YEAR ENDER: Major cases Ruto won and lost in 2023

In life, you are bound to win just as you are to lose and in his first year and some months in office, President William Ruto has been through both.

Since occupying the office in September 2022, the Ruto-led administration has been on the defending/appellant side of various legal battles.

This is owing to the presence of critics of Ruto's commitment to the Bottom-Up Economic Transformation Agenda.

So far, the President has won some and lost a few cases. Here is a summary of the same:

The Finance Act

The Finance Act, which aimed at raising the Sh3.6 trillion budget for the Financial Year 2023/24, was signed on June 26, 2023, by President Ruto.

This was after the National Assembly approved tax measures.

The act included, among others, the 1.5 per cent Housing Levy which received harsh criticism from leaders and Kenyans alike, including Busia Senator Okiya Omtatah who moved to court challenging the law.

A petition was presented before then Milimani High Court Judge Mugure Thande who ordered the State not to implement the law until further directions were given.

In June 2023, Justice Thande suspended the act's implementation saying petitioners had cited several grounds on which they claimed that the new law is unconstitutional.

When the court convened again on July 10, the Judge declined to lift orders staying the implementation after the government pleaded for the same saying there is bound to be a crisis at the National Treasury.

She said the state had not demonstrated to her satisfaction grounds to warrant the setting aside of the orders of June 30.

"The petitioners had raised several grounds on which they claimed that the Finance Act is unconstitutional and my view is that were the court to set aside conservatory orders, the petition will be rendered a mere academic exercise," Thande ruled.

This prompted the government to move to the Court of Appeal, with Treasury CS Njuguna Ndung'u arguing that the government stood to lose approximately Sh211 billion in the current financial year.

After deliberation, a three-judge bench of the appellate court lifted the suspension placed on June 30, pending the determination of an appeal filed by Ndung’u.

Justices Mohammed Warsame, Kathurima M’Inoti and Hellen Omondi ruled that the Finance Act had a life span of 90 days beyond which the next budgetary cycle was to be set in motion.

"We have no doubt in our mind that the Finance Act and the Appropriation Act are interdependent," the judges said.

"While the former provides for the generation of the funds, the latter provides for the expenditure. There can be no expenditure where the mode of generation of the funds has not been provided for."

Following the lifting of the freeze, the government implemented provisions of the Finance Act in August.

It included backdating the 1.5 per cent housing levy from employees' salary to July 1 when the Act was originally supposed to take effect.

Aggrieved, Omtatah moved to the Supreme Court arguing that it would be impossible to undo the damage caused by the implementation of the Finance Act which they said subjected Kenyans to an unconstitutional tax regime.

Omtatah argued to the apex court that the Court of Appeal lacked jurisdiction to interfere with the orders that the High Court issued.

"Unless the Court of Appeal's ruling and orders made on July 28, 2023, is suspended, the hearing and determination of the amended petition by a three-judge bench in the High Court will be a mere academic exercise," Omtatah said.

He also argued that the bill never passed through the Senate for deliberations as is required by law making the Act illegal.

The Supreme Court bench however dismissed the appeal arguing it was filed out of time.

"The four sets of written submissions filed out of time by the applicants on August 15, 2023, on the court's online platform are hereby struck out and the applicant's notice of motion dated August 5, 2023, is hereby dismissed," the bench said in a ruling delivered on Friday, September 8.

All the Supreme Court judges led by Chief Justice Martha Koome, Deputy CJ Philomena Mwilu and judges Mohamed Ibrahim, Smokin Wanjala, Njoki Ndungu, Isack Lenaola and William Ouko heard the petition.

On November 28, a three-judge bench appointed by Chief Justice Martha Koome declared the housing levy, housed in the act as unconstitutional.

Judges Lawrence Mugambi, Christine Meoli and David Majanja(presiding) ruled that the levy was discriminatory since it imposed taxes on salaried Kenyans alone and excluded those working in the informal sector.

They however said salaried Kenyans will have to continue paying it until January 10, 2024. This was after granting stay orders sought by the state.

"An order of stay be is hereby issued staying the effect of this judgement issued today November 28, 2023, pending the filing of a formal application for the stay of conservatory orders in the Court of Appeal," Judge Majanja ruled.

