Unholy trinity: Kenyans left alone as three arms of government close ranks

President William Ruto has already put a firm grip on the legislature through the broad-based government arrangement, but favourable decisions from the courts indicate a growing unholy alliance between the three arms of government.

Last week, when he hosted a joint UDA/ODM Parliamentary Group (PG) meeting at State House, he gleefully told the gathering that “if the broad-based government has decided, then Parliament has decided.”

Before making that weighty statement, he had also announced that a broad-based mediation committee of MPs will soon be constituted to shepherd key government-supported or sponsored bills in both the Senate and the National Assembly.

“We know that there has been back and forth between the two Houses. We will be recommending in this PG that we have a broad-based negotiating team that will sit with both Houses of Parliament, because if broad-based decides, Parliament will decide,” said Ruto.

He added: “We have the numbers to drive business through both Houses. The broad-based mediation committee will assist us in all the items being presented for legislation in Parliament by the Ten-Point Agenda committee.”

It is, however, this sheer confidence in favourable decisions by Parliament to support the Executive, coupled with favourable decisions from the courts, that reeks of an unholy alliance between the three arms of government.

The Sunday Standard has established that the groundwork for the elite bargain between different arms of government began in August 2025, when 14 people met in a conference room at Serena Hotel in Mombasa.

By the end of the 45-minute meeting, some key decisions were reportedly made.

Sources privy to the details reveal that representatives of the Legislature requested Chief Justice Martha Koome to help save the Sh55.9 billion NG-CDF fund, which was facing a constitutional challenge in the courts.

In return, Parliament allegedly promised to approve increases to judges' retirement benefits and travel allowances.

“Save CDF, get your pensions,” is how one source summarised the deal.

While The Standard could not establish any direct link between the discussions and subsequent actions, about six months later, in February 2026, the Court of Appeal overturned a High Court ruling that had declared NG-CDF unconstitutional, handing MPs back their allocations.

Parliament, for its part, passed the second reading of the Judges' Retirement Benefits Bill on November 27, 2025.

On Monday, March 9, the President assented to the bill after it was approved by MPs.

Triggering the closing of ranks, it emerged, was an August 2022 Supreme Court ruling that struck down the original CDF Act of 2013.

The apex court ruled that CDF was unconstitutional on two grounds: it turned MPs into administrators, violating the principle of separation of powers, and it also created an effective “third level” of government, undermining devolution and threatening to usurp the powers of county governments.

Parliament then enacted the NG-CDF Act 2015 and further amended it in 2022 and 2023 in an attempt to cure those defects, but the courts were not satisfied.

In a significant ruling on September 20, 2024, the High Court declared the NG-CDF Act, 2015 unconstitutional, finding that it still violated the principle of separation of powers and that the Senate had not been involved when the law was enacted.

The court ruled that MPs could not be involved, directly or indirectly, in managing development projects at the constituency level.

All NG-CDF activities, including funding for ongoing projects, were ordered to cease by June 30, 2026.

MPs erupted in outrage. Majority Leader Kimani Ichung'wah termed the decision “more of a political judgment than a legal judgment,” while Minority Leader Junet Mohamed declared that “the Judiciary is living in an ivory tower.”

On February 6, 2026, the Court of Appeal set aside the High Court decision.

It held that the NG-CDF Act, 2015 does not violate the devolved system of governance or public finance principles.

The ruling was a major win for MPs who had long defended the NG-CDF as a practical vehicle for delivering national government projects in constituencies.

It emerged that the horse-trading might have happened during the 3rd Leadership Retreat of the National Assembly, held at Serena Hotel on August 21–22, 2025.

Officially billed as an exercise in institutional bridge-building, the Mombasa retreat carried reassuring themes.

On day one, the theme was “Renewing Leadership Synergy".

On the second day, when the Judiciary joined, the theme was “Social Transformation through Institutional Comity".

At the heart of the alleged deals lies a constitutional paradox. As Chief Justice, Martha Koome wears three powerful hats: She is President of the Supreme Court and a sitting judge in the nation’s final court of appeal; she is head of the Judiciary as an arm of government; and she chairs the Judicial Service Commission (JSC), the body that manages judges’ welfare, discipline, and remuneration.

Those roles are constitutionally distinct. One is adjudicative, another administrative, and the third institutional. In her JSC capacity, advocating for judicial resources is legitimate—even mandatory.

But what multiple sources described as having happened in Mombasa allegedly crossed the red line: Adjudicative authority over live constitutional litigation became entangled with negotiations over financial benefits.

“It is one thing to lobby for judicial funding,” said a senior constitutional lawyer consulted for this investigation.

“It is another thing entirely if a live constitutional dispute becomes part of the conversation around that funding. That collapses the firewall between judicial independence and political horse-trading.”

