Over the last four days alone, the courts dealt the new administration a staggering blow — first suspending the tax laws and then quashing the appointment of 50 Chief Administrative Secretaries.
The tax laws contain revenue-raising measures that Ruto says he will use to implement his development blue-print dubbed the bottom-up economic model.
The 50 CASs, mostly political rejects, are Ruto loyalists whose backing is critical in helping the President maintain grassroots support.
Immediately after the judgment, a section of Ruto allies began sending signals that their dalliance with the Judiciary could be over.
Nandi Senator Samson Cherargei said “the Judiciary has gone rogue”.
He said despite Ruto's budgetary increment to the bench, graft and ineptitude continue unabated.
"The Judiciary has gone rogue by ruling that creation of CASs positions is unconstitutional without considering the merits of the case,” Cheragei said.
“In the financial year 2023-2024 Judiciary received an additional Sh4 billion above their normal budget but they are a continuation of cases backlog, corruption and ineptitude in the dispensation of justice by the Judiciary."
Attorney General Justin Muturi over the weekend termed as “strange” orders that slammed brakes on the Finance Bill, 2023.
Despite appealing the ruling, the government has declined to rescind the increment on fuel prices amid public outcry.
The law triggered a sharp increment in fuel prices with petrol now selling at Sh195.53, a new high in Kenya.
“It is true that the Judiciary must be independent but it is also important that the Judiciary becomes alive to what we call public interest especially when courts are pronouncing themselves on certain key matters,”Prime Cabinet Secretary Musalia Mudavadi criticised the court on the Finance Bill.
Ruto has repeatedly asserted that his administration will allow the Judiciary to exercise its independence.
He has however remained tight-lipped on the fuel prices as activists threaten to sue his government for contempt of court.
When he took office after the Supreme Court upheld his election win, Ruto became cosy with the Judiciary and immediately appointed six judges rejected by his predecessor Uhuru Kenyatta.
“I thank the Judiciary, and the Supreme Court in particular, for staying strong as the shining beacon of constitutionalism and the rule of law even in the most daunting of circumstances – and you know what I mean,” he said after the apex court upheld his election
Azimio even claimed Ruto had "captured" the Judiciary.
But even before the election decision, the Judiciary had handed Ruto sweet victory when it roundly rejected the BBI process, in what is believed to have changed the political equation.
However, despite what critics initially said was an unhealthy cosy relationship, the courts appear determined to prove their independence.
The High Court suspended formation of a commission of inquiry into the Shakahola cult deaths that Ruto had appointed.
Judge Lawrence Mugambi ruled it would not be in the public interest for the commission to start its sittings when Kenyans know the Senate and the national police are probing the Shakahola deaths.
All these bodies, the judge noted, are using public resources.
The judgment came only four days after the Court of Appeal upheld a lower court’s decision to ban the importation of genetically modified organisms
Ruto had lifted the ban barely a month after he was sworn into office.
The government, through Attorney General Muturi, appealed the High Court’s decision that sustained the ban on GMOs.
Both cases were filed by Raila Odinga’s Azimio la Umoja Coalition.
Vihiga Senator Godfrey Osotsi cautioned that it is too early to celebrate judicial independence, arguing no sane court can turn a blind eye to the blatant abuse of law by Kenya Kwanza administration.
“If there is blatant violation of the law, the Judiciary has no reason to agree with the violation of the law. Then their hands are tied even if they were in bed with the state and the same state is blatantly violating the law,” he said.
The Judiciary was a thorn in the flesh of former President Uhuru Kenyatta’s regime.
This triggered a standoff, with Uhuru rejecting some the judges who had been promoted to the appellate court by the Judicial Service Commission.
Ruto, then Deputy President, said the move was illegal and slammed Uhuru for disobeying court orders.
In the Monday ruling, a three-judge bench found that the entire 50 CASs created by the President and the Public Service Commission are unconstitutional.
Whereas there was some public participation on the initial the 23 posts, the bench said there's was no such participation regarding the additional 27.
"The initial proposed number for the office was 23. It's discernible the process undertaken by PSC was in reference to the 23. On the flip side the sequence and procedure leading to the additional 27 posts did not adhere to public participation," the bench said.
Justice Ong'undi dissented, arguing that the establishment of the CAS office in regard to the 23 was constitutional.
The majority, being Kimondo and Visram, said they were not satisfied that the newly created office of CAS met the threshold or was done in accordance with the law.
The two in analysing the created office observed that it falls between that of the CS and PS. Those two officers, the judges said, undergo vetting and approval by Parliament but the CASs were appointed without passing though Parliament.
"We are aware that not every holder of high and state offices undergoes parliamentary approval but the problem is that the CAS is assistant to the CS and from the job description, the CAS will be on a higher job group than that of the PS," they said.
The court said there is no doubt that the Constitution grants Ruto power to create the office but the same requires approval of the National Assembly.
"We are not satisfied that the newly created office of CAS met the threshold or was done constitutionally," the bench decided.
They agreed with the petitioners that the creation of the offices would come at a substantial cost to the public. They held that it was not the intention of the framers of the Constitution to have 50 CASs to deputise 22 Cabinet Secretaries.
Regarding public participation, the bench said it was incumbent upon PSC to prove public participation covered all the posts.
They said it was evident PSC failed in its mandate because the process leading to the establishment of the extra 27 posts was unconstitutional.