The Chief Administrative Secretaries (CAS) Offices

On March 16, President William Ruto nominated 50 CASs for the position against 23 vacancies announced by the Public Service Commission.

The 50 were nominated from a list of 240 shortlisted candidates.

Their appointment was however put on hold after the Law Society of Kenya and two others challenged Ruto's move because the law only allowed him to appoint 23 CASs rather than 50.

The petitions presented in court included those of the LSK, Katiba Institute, activist Eliud Matindi and Multi-Touch International asking the court to quash the appointments.

They also contended that the 50 CASs were sworn into office without the approval of the National Assembly as required by law.

This is after the house declined to approve the list, arguing that there was no law requiring Parliament to vet CASs.

In justifying the appointments, Ruto said he needed the CASs to discharge his mandate, adding that every county was represented in the hiring, which also took gender balance into consideration.

The High Court then issued orders barring the CASs from assuming office pending the hearing and determination of the petition challenging their appointment process.

In the ruling delivered by Lady Justice Hedwig Ong'udi, the court also barred the appointees from earning a salary, remuneration, and any benefit pending the conclusion of the suit.

On July 3, Ruto was dealt a blow after a three-judge bench termed the creation of the 50 CASs unconstitutional.

The High Court judges found that the law was not complied with in the establishment of the said office.

In the majority decision, Justices Kanyi Kimondo and Ali Visram said it was not the intention of the framers of the constitution to have 50 CASs deputise 22 Cabinet Secretaries.

The bench agreed with the petitioners in the case that there was no public participation regarding the additional 27 posts.

"The sequence and procedure leading to the additional 27 posts did not adhere to public participation. The process didn't meet the threshold," the judges ruled.

This means the government must restart the process or drop the idea of it all.

Shakahola probe team

In another miss to the President, the High Court in May issued an order suspending his decision to establish the Commission of Inquiry to probe the Shakahola deaths.

High Court Judge Lawrence Mugambi noted that the Senate and the National Police Service were already probing the same and were using public funds and resources.

"Is it in the public interest to allow the Commission of Inquiry to start its sitting at the expense of the public before the resolution of the constitutional challenges presented. My answer is that it is not," Judge Mugambi said.

The case had been filed by Azimio la Umoja One Kenya Alliance, accusing Ruto of undermining the authority of the Senate considering that it had already formed an ad-hoc committee chaired by Senator Danson Mungatana.

It asserted that only Parliament could establish a subordinate court or an independent tribunal through an Act of Parliament.

The Commission was led by Court of Appeal Judge Jessie Lessit.

Its members included Lady Justice Mary Kasango, Eric Gumbo, Bishop Catherine Mutua and Jonathan Lodompui. The others are Frank Njenga, Wanyama Musiambu and Albert Musasia.

Ban on logging

The High Court on October 12,  declared the directive by Ruto to lift the ban imposed on logging unconstitutional.

Ruto lifted the six-year ban on July 2, during a visit to Molo, Nakuru County.

The Environment and Land Court however found that the directive did not follow the required procedure by involving public participation.

It added that Ruto acted on the premise of court proceedings and revoked the same, noting that there was no evidence of public participation before the consent.

"A declaration be and is hereby issued that the lifting of the moratorium on logging activities was not by the President, but by the consent of the parties in Nyeri and Meru High Court, which lacked public participation and therefore, unconstitutional, null and void," Judge Oscar Angote ruled.

In a win, the court ordered that the 5,000 hectares of mature and over-mature forest plantation trees that have been identified by the Multi-Agency Oversight Team to be harvested.

Police deployment to Haiti

High Court Judge Chacha Mwita on November 16 said the constitutionality of the deployment of officers to Haiti will be determined on January 26, 2024.

The judge had on October 24, extended orders stopping the deployment of police officers to Haiti for a peacekeeping mission.

In the case, Thirdway Alliance party leader Ekuru Aukot sued  Ruto and his administration in a bid to block the peacekeeping mission that will see the deployment of at least 1,000 police officers to the gang-ridden nation.

He faulted Ruto for planning to deploy police officers outside Kenya at a time when the force has been unable to curb tribal violence in Lamu County, where members of one community have been targeted for death.

He argued that Kenya has not ratified any law or treaty to allow the deployment of police officers outside the country.