Exactly one year ago, President Uhuru Kenyatta received a letter from Chief Justice David Kenani Maraga at the height of an already strained relationship between the two, ending any hope of reconciliation.
Justice Maraga, now retired, advised President Kenyatta to dissolve Parliament over its failure to enact laws on fair gender representation in elective and appointive positions.
The Constitution requires that not more than two-thirds of members of all elective and appointive positions shall be of the same gender, and that Parliament will enact laws to ensure this rule is met.
But since the Constitution was adopted in 2010, lawmakers have done little to enact legislation on fair gender representation.
In his letter, Justice Maraga said that multiple court cases on the gender issue had come to the same conclusion – the National Assembly and the Senate must be dissolved for slacking off on the two-thirds gender rule.
Justice Maraga’s advisory sparked a series of court cases, whose fate now lies with the Court of Appeal.
This Friday, appellate judges will determine whether the High Court can proceed to issue a judgment on 10 petitions filed in response to the advisory.
If both Houses had been dissolved, in line with decisions in six separate petitions, that would have sent elected legislators back home to seek votes afresh.
Within a few days of Justice Maraga’s advisory, petitions started flooding the courts.
First to strike were Leina Konchellah and Mohsen Abdul Munasar, who sought to stop President Kenyatta from heeding Justice Maraga’s call.
The Kenya Human Rights Commission, the Law Society of Kenya, the Federation of Women Lawyers (Fida), activist Okiya Omtatah, Margaret Toili, Fredrick Mbugua, Stephen Owoko, John Wangai, Bernard Aoko and David Sudi would file 10 other petitions, some supporting Justice Maraga’s advisory.
All the cases were consolidated into one petition.
Justice James Makau on September 30, 2020 directed that the files be transferred to Deputy Chief Justice Philomena Mwilu to empanel a bench of five judges who would determine the consolidated cases.
As Justice Maraga was the main respondent in the petition filed by Ms Konchellah and Mr Munasar, he could not be the one to appoint judges to hear the cases.
In October last year the National Assembly and the Senate filed another petition challenging Justice Maraga’s advisory on the grounds that he went beyond his mandate and that dissolving both Houses would paralyse the national and county governments.
On October 15, Justice Mwilu appointed five judges to hear the disputes - justices Lydia Achode, Pauline Nyamweya, George Odunga, James Makau and Anthony Ndung’u.
Just a day later, Parliament sued to challenge Justice Mwilu’s powers to appoint the bench, arguing that the files should have been forwarded to Justice Maraga instead.
On February 18, the five judges dismissed Parliament’s case and ordered that the consolidated cases be prioritised for a hearing.
The judges ruled that there is no specific provision in Kenyan law on how benches are empanelled.
They held that the Constitution requires a purposive interpretation, but that it was necessary for the Chief Justice to formulate rules on how judicial officers are picked to handle cases that require a bench.
Dissatisfied with the decision, Parliament challenged the ruling in the Court of Appeal on March 26, insisting that the Constitution should only be interpreted purposively in instances where the words used are ambiguous or cause confusion.
The two Houses won temporary orders barring the High Court from proceeding with hearing the petitions.
The orders are to last until the Court of Appeal determines Parliament’s application on whether Justice Mwilu had the authority to empanel a bench to hear the petitions on Justice Maraga’s advisory.
Justices Roselyn Nambuye, Wanjiru Karanja and Sankale Ole Kantai granted the orders after Parliament argued that Article 165(4) particularly gives the Chief Justice exclusive authority to empanel benches in cases that require more than one judge.
The LSK has now accused the two Houses of tricking the Court of Appeal into issuing orders without hearing from other parties, and wants the judges to reverse their decision.
LSK president Nelson Havi argues that at the time Parliament sought to stop proceedings at the High Court, there was nothing to suspend because the five judges had finished listening to arguments from all parties.
“The order for stay of further proceedings made on May 28, 2021 is interpreted as stopping the High Court from delivering its judgment," Mr Havi says in court papers."
The order for stay of further proceedings before the High Court was obtained on material non-disclosure and concealment of the interest of the Law Society of Kenya on the matter, and further, of the fact that the proceedings before the High Court had been concluded and there is nothing to stay in the circumstances.”
The High Court case was heard for three days starting on May 3.
The Court of Appeal orders were issued on May 28.
LSK insists that the Court of Appeal orders should be lifted to avoid aiding Parliament in defeating justice.
This Friday, the Court of Appeal will determine whether to lift the orders issued in May.
Should justices Nambuye, Karanja and Kantai lift the orders, their High Court counterparts will be free to deliver their judgment on the cases surrounding Justice Maraga’s advisory.
If the judges opt to keep the orders in force, the High Court will have to await the determination on Parliament’s appeal, even as the tenure of both Houses is about to end with the 2022 General Election.