THE SUPREME COURT OF KENYA @ 12 JURISPRUDENTIAL CONFERENCEThe Supreme Court@12 Conference brought together distinguished leaders, Judges, legal professionals, and government officials to commemorate the Supreme Court of Kenya’s twelve-year journey since its establishment under the 2010 Constitution. Held at the Supreme Court grounds, the event celebrated the Court’s achievements, reflected on its challenges, and explored pathways to further strengthen its role in Kenya’s democratic and judicial landscape.
The Supreme Court of Kenya put together a documentary, offering an exclusive behind-the-scenes look at its journey. Featuring insights from Supreme Court Judges and legal practitioners, the documentary highlights the Court’s landmark decisions, milestones, its role in shaping Kenya’s constitutional democracy, and reflections on the future of its jurisprudence.
📺 Watch the documentary here: [Insert Link]
The main objectives of the Conference were as follows:
- Demystifying the Court’s role and mandate;
- Introspecting and reflecting on the Court’s journey and jurisprudence;
- Providing mentorship for aspiring legal professionals;
- Promoting inclusivity and accountability in the Court’s processes;
- Enhancing understanding of judicial independence; and
- Sharing of best practices/strategies with respect to development of jurisprudence, court operations, administration, employment of technology in court processes, effective and efficient service delivery.
Conference Overview
The conference unfolded in three key phases:
- Build-up Activities: These included a moot court competition featuring various law schools in Kenya and a Town Hall Engagement with Judges, Judicial Officers and legal practitioners.
- Main Conference: This served as a platform for in-depth discussions on the Supreme Court’s jurisprudence in landmark rulings. Topics covered included human rights, presidential elections, constitutional amendments, land law, family law, devolution, and the transition from the former to the current constitutional framework.
- Post-Conference Activities: Supreme Court judges delivered public lectures at various law schools, furthering the discourse on key legal and judicial matters.
BUILD UP ACTIVITIES
MOOT COURT COMPETITION
Supreme Court Moot Court Competition took place on 31st October to 2nd November 2024 with the award ceremony happening on 6th November, 2024 at the closing of the Conference.
The competition’s primary purpose was to demystify the Supreme Court’s roles, mandates, and objectives for the public while also broadening public understanding of its jurisprudence. It provided participants with hands-on experience in legal argumentation and decision-making, underscoring the Court’s commitment to cultivating the next generation of legal minds.
The competition was held in four (4) courts. Each court comprised three Judges; each bench had at least a Senior Principal Magistrate and Principal Magistrate. Gender equality of the bench was also observed with each bench comprising not more than two-thirds of the same gender. The results were based on the average of the total points awarded by the Judges to the three oralists in every team. The Preliminary rounds comprised sixteen (16) teams. The winners at this stage were chosen based on the average points. Eight teams proceeded to the Quarter Finals. The Quarter Finals and Semi-Finals were a knock-out stage and the best teams from every court qualified for the next round.
The Finals were held in open court, with the two finalist teams appearing before a five-judge bench of the Supreme Court Judges awarded points to the competitors. The award ceremony was held on the last day of the Main Conference. The Supreme Court committed to holding the Moot Court Competition annually.
Moi University Students receiving award for 1st Position from President East African Court of Justice (EACJ), Hon. Justice Nestor Kayobera
The University of Nairobi students receiving award for 1st Runner-Up from Chief Justice of Eswatini, Hon. Justice Bheki Maphalala
Africa Nazarene University students receiving the award for 2nd Runner-up from Chief Justice of Liberia, Hon. Lady Justice Sie-A-Nyene Gyapay Youh
Jomo Kenyatta University of Agriculture and Technology Law School receiving the award for best memorials from Chief Justice (Rtd) Prof. Willy Mutunga
Winjoy Gitonga receiving the award for best female oralist from Chief Justice of Eswatini, Hon. Justice Bheki Maphalala
Marvis Ndubi receiving the award for best male oralist from President East African Court of Justice (EACJ), Hon. Justice Nestor Kayobera
THE TOWNHALL ENGAGEMENT
The Townhall engagement was themed Fostering an Open Democracy: An Open conversation on the Supreme Court’s contribution to the Protection of Human Rights and the Civic space.
The engagement was chaired by Prof. Collins Odote and the panelists, including Dr. Fred Ojiambo, SC, Prof. Githu Muigai, SC, Mr. Protas Saende (ICJ Kenya), and Hon. Justice Isaac Lenaola, SCJ, reflected on the Supreme Court’s role in protecting human rights and civic space.
