was one of the major wins by the Kenya Kwanza Government, especially after the President's pronouncement on how his employment plan would be in disarray had the courts outlawed the 1.5 per cent monthly levy.

His ambitious job creation agenda was greatly boosted after a three-judge bench in October this year gave the Housing Levy the greenlight.

In the said ruling, Justices Ogla Sewe, John Chigiti and Josephine Mong’ dismissed six petitions challenging the Affordable Housing Act saying that the housing levy, at the rate of 1.5 per cent of the employee’s total gross monthly salary, was properly enacted.

‘It is clear that the National Assembly and the Senate focused on stakeholders for the public participation. It cannot be denied that the public participation took place," the three-judge bench said.

"It is our finding that the levy is properly in place and in accordance with the Constitution, they added.

The court's decision to validate the levy was highly welcomed by the Kenya Kwanza government as it would be seen as a boost to Ruto's attempts to steady the nation’s finances by raising more revenue through affordable housing.

Finance Act 2023

The decision by the Supreme Court to overturn a decision by the lower court that had quashed the Finance Act 2023 was another key success for the Kenya Kwanza government.

The government faced significant opposition from various sectors, including the public, who were wary of increased taxes in the middle of a harsh economic climate.

However, after months of legal tussles and public debate, the bill was upheld by the courts, cementing President Ruto’s economic policy vision. 

The Apex court in its ruling said Parliament adhered to the required legislative process of Public participation when the Bill was enacted.

Court of Appeal Judges Justices Kathurima M'inoti, Agnes Murgor and John Mativo said the various sections introduced post-public participation to amend the Income Tax Act, Value Added Tax Act, Excise Duty Act, Retirement Benefits Act and Export Processing Zones Act were unconstitutional as they were not subjected to fresh public participation. Dissatisfied, the state appealed the case to the Apex Court.

‘The Bill was subjected to public participation which was adequate and satisfactory. To that extent, we find there was no basis to declare the entire Act unconstitutional," the Supreme Court Judges said while overturning the Court of Appeal decision.

Impeachment of Deputy President Rigathi Gachagua

What had initially seemed like a daunting setback transformed into a strategic win after the High Court set aside orders that had blocked the replacement of impeached Deputy President Rigathi Gachagua.

 The move by the courts to set aside the orders solidified KK’s grip on power with the narrative shifting from a constitutional crisis to a formidable government in power.

In the decision, Justice Eric Ogola lifted the conservatory orders that blocked the swearing-in of Kithure Kindiki saying the applicants were not going to suffer any prejudice.

“We however reiterate that this matter holds significant public interest, and we remain committed to the expeditious examination of the petition,” Ogola ruled.

Gachagua has maintained that the move to remove him from office was politically motivated.

He has been accused of corruptly acquiring assets valued at over Sh5.7 billion, an amount that is inconsistent with his monthly salary as the DP. 

"They have falsely and sensationally alleged that I have amassed a humongous property portfolio estimated at Sh5.2B so as to unlawfully harm my reputation and standing with the public and my family," the DP argued in his defense.

The matters are still pending determination in court as Gachagua challenges the legality of his impeachment process that was initiated at the National Assembly and upheld by the Senate.

SHIF rollout

Transitioning NHIF to SHA was one of the major bottom-up plans by the KK government.

The same was however met with a series of court cases with the Fund being declared unconstitutional only for the Court of Appeal to pave way for its rollout.

The Court of Appeal two months ago granted the government a major reprieve by suspending a judgment that effectively halted a universal healthcare programme before it even began.

In its decision, Justices Francis Tuiyott, Abida Ali Aroni and Lydia Achode ruled that it would be unwise and chaotic to revert to the National Health Insurance Fund (NHIF) nine months after it was repealed.

They said that if the appeal by the state is successful, returning to the old health scheme would lead to even more confusion.

On July 12 this year, the High Court had declared the Fund as unconstitutional but at the same time gave Parliament 120 days to make amends to the said Act.

The three-judge bench said parliament should undertake adequate public participation in accordance with the constitution before enacting the same act and amending the unconstitutional provisions.

"This should be done within 120 days. If they fail to, the Act shall remain suspended," they said

But the state being dissatisfied appealed the decision which was suspended paving the way for the fund's rollout.

MISSES

Privatisation Act

Failure by the KK government to uphold the rule of law by adhering to the principle of public participation cost them the ‘gains’ they had made with the enactment of the Privatisation Act.

In passing the impugned Act, the National Assembly and the President failed in there to protect and uphold the sovereignty of the People of Kenya.

The net effect was to grant the Executive arm of government sweeping powers to dispose of prized assets comprised of Kenya’s sovereign wealth.

But even before the assets were privatised, the court declared the move by the government unconstitutional.

Justice Chacha Mwita agreed with submissions made by the Orange Democratic party that filed the case in court saying the public was not allowed to give its views regarding the Act which made it easier to sell state enterprises to private companies.

On October 9, 2023, President William Ruto assented to the Privatization Bill, 2023 (the Impugned Act) into law and designated its commencement as 27th October 2023.

This Act allowed the government to sell assets like the KICC which the courts declined saying it is a national heritage and privatising will go against article 11(2) of the constitution and the Monument and Heritage Act. 

IMEI disclosure order

Another miss by the state was when the courts blocked a directive requiring the registration of mobile phones' IMEI numbers.

The notice issued by the Communications Authority and Kenya Revenue Authority would have required all local assemblers, importers, retailers and wholesalers as well as mobile network operators to upload the International Mobile Equipment Identity (IMEI) number of each assembled or imported mobile device to KRA portal to facilitate the tax compliance monitoring. 

But Justice Mwita in suspending the notices took into consideration arguments made by Katiba Institute, the petitioner that they were neither tabled in Parliament nor subjected to public participation as required by the constitution.

The move they said went against Article 35 of the Constitution which requires all relevant facts to be published prior to formulating important policies and announcing decisions impacting the public.

 

University funding model

While it was seen as a win for university students, it was a big blow to the state after the courts in August this year suspended the university funding model.

The courts issued directives that meant public universities would have to admit and provide learning to students who have failed to raise or fully pay fees as required under the new model.

Justice Bahati Mwamuye considered arguments made by the petitioners that the move by the state is affecting a majority of students set to join or continue education within public universities through the applications of the new Higher education funding model.

President William Ruto unveiled the new university and TVETs funding model on May 3, 2023.

The funding model places students in five bands using eight variables, including parents’ background, gender, course type, marginalization, disability, family size, and composition.

Ruto said it was aimed at primarily benefiting students from extremely poor backgrounds. The case pends hearing and determination.

These court cases majority of which are still active in court continue to play a pivotal role in shaping the direction of the government.

The judicial outcomes not only impact the Kenya Kwanza agenda but also serve as a reminder of the delicate balance between power, accountability, and the rule of law in the country’s democratic framework.