Court of Appeal and the mystery of presidential advisers' ruling

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This past week has been full of controversy over the circumstances surrounding how the Court of Appeal handled the ruling that gave a temporary relief to the Presidential Advisers whose positions Justice Bahati Mwamuye declared unconstitutional on January 22, 2026. I would really restrain myself on this and even for a moment assume the decision of the court was right, the manner in which the court engages with the principle of transparency and accountability in Article 10 is worrying and at best a recipe to infer a judiciary, rather a court that is muzzled by unseen powers.

First things first, I, like many Kenyans, logged into the Court on  February 23, 2026 since this is a matter of immense public concern, to hear the court of appeal proceedings. The court heard the Attorney General’s application to stay the judgment on an interim basis and declined the same pending the delivery of the substantive ruling on whether to stay the judgment of the High Court which the court set for April 24, 2026. Up to that point, anyone who attended court would agree that the main ruling on stay was set for April 24, 2026.

On a rather unusual urgency and efficiency, the Court of Appeal went ahead on March 13 to issue a 24-page ruling staying the judgment of the High Court. I will not engage with the merits of the ruling which is now public. The fact that the court did this without any notice to all of the parties in the matter is where the mischief is. If indeed the court was so efficient as it appears to be the case, the basic practice is to notify the parties of the change of the date of the ruling.

No litigant in their right mindset can fault a court of law for being that swift in offering service to the public but the court must in the same vein be open and transparent to either the general public or at the very least all the parties involved through a notice informing them that there is a change of date and the decision would come sooner than earlier promised.

On March 14, 2026, a day after the delivery of the ruling, media reports indicated that the Judiciary Spokesperson Paul Ndemo gave a statement clarifying that “on 12th March 2026, the Court, through the Registrar of the Court of Appeal, emailed a Notice of Delivery of Ruling to counsel for the parties. The email notification clearly indicated that the ruling on the application would be delivered on Friday, 13th March 2026 by email."

The media reports that he said the ruling was subsequently transmitted to counsel on record at 12:56 pm on March 13, using the same email addresses previously used to send hearing notices and virtual participation links for the February proceedings, in which all parties took part without raising concerns about communication. Curiously no copy of the said official statement has been issued to the public on the Judiciary official page apart from the media reports.

Let me excuse that. Katiba Institute, the principal petitioner at the High Court through their official page, denounced any such service. And I, like many Kenyans, have publicly challenged the judiciary to settle this serious dent on the credibility of the decision by just sharing a screenshot of the email that served all parties. No such response has been forthcoming. In case it does exist, why can’t the judiciary satisfy the public beyond the statement that shift of dates was not draconian or induced from some ‘dark powers’ up in Persia?

I have argued elsewhere that if the judiciary is more interested in who its critics are and not why it is being criticised, it loses the objectivity to deal with the issues raised. A judiciary that is defensive rather than proactive in terms of communication strategy will always be caught off guard and trail back in ‘managing the situation.’ We are defenders of judicial independence but not when the judiciary fails the accountability and transparency test.

In this era of digital journalism, the judiciary should always be on guard to present evidence as a counter to public concerns. Statements without more mean nothing to the public. All the judiciary would do is to present a preface of the said service and not race up to dismiss the concerns via an alleged statement which was itself not publicly availed. 

In many matters, like the Captain Kung’u dispute which sparked an online concern, the judiciary managed through posting of records. This was no different. It failed miserably and I must state so without mincing words. When the judiciary is called to accountability, justified and objective criticism should be a welcome move otherwise the words of Bilawal Bhutto would ring true when he lamented that "too many of us had to suffer at the hands of judiciary so independent it often acted independently of both the basic principles of jurisprudence and the very constitution it swore to uphold and protect".

Apart from the isolated baseless attacks on the judiciary, the judiciary should not wear the combat mode where all criticism is ‘war-met’ with general and unconvincing explanations wich no evidence offered. One screenshot ye Court of Appeal and this would be over!