The Ombudsman has lost its bid to expand its authority over constitutional commissions, including the Judicial Service Commission (JSC), and county governments.
This is after the Supreme Court declined to issue an advisory opinion on the watchdog’s mandate, ruling that the request did not justify its discretionary intervention outlined under Article 163(6) of the Constitution.
In a unanimous decision delivered on Friday, the court said the request by the Commission on Administrative Justice (CAJ), popularly known as the Ombudsman, did not warrant its intervention.
The five-judge bench led by Chief Justice Martha Koome said that although the CAJ had the right to seek guidance from the apex court, it had failed to show why such guidance was necessary.
“Ultimately, based on our findings above, we decline to exercise our discretion in rendering an opinion in this matter,” the judges ruled.
The Ombudsman had asked the court to clarify the extent of its powers when dealing with county officials, state officers and members of constitutional commissions.
It also wanted the court to revisit its 2021 ruling, where the judges held that the CAJ’s recommendations are not binding.
The CAJ argued that the earlier ruling had limited its ability to issue firm directives, especially when public bodies ignore its findings.
The dispute came to the fore in February 2025 after the Ombudsman summoned members of the JSC to answer questions over claims that complaints against judges and judicial officers were not being fully published.
Then Court of Appeal JudgeJustice Martha Koome when she appeared before the Judicial Service Commission at the Supreme Court buildings on April 14, 2021 for the Chief Justice interview.
Photo credit: Jeff Angote | Nation Media Group
The summons targeted Chief Justice Koome and other commissioners. CAJ wanted to quiz Chief Justice Martha Koome, together with other members of the JSC, including the Attorney General Dorcas Oduor, over full non-disclosure of complaints against judges and judicial officers.
However, the move was suspended pending the Supreme Court’s opinion and consultations with the Attorney-General.
Among the questions Ombudsman wanted the Supreme Court to pronounce itself in the advisory opinion was what are the CAJ's limits and power under the law in issuing summons to a witness from the county governments, state officers or constitutional commissioners.
But in its decision, the Supreme Court said advisory opinions are not issued automatically. The judges stressed that the court is not a legal adviser to state agencies.
“The Supreme Court is not a legal adviser to State organs,” the bench said.
"The applicant is, in this Reference asking this Court to expand its mandate, powers and functions beyond what is laid down in the Constitution and Statutes. This we must say, does not fall within the mandate of this Court," said the judges.
The court noted that before moving to the Supreme Court, the CAJ had sought advice from the Attorney-General, who responded in detail.
The Attorney-General advised that while the Ombudsman can investigate complaints, summon witnesses and make recommendations, it does not have the power to issue binding decisions like a court.
“Once a party gets the advice from the Attorney General, they can move this Court for an advisory opinion, only if and when they are dissatisfied by that advice,” the ruling stated.
The court also said the Ombudsman had not shown that its powers had been blocked or that it had exhausted the steps available to it under the law.
On the request to revisit the 2021 decision, the judges were firm. They said a party cannot use an advisory request to challenge or overturn a previous ruling simply because it disagrees with it.
“A litigant cannot urge the Court to depart from its previous decision simply because he disagrees with it or that the decision militates against his case,” the bench said.
It explained that though the Supreme Court may depart from its previous decisions as per Article 163 (7) of the Constitution, such departure must be premised upon a clear and well-reasoned justification.
"In our view, the applicant is not seeking an Advisory Opinion within the meaning of Article 163(6) of the Constitution. On the face of it, it is clear to us that, what the applicant seeks is not an Advisory Opinion, but this Court’s departure from its previous decision," said the judges.
“The time of this Court is too valuable to be frittered away on hypothetical fears or contingent future events,” they said.
The court left the Ombudsman to pursue its mandate within the limits already set by law and previous court decisions.