Dr. Ojiambo highlighted the Court’s foundational vision of prioritizing human rights and noted early challenges in jurisdiction interpretation, which evolved to recognize its transformative mandate. Mr. Saende acknowledged the Court’s role in constitutionalism but pointed out gaps in enforcing the Bill of Rights, particularly amid growing threats like surveillance and restricted freedoms. Prof. Githu Muigai critiqued the Court’s shifting interpretive stance, arguing that it had moved from a conservative to an overly liberal approach, especially in cases such as Muruatetu. Justice Lenaola emphasized the Court’s evolving jurisprudence, drawing comparisons to international courts while addressing challenges like cyberbullying, judicial independence, and delays in case resolution. The discussion also explored technology’s dual impact on civic space, the need for judicial decorum, and the role of public participation in governance. Concluding, panelists recognized the Court’s strides in legal precedent-setting but underscored the need for clearer structural interdicts to ensure practical implementation of its decisions.
From left to right, Dr. Fred Ojiambo, SC, Prof. Githu Muigai, SC, Mr. Protas Saende, Hon. Justice Isaac Lenaola, SCJ., and Prof. Collins Odote
The panellists and audience at the Town-Hall Engagement held at the Milimani Ceremonial Hall
THE SUPREME COURT @ 12 MAIN CONFERENCE
Day 1
Opening Ceremony
The opening ceremony was graced by the President of Kenya H.E. Dr. William Samoei Ruto accompanied by members of the Executive and the Governor of Nairobi. The Court was commended for reinforcing democratic principles, constitutional clarity, and the rule of law.
Chief Registrar of the Judiciary, Hon. Winfrida Boyani Mokaya – Opened the celebration by emphasizing the Supreme Court’s role as a learning institution, advocating for a modern court building, and calling for empirical budgeting to address judicial funding challenges.
Governor of Nairobi City County, Hon. Johnson Sakaja – Highlighted the Supreme Court’s role in national stability, proposed Government Square as a venue for presidential inaugurations, and praised the Court’s integrity in making principled decisions.
Judge of the Supreme Court, Hon. Lady Justice Njoki Ndungu – Stressed the need for greater judicial engagement with the public, reflected on Kenya’s constitutional journey, and reaffirmed the importance of checks and balances among government branches.
Prime Cabinet Secretary, Hon. Musalia Mudavadi – Recognized the Supreme Court as Kenya’s final arbiter, commended its role in upholding democracy and combating corruption, and called for stronger institutional frameworks to build public trust.
Chief Justice and President of the Supreme Court, Hon. Martha Koome – Emphasized the Court’s role in safeguarding democracy, interpreting the Constitution with neutrality, and fostering institutional collaboration to strengthen governance.
Deputy President, H.E. Prof. Kithure Kindiki – Applauded the Supreme Court’s advancements in access to justice, proposed integrating “national interest” into decision-making, and called for clearer definitions of institutional independence and interdependence.
President of Kenya, H.E. Dr. William Samoei Ruto – Celebrated the Supreme Court’s transformative impact, praised its role in electoral dispute resolution, and reaffirmed his commitment to supporting judicial infrastructure and excellence.
H.E. President Dr. William Samoei Ruto delivering his opening remarks at the Conference.
H.E. the President Dr. William Samoei Ruto together with the Justices of the Supreme Court and other guests at the Supreme Court @12 Conference
The first session discussed the Journey through the Supreme Court since 2010. Former Chief Justices of the Supreme Court and the current Chief Justice gave their perspective and views on the growth of the Supreme Court from its inception. They discussed the vision of the Court, the early challenges the Court faced, how the Court navigated public expectations in political disputes, the place of collaboration and partnership, and what the future entails for the Court.
Chief Justice (Rtd) Prof. Willy Mutunga, Chief Justice Martha Koome and Chief Justice (Rtd) David Maraga during panel discussion
Prof. Collins Odote, Chief Justice (Rtd) Prof. Willy Mutunga, Chief Justice Martha Koome and Chief Justice (Rtd) David Maraga and Hon. Lady Justice (Rtd) Nancy Baraza after the Panel discussion
The second session on Demystifying Apex Courts: Traditions, Practices and Experiences through the lenses of a Supreme Court Judge comprised Judges from different apex courts. The session was chaired by Hon. Lady Justice Philomena M. Mwilu, Deputy Chief Justice & Vice President of the Supreme Court of Kenya. The panel discussed the unique traditions and practices of apex court and the extent to which certain practices are indigenous to the courts.
Hon. Justice Rizine Mzikamanda, Chief Justice of the Republic of Malawi; Hon. Justice Getrude Araba Torkornoo, Chief Justice of the Republic of Ghana; Hon. Lady Justice Philomena Mwilu Deputy Chief Justice and Vice President of the Supreme Court of Kenya and Hon. Lady Justice Njoki Ndungu, Justice of the Supreme Court of Kenya during the panel discussion
The third session on Navigating Judicial Independence and Accountability in the context of the Supreme Court’s Politically Sensitive Jurisdiction explored the balance between judicial independence and accountability within politically sensitive jurisdictions of the Supreme Court. The session was chaired by Hon. Justice William Ouko, Judge of the Supreme Court of Kenya. The panelists provided insights into the principles, challenges, and potential solutions for maintaining judicial integrity while addressing politically charged cases.