No written agreement has surfaced, and no formal quid pro quo has been documented.

The Standard reached out to Chief Justice Koome, but her communications advisor Dr Joan Mutua immediately dismissed the claims.

“This is total fiction. There is no way the CJ can engage in a discussion on a matter that is already before a court of law,” said Dr Mutua. “This is an attempt to tarnish the office of the Chief Justice, the office holder, and the Judiciary at large. This is pure fiction.”

Efforts to get a comment from parliamentary Budget Committee chair Samson Atandi were unsuccessful as he did not answer calls.

However, a member of the committee who was asked about the session said: “Drop that discussion. How does that help you? You want to bring disrepute to the Judiciary.”

Calls to members of the Justice and Legal Affairs Committee also went unanswered.

Multiple individuals who attended the meeting or were briefed on the Mombasa retreat described an atmosphere of transactional signalling—private discussions in which the politically explosive NG-CDF case and the judges’ benefits bill were raised in close proximity, with an implicit understanding that one would grease the wheels for the other.

The government has, in the recent past, won several major cases in the courts.

The latest was Friday’s Court of Appeal decision that restored President William Ruto’s 21 presidential advisers.

A three-judge bench comprising Justices William Korir, Hedwig Ong’udi, and Samson Okong’o granted a stay of execution of the earlier High Court judgment issued on January 22, 2026.

In January, Justice Bahati Mwamuye had ruled that the appointments made by the President were unconstitutional, barring the government from processing salaries or benefits for the advisers.

The Attorney General moved to the Court of Appeal seeking a stay on that judgment pending the hearing and determination of the intended appeal.

On Friday, the judges noted that declining to suspend the judgment could create a vacuum within the advisory structure that supports the President’s day-to-day work.

Controversy surrounded the ruling, with the petitioner, Katiba Institute, saying they had not been notified in advance. Their advocate, Joshua Malidzo, said the last scheduled date had been April 24, 2026.

On Saturday, the Judiciary explained the timeline behind the Court of Appeal ruling on the stay of the High Court decision.

It said the ruling on the Attorney General’s stay application was emailed to the parties on Friday after an earlier notice had been issued on March 12.

It was therefore a good week for President Ruto, coming after several controversial bills and laws recently went through Parliament despite strong opposition from Kenyans and other stakeholders during public participation forums.

Other pieces of legislation that were hit by turbulence but survived the floor include: The National Infrastructure Fund (NIF) Bill in Kenya, signed into law in March 2026, aims to mobilise Sh5 trillion over 10 years to fund major infrastructure projects like the JKIA expansion, bypassing traditional debt. The bill received significant opposition and faced legal challenges.

Critics and opposition figures raised concerns over its potential to become an open avenue for corruption, citing lack of parliamentary oversight, high risk of increased borrowing, and possible conflicts with constitutional financial procedures.

It, however, finally made its way through Parliament, where the Broad-Based side pushed it forward.

Earlier this month, the High Court lifted an injunction on the Fund just hours after MPs passed the NIF Bill.

On March 5, 2026, Parliament passed the National Infrastructure Fund Bill in a late-night sitting that dramatically altered the legal landscape overnight.

The following day, the courts lifted the conservatory orders after it emerged that the National Assembly had passed the NIF Bill.

In orders issued on December 24, 2025, the court had barred the government from taking any steps to operationalize the fund, following petitions that argued the fund was being established outside constitutional parameters and in secrecy. These orders were overturned after Parliament’s overnight action.

The ruling breathed life into the ambitious fund and opened the door for the State to operationalize a mechanism designed to mobilise massive domestic and private capital for infrastructure development.

The government also managed to overcome court battles seeking to stop the fund. Subsequently, President William Ruto assented to the NIF Bill on March 9, 2026, signalling a major shift in Kenya's approach to infrastructure financing.

Other controversial bills that have seen the light of day include the Government-Owned Enterprise Bill 2025, which introduced sweeping reforms to state corporations and was passed amid concerns over a lack of quorum and chaotic proceedings.

The Computer Misuse and Cybercrimes (Amendment) Bill 2024, which grants the government broader powers to monitor and restrict online accounts, also raised free speech concerns.

Also passed amid acrimony were the Privatization Bill 2025, which allows the sale of state-owned enterprises without requiring fresh parliamentary approval, and the National Land Commission (Amendment) Bill/Land (Amendment) Bill 2025, which reopens reviews of land titles since 2010—a move critics fear could facilitate political land grabs.

The Virtual Asset Service Providers Bill 2025, which establishes a framework for taxing and supervising cryptocurrencies, also faced significant opposition but sailed through, just like the Roads Amendment Bill 2025, which seeks to restructure road authorities. This bill is often tied to increased fuel levies and the raising of the Road Maintenance Levy.