Over the last 30 days alone, the courts have slammed the brakes on at least four key projects of the Ruto administration, triggering a legal and financial crisis within government.
Some have been declared unconstitutional and discriminatory, biased.
The latest order against the government was issued on Tuesday when the High Court suspended the issuance of new digital IDs
The decision came just a day after the High Court also temporarily stopped the sale of 11 parastatals, including Kenya Pipeline and Kenya Power.
Last week, the courts declared the Housing Levy unconstitutional and temporarily blocked the rollout of the Social Health Insurance Fund.
Housing and health are at the heart of Ruto's bottom-up economic model.
LSK president Eric Theuri told the Star on Tuesday that the injunctions point to Kenya Kwanza’s little regard for the rule of law.
“It means that in the face of it, Kenya Kwanza has little regard for the rule of law, much as they claim compliance with the statutes,” Theuri said.
“The fact that they have ignored legal advice is the reason the courts have shocked them. They are preaching water and drinking wine.”
The court ruling may poison Ruto's relationship with the judiciary, which has been rosy since his election.
Lamu East MP Ruweida Mohamed termed the court orders a political ploy to sabotage Ruto's agenda
"It is all politics at play so that his key projects do not see the light of the day. The critics know very well that the impact of such projects will be huge as they directly impact the lives of our people," she told the Star.
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.
Azimio 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.
Some of the court decisions have a negative impact on the deals Ruto has with external financiers.
For instance, the sale of state-owned enterprises, which was among the conditions set by the International Monetary Fund (IMF) to extend credit to Kenya, remains suspended.
Justice Chacha Mwita, in a case filed by opposition leader Raila Odinga’s ODM party, held that the case raised substantial constitutional and legal issues.
In this regard, the sale of among others the Kenya Pipeline Company, New KCC, Kenyatta International Convention Center, National Oil Cooperation, Kenya Seed Company and the Kenya Literature Bureau cannot proceed.
This is the same for the planned sale of Mwea Rice Mills Western Kenya Rice Mills, Numerical Machining Complex, Vehicle Manufacturers Limited and Rivatex East Africa.
Just last Tuesday, the High Court held that the housing tax was unconstitutional; hampering Ruto’s affordable housing agenda.
Ruto has also suffered a setback in the ruling that suspended the deployment of police officers to respond to the uprising in Haiti.
High Court judge Chacha Mwita on October 24 said the deployment of officers to Haiti will be determined on January 26, 2024.
In the case, Thirdway Alliance party leader Ekuru Aukot sued President Ruto and his administration, saying Kenya has not ratified any law or treaty to allow the deployment of police officers outside the country.
Parliament approved the deployment of 1,000 police officers to Haiti after a proposal by the Cabinet, which followed a call by the UN Security Council.
Ruto’s plans to streamline health insurance have also run into trouble amid court injunctions stopping the implementation of the laws anchoring the plan.
The High Court suspended the implementation of three laws until a case challenging them is heard and determined.
They include The Social Health Insurance, Primary Health Care Act and the Digital and Digital Health Act – key legal instruments for rolling out the social health insurance scheme.
In the orders issued last Monday, Justice Mwita said the implementation will wait until February next year.
The orders were issued following a case lodged by activist Joseph Enock, arguing that the Social Health Insurance Act, 2023 is unconstitutional.
LSK’s Theuri said the court orders should be a wake-up call to the government to ensure things are not done in a rush.
“They need to be more keen on ensuring things are well thought out and are executed in line with the law. When given advice, there has been a tendency for them to ignore it, unless it is in agreement with their plan,” he said.
Ruto’s hands have also been tied in respect to the hiring of Chief Administrative Secretaries, affecting his key allies.
The courts made a declaration that the establishment of 50 CAS positions and appointments was unconstitutional.
A three-judge bench that determined the matter said it was not the intention of the framers of the 2010 Constitution to have 50 CASs to deputise 22 Cabinet Secretaries.
They said the creation of a similar office to the assistant minister now in the name of CAS cannot be created in the manner in which Ruto and the PSC proceeded.
But for Kenya Kwanza backers, the court decisions are ‘signs of a working democracy’.
Kitui East Mwengi Mutuse, who is also the Justice and Legal Affairs committee vice chairperson, said the rulings were healthy.
“It is very healthy for a democracy and speaks to the independence of institutions. It means the executive can administer as MPs make laws and courts interpret the same,” he said.
Mutuse played down the injunctions, saying most were conservatory, “hence is just the beginning of the legal process.”
“Many of the orders are ex parte. We will explain our side of the story and we hope to convince the courts that what is done is within the law and in the best interest of the people of Kenya,” he said.
Mutuse maintained that many of the initiatives, such as those on health, are transformative and actualise the right to health.
"It is possible for people not to understand, especially when you’re doing many things. It doesn’t mean you are wrong,” the MP said.
On the digital ID cards matter, Justice John Chigiti ordered that the government should not register persons or issue new-generation cards following a case by the Katiba Institute.
The NGO challenged the Maisha Namba project on the grounds there is no legal basis for its rollout. It was to replace Huduma Namba.
The CS Kithure Kindiki-led Interior ministry sought to introduce a digital card, a unique personal identifier and a national master register.
On the housing levy, a three-judge bench of Justices David Majanja (presiding), Christine Meoli and Lawrence Mugambi declared the housing levy unconstitutional.
The court upheld its decision last week, but gave the government until January 10, pending any other orders from the appellate court.
The judges said the levy violates the principle of taxation as contained in the Finance Act 2023. It called it unconstitutional and discriminatory against those in formal employment.
They held that since it was making a distinction between formal and informal sector workers, the levy created unequal and inequitable principles.
They also held that the Lands Cabinet Secretary usurped Treasury powers in asking the Kenya Revenue Authority to collect the tax on behalf of the government.
"The introduction of the housing levy, which caused an amendment to Section 84, lacked a comprehensive legal framework and is in violation of Articles 10 and 201 of the Constitution," Majanja said.
The government was also dealt a blow after the High Court suspended the decision to import 125,000 tonnes of edible oils.
This was floated in November last year to stabilise food prices after a prolonged drought.
Kenya Kwanza also suffered a setback in the decision to set up the commission of inquiry to probe the Shakahola deaths following a petition filed by Azimio la Umoja.
The courts also quashed Ruto’s appointment of Bernice Lemedeket as Principal Administrative Secretary, or accounting officer of the National Police Service.
Nakuru-based Dr Magare Gikenyi challenged the appointment.