Hon. Justice William Ouko, Judge of the Supreme Court of Kenya; Hon. Justice (Prof.) Oagile Bethuel Key Dingake, Residual Special Court of Sierra Leone and Prof. Kivutha Kibwana, Professor Daystar University, School of Law, and former Governor– Makueni County during panel discussion
DAY 2
The fourth session on Constitution Interpretation delved into the Supreme Court’s decisions in electoral jurisprudence, devolution, public participation and judicial review. It was chaired by Hon. Justice (Dr.) Smokin Wanjala, Judge of the Supreme Court of Kenya & Director General, Kenya Judiciary Academy.
Hon. Justice (Dr.) Smokin Wanjala, Judge of the Supreme Court of Kenya; Dr. Muthomi Thiankolu; Mr. Felix Odhiambo Owour, and Prof. Migai Akech during the panel discussion
The fifth session on Socio-Economic Rights examined the Court’s role in shaping socio-economic rights and its impact on policy and governance. The session was chaired by Hon. Justice Isaac Lenaola, Judge of the Supreme Court of Kenya. The panelists examined what the Constitution sought to address in Article 43, the effective innovative remedies a court can craft, the decisions of the Court on socio-economic rights and the difficulty the courts face adjudicating cases on socio-economic rights.
Hon. Justice Isaac Lenaola, Judge of the Supreme Court of Kenya; Hon. Justice George Odunga, JA and Dr. Mutakha Kangu and Dr. Gautam Bhatia (joining virtually) during the panel discussion
The sixth session delved into Criminal Law Jurisprudence examining landmark decisions of the Court and their impact on the development of criminal law jurisprudence. The session was chaired by Hon. Lady Justice Njoki Ndungu, Judge of the Supreme Court of Kenya.
Hon. Lady Justice Njoki Ndungu, Judge of the Supreme Court of Kenya; Director of Public Prosecutions Mr. Renson Ingonga, Prof. Sarah Kinyanjui, Mr. Waikwa Wanyoike and Hon. Robert Nanima (joining virtually) during the panel discussion
The seventh session discussed the Evolution of Family law in Kenya and the Supreme Court’s Contribution. The session was chaired by Hon. Lady Justice Njoki Ndungu, Judge of the Supreme Court of Kenya. The panel discussed Supreme Court decisions on the rights of children, marriage, divorce, division of matrimonial property law. The plenary was a comparative analysis of the Court’s decisions in other jurisdictions which have also dealt with the challenge of division of matrimonial property and presumption of marriage.
Hon. Lady Justice Njoki Ndungu, Judge of the Supreme Court of Kenya; Hon. Rtd. Lady Justice (Dr.) Nancy Baraza, Hon. Justice Stephen Riechi and the late Ms. Judy Thongori, SC during the panel discussion
DAY 3
The eighth session on Technology and Human Rights: Navigating Emerging Challenges in a Digital Age. It addressed the role of Artificial Intelligence and its interplay with human rights, data protection rights and balancing privacy rights. The session was chaired by Hon. Justice Isaac Lenaola, Judge of the Supreme Court of Kenya.
Hon. Justice Isaac Lenaola, Judge of the Supreme Court of Kenya, Dr. Robert Kiriinya, Dr. Justice Alfred Mavedzenge, Mr. Stephen Kiptinness and Dr. Mugambi Laibuta during the panel discussion
The ninth session acknowledged the Role of Development partners in helping the Judiciary fulfil its mandate. The session was chaired by Hon. Justice Mohammed Ibrahim, Judge of the Supreme Court of Kenya. They discussed how development partners provide financial and technical support in alignment with their own focus areas as well as their collaboration with civil society and community-based organizations to bridge resource gaps, promote accountability, and support initiatives that complement the Judiciary’s constitutional mandate. The panelists gave their experience working with the Judiciary and the impact of the Supreme Court decisions.
Hon. Justice Mohammed Ibrahim, Judge of the Supreme Court of Kenya, Ms. Ann Gitonga, Ms. Julie Wayua Matheka, Ms. Carole Kariuki and Mr. Felix Owuor during the panel discussion
The Chief Justices Forum
The Chief Justices Forum was held on the margins of the Supreme Court @12 Conference. The forum provided an opportunity for the Chief Justices and Heads of delegation to share insights on the unique responsibilities and challenges of leading Judiciaries. Key resolutions included establishing structured platforms for sharing practical experiences to enhance judicial independence, accountability, performance, funding, and public confidence in Judiciaries across Africa and the global South. The forum also committed to developing judiciary financing principles for engaging with executive and legislative bodies, adopting unified approaches to foster respect for Judiciaries, and advancing the rule of law. To sustain collaboration, the forum resolved to create formal structures to enhance collegiality among apex courts, strengthen partnerships, and facilitate cross-jurisdictional peer review practices. These efforts will support access to justice as a shared priority, benefiting all communities within these regions.
Chief Justice and Deputy Chief Justice of Kenya and their counterparts from other jurisdictions during the Chief Justices’ forum
[PLACE PHOTOS SIDE BY SIDE & SHARