Guardian or gatekeeper? Judiciary and the deafening sound of silence

The corridors of justice in Nairobi's Milimani Law Courts are usually a theatre of noise. Lawyers in flowing black gowns trade legal jabs, activists chant outside the gates, and the gavel falls with theatrical finality.

But lately, a different sound has echoed through those hallowed halls—the sound of silence. It is a silence so loud that it has become the defining soundtrack of Kenya's fight against corruption and impunity.

In the last three months alone, at least seven individuals, including whistleblowers, activists, and bloggers, have vanished into thin air. Their families have filed habeas corpus petitions, camped outside police stations, and begged for answers.

Yet the Judiciary, the institution constitutionally mandated to be the ultimate shield against state excesses, has largely watched from the sidelines. No urgent summons to security chiefs. No expedited hearings. No thunderous condemnation. Just silence.

This silence matters, because it stands in contrast to the noise emanating from other institutions. The Directorate of Public Prosecutions has been issuing statements, however inconsistently. The Ethics and Anti-Corruption Commission has been conducting raids and parading suspects before cameras. Parliament, through its various committees, has been summoning Cabinet Secretaries and parading them before live television audiences.

Even the Executive, despite its own glaring contradictions, has mastered the art of appearing busy, announcing task forces, reshuffling security chiefs, and issuing stern warnings.

But when it comes to the actual dispensation of justice, the moment of reckoning in a courtroom, the Judiciary has become the weakest link. It is the place where the buck stops, and too often, it stops dead.

The latest is the case of Abshir Ahmedsadak Abdi, a Nairobi advocate who was abducted on November 1, 2026, along Muchai Road, off Ngong Road.

According to court proceedings and CCTV footage, armed men in tactical gear pursued his vehicle, forced him out, and bundled him into a black Toyota Land Cruiser Prado. His white Toyota Premio was later found abandoned. His phones have been off since that morning.

His family filed a habeas corpus application at the Milimani High Court. On November 4, Justice Alexander Muteti directed the Inspector General of Police, the DCI Director, and other respondents to produce Abdi before the court, alive or dead, by 2:30 pm that day, and to present any warrants authorising his arrest and detention. The court certified the application as urgent.

The response from the State was telling. Inspector General Douglas Kanja and DCI Director Mohamed Amin did not personally attend. They sent lawyers. Senior Counsel Paul Nyamodi told the court that Abdi was not in police custody.

An officer from the Anti-Terrorism Police Unit alleged that Abdi had been part of an extortion network, claims his family and lawyers dismissed as a smear campaign.

The court order was clear; the deadline passed. Abdi was not produced.

His lawyer, Senior Counsel Eric Theuri, told the court that the submissions by security officers had only confirmed their fears. “They have, in fact, introduced material before you to confirm and ascertain the fears that we have had, that Abshir has been subjected to extra-constitutional measures,” he said.

The Law Society of Kenya did not wait for the Judiciary to act further. On November 6, advocates marched from Milimani Law Courts to Vigilance House, demanding Abdi's release.

LSK President Charles Kanjama declared: “An attack on Advocate Abshir Ahmedsadak Abdi is an attack on all of us”. The Society has since named individuals it suspects were involved in the abduction and threatened private prosecutions if no action is taken.

Amnesty International Kenya noted that Abdi's abduction brings the number of documented enforced disappearances in 2026 to 22. The organisation called on security agencies to “immediately establish Abdi's whereabouts and secure his release, or, if he is being held in lawful custody, produce him before a competent court without further delay and in full compliance with High Court orders”.

The orders have not been complied with. No one has been held in contempt.

"This is where the Judiciary's mettle is truly tested. The abduction of a lawyer, a whistleblower, or an activist is not just a crime against the individual. It is a direct assault on the constitutional order. It is a message to the courts: we do not respect your authority. We do not fear your orders. We can do as we please," says lawyer Peter Wena, adding.

"When such a message is sent, the Judiciary has two choices. It can assert its authority, summon the security chiefs, hold them accountable, and demonstrate that the law is not a plaything. Or it can retreat into silence, hide behind procedural niceties, and hope the storm passes."

So far, the Judiciary has chosen the latter.

“The Judiciary must prove that it means business on matters of abduction,” says lawyer Njeru Ndegwa. “You cannot keep issuing orders that are routinely ignored and then expect the public to believe you are serious. The courts must demonstrate that there are consequences for defying their authority. Otherwise, the orders are meaningless.”

But the problem goes deeper than mere inaction. It goes to the heart of public confidence in the justice system. “How do you expect Wanjiku to believe in, or have confidence in, an institution that repeatedly applies double standards, treating ordinary Wanjiku harshly while handling top government officials with kid gloves?” Ndegwa asks.

The record speaks for itself. Deputy Inspector General of Police Gilbert Masengeli was held in contempt of court on September 9, 2024. He was never jailed. Douglas Kanja was held in contempt of court on September 17, 2026. He was never jailed.

George Kinoti was held in contempt of court in 2021 and sentenced on November 18, 2021. He was never jailed. Joseph Boinnet was held in contempt of court in February 2018, together with Kinoti, in the Miguna Miguna matter. He was never jailed.

Four senior security officials; Four findings of contempt and zero consequences. The message is unmistakable: the law applies to some, not all.

Joshua Malidzo, a human rights lawyer and constitutional scholar, is unequivocal in his criticism. “Stop dismissing our genuine concerns,” he says. “The Judiciary must also recognise abductions as a menace and issue stronger remedies, including declaring a state of unconstitutional affairs, as the Colombian Constitutional Court has done. Make the rule of law matter and stop giving the Inspector General and his cabal a free pass!”

Malidzo's reference to Colombia is instructive. In 1998, the Colombian Constitutional Court declared a “state of unconstitutional affairs” in response to widespread forced disappearances, finding that the government had failed to protect its citizens.

The court ordered sweeping reforms and mandated that the state take urgent action to address the crisis. Such a declaration in Kenya would be a powerful statement, a judicial recognition that the abduction crisis is not just a series of individual crimes, but a systemic failure that demands systemic remedies.

This is not just a legal problem. It is a constitutional crisis. The 2010 Constitution was designed to create a judiciary that would act as a check on the excesses of the other branches of government.

It gave the courts the power to review legislation, to hold the Executive accountable, to protect the rights of the marginalised and the vulnerable. It created a Bill of Rights that is among the most progressive in Africa.

But a constitution is only as strong as the institutions that defend it. If the Judiciary is unwilling or unable to enforce the constitution, then the constitution becomes a dead letter. If the courts cannot compel the production of a lawyer who has been abducted, then the Bill of Rights is just a piece of paper.

The Judiciary's own statement, issued on November 6, 2026, through spokesperson Paul Ndemo, attempts to deflect responsibility. “It is important to appreciate that the Judiciary is an independent and impartial arbiter of disputes, not an investigative, prosecutorial or law enforcement agency,” the statement read. It condemned abductions and enforced disappearances, noting that courts had consistently exercised their constitutional mandate through habeas corpus proceedings. It urged journalists to distinguish between the responsibilities of courts and those of investigative agencies.

Former Law Society of Kenya president Nelson Havi was scathing in his assessment. Responding to the Judiciary's statement, he wrote on X: “The most incompetent CJ Kenya has ever had.” Havi's remark was directed at Chief Justice Martha Koome, who has faced mounting criticism for her perceived failure to speak out on abductions and to assert judicial independence.

The criticism extends beyond Havi. A growing chorus of voices, including lawyers, activists, and ordinary citizens, is demanding that the Chief Justice break her silence.

“My Lady, the Chief Justice, you need to speak up,” says one prominent advocate, Malidzo “Abducting or intimidating advocates because of the cases they handle is not merely an attack on the legal profession. It is an attack on the rule of law and the institutional foundations of judicial independence.”

The abduction cases are only the most visible symptom of a deeper malaise. The Judiciary's failures in the fight against corruption are even more glaring. This is a country where billions of shillings are stolen every year, from the National Youth Service, from the Kenya Medical Supplies Authority, from the Ministry of Health, from the Kenya Power and Lighting Company.

It is a country where corruption scandals are announced with great fanfare, commissions of inquiry are launched, suspects are arrested and paraded before cameras, and then, months or years later, the cases quietly collapse.

Why do they collapse? Because the Judiciary allows them to. Because the courts have become a sieve, not a shield. Because the corridors of justice have become corridors of impunity.

“The courts are not failing because they are overwhelmed,” says John Githongo, the veteran anti-corruption crusader. “They are failing because there is no will.

The judges know who is powerful and who is not. They know which cases will make their careers and which will end them. And so they act accordingly. They dispense justice selectively. The small fish are fried; the big fish swim free. This is not a justice system. This is a system of injustice.”

So what is to be done? "The answer is both simple and difficult. The Judiciary must act. The Chief Justice must convene an urgent meeting of the Judicial Service Commission to address the abduction crisis. The courts must summon the Inspector General of Police and demand answers," says Wena.

"Judges must be instructed to treat habeas corpus applications with the urgency they deserve. Contempt of court must be enforced, not just threatened. The Judicial Service Commission must conduct a thorough review of judicial conduct in corruption cases and take decisive action against judges who are found to be acting under influence or out of fear."

The family of Abshir Ahmedsadak Abdi is still waiting. His colleagues are still marching. The court order remains unenforced. And the question hangs over the Judiciary like a verdict waiting to be delivered: will it be the guardian of the Constitution, or the gatekeeper of impunity?