The Milimani Law Courts in Nairobi.
A number of high-profile court cases coming up this year will define the country’s social, political and economic landscape no matter their outcome.
While some focus on President William Ruto’s big-ticket agenda, others are about human rights and politics.
Here are eight key court cases to look out for this year:
Fate of Elon Musk’s Starlink
One of the cases was triggered by the entry of controversial billionaire Elon Musk’s Starlink, an international satellite internet service, into Kenya.
Kituo Cha Sheria filed the case last year arguing that satellite internet services should be allowed to grow and claims by Kenyan-based telecommunications giant Safaricom that direct entry of Starlink into the market poses a threat to mobile network quality, were unfounded.
Communications Authority of Kenya (CA), the industry regulator, said in court filings that it has sought the assistance of the United Nation’s International Telecommunication Union (ITU) to come up with a regulatory framework on satellite internet services.
CA revealed that the challenge posed by the entry of Starlink satellite services forced it to urgently consult ITU member states with a view to coming up with a “globally harmonised template of regulations for the technology”.
The CA said with the assistance of ITU, member states can then ‘panel-beat’ the regulations to suit each country’s domestic circumstances and national interests.
Enforced disappearance
Another case being awaited is a matter filed by several lobby groups seeking give the Independent Policing Oversight Authority (IPOA) the exclusive mandate to investigate all incidents of death and serious injury caused by the police.
The lobbies — including Kituo Cha Sheria, International Justice Mission, Haki Africa as well as Law Society of Kenya — argue that parallel investigations have led to cover ups and poor investigations.
Further, the lobbies argued that due to the high number of cases of enforced disappearances and the low number of investigations and prosecutions, the government was unwilling or unable to genuinely resolve the cases.
The police are responsible for investigation of crimes as per sections 24(e) and 35(a) and (j) of the National Police Service Act.
On the other hand, under sections 6(a) and 25 of the Independent Policing Oversight Authority Act, IPOA is responsible for investigation of crimes committed by the police.
As such, there exists an overlap of mandate between the Directorate of Criminal Investigations (DCI) and IPOA on investigating extrajudicial killings and enforced disappearances.
“There is also an apparent conflict as the police cannot effectively investigate extrajudicial killings and enforced disappearances alleged to have been caused by the police,” Kituo Cha Sheria told the court.
High Court judge Lawrence Mugambi will deliver his judgement on March 6, 2024.
Turkana residents take on Tullow Kenya
In a case pending determination at the High Court, more than 40 residents of Turkana County have sued oil and gas exploration firm Tullow Oil Kenya accusing the company of what they termed as violence development, by destroying the environment and their livelihood.
The 43 residents, among them children, accused the multinational of destroying the environment through hazardous environmental activity and other acts and omissions constituting environmental degradation. The company announced the discovery of commercially viable quantities of oil in 2012 in Lokichar, Turkana County, and continues to operate in the area.
The residents want the multinational forced to pay them damages for the harm and injury suffered due to the hazardous activities and negligent acts of Tullow.
The assessment should be done by an independent panel in consultation with specialists who have expertise in reparations and compensation for environmental damages and human rights abuses.
Further, the petitioners want the company forced to provide a suitable environmental bond of $2 billion (Sh260 billion at current exchange rates) or any other amount as the court may deem fit to assure compliance with the orders.
It is also their prayer that Tullow should be fined Sh150,000 per day for any failure or delay in removing and disposing of all wastes and chemicals in the Lokichar Basin.
University funding model dilemma
In December, the High Court quashed the new university funding model terming it unconstitutional, dealing a blow to President William Ruto’s plans to reform the education sector.
Justice Chacha Mwita quashed the model stating that it was discriminatory, was introduced without public participation and violated students and parents’ legitimate expectation.
Attempts by Attorney General for the court to suspend the judgment for 45 days “to allow the government correct the mistakes” pointed out by the judge, were declined.
Attorney General Dorcas Oduor said she will appeal against the decision, arguing that the judgment has caused confusion in the higher education sector, as the new model has been rolled out.
Justice Mwita added that new funding model, known as the Variable Scholarship and Loan Funding Model (or New Higher Education Funding Model), was introduced after students who completed their secondary education in 2022 had selected their preferred courses but were forced to change the courses, frustrating their legitimate expectation.
The government had defended the new funding model in court, arguing that the previous system had become ineffective over failure to consider the cost of postgraduate courses and largely generalised all universities without addressing the unique challenges faced by each institution.
The Ministry of Education said the new model addressed challenges experienced by extremely vulnerable and needy students who had been greatly disadvantaged by being denied funding at the expense of students whose parents or guardians could afford to pay for the education.
Gachagua impeachment battle
More than 40 cases are pending determination at the High Court on the impeachment and eventual removal of Mr Rigathi Gachagua as the deputy president.
Being the first one of its kind, Kenyans were keen in observing the events as they unfolded in court corridors as the outcome of some of the cases not only has serious implications to the political landscape but also tests the 2010 Constitution.
The impeachment was highly significant in terms of setting constitutional and legal precedents, affecting political stability and the possibility of impacting the 2027 General Elections as politicians align themselves.
The National Assembly voted on October 8, 2024 to impeach Mr Gachagua, a move that was later endorsed by the Senate as various legal challenges continued.
Mr Gachagua was eventually removed from office on October 17 and President Ruto nominated Prof Kithure Kindiki the following day and his nomination was approved by the National Assembly.
The case will be heard on January 23, 2025.
Still on Mr Gachagua’s case, the Court of Appeal will determine whether Deputy Chief Justice Philomena Mwilu had the powers to appoint a bench of three judges to determine the petitions.
Affordable housing challenge
The High Court had in October gave the Affordable Housing Act a clean bill of health but some Kenyans, led by Nakuru-based surgeon Dr Benjamin Magare-Gikenyi, moved to the Court of Appeal, seeking to overturn the decision.
A three-judge bench of the High Court ruled that the Act was constitutional as it intended to protect, promote and fulfil the right to adequate housing, a socio-economic right all persons in Kenya are entitled to.
Justices Olga Sewe, Josephine Mong’are and John Chigiti further ruled that the mandatory 1.5 per cent levy imposed on total gross monthly salary of every employee, cannot be said to be unconstitutional.
The judges held that the Act is meant to fulfill the constitutional duty of the State to provide housing.
But in the appeal, Dr Gikenyi argued that forcing employed Kenyans to give out their hard earned money towards the levy without assurance of getting a house is illegal.
He further argued that it is wrong for the government to force those in formal employment to contribute, regardless of one’s true status in relation to housing.
“By failing to provide a procedure for collecting the levy from the informal sector, the Act effectively excludes them from its application. This differential treatment of classes of citizens is not only discriminatory, irrational, and arbitrary but also unconstitutional,” he said.
New health system
Still in court, are several cases challenging the health laws that were introduced by the Kenya Kwanza administration and replaced the National Health Insurance Fund (NHIF).
One of the cases is pending before the Court of Appeal as the government appealed the quashing of the new laws by the High Court.
The High Court had in July last year declared that the Social Health Insurance Act, Primary Health Care Act, and Digital Health Act, which replaced the NHIF, illegal for not subjecting them to public participation.
Justices Alfred Mabeya, Robert Limo and Fred Mugambi, however, suspended their judgment for 120 days to allow parliament to undertake sufficient and inclusive public participation, before enacting the laws.
The case was filed by activist Joseph Enock Aura.
In the appeal, the government said the laws have been in operation during the last six months without any complaint and they are the main pillars of universal health care, and in their absence, the health service shall be in jeopardy or collapse altogether.
Another petition is pending before the High Court challenging the rollout of SHIF as Dr Magare-Gikenyi, Busia senator Okiya Omtatah and Eliud Matindi questioned the rollout in the absence of enabling subsidiary legislation issued under SHA and approved by Parliament to make it operational.
The three petitioners have also questioned the procurement of a consortium that includes Safaricom to provide an Integrated Healthcare Information Technology System for Universal Health Care at the cost of Sh104.8 billion. The case will be heard in February 2025.
Adani deals
President William Ruto suffered a blow when the High Court suspended two multi-billion-shilling deals with Adani Group, an Indian multinational owned by billionaire Gautam Adani.
Although President Ruto announced the cancellation of the two lucrative tenders — for the development of the Jomo Kenyatta International Airport and electricity transmission lines — which had been granted to the Indian conglomerate, the cases will proceed.
The court directed the matter to be mentioned on January 29, for directions.
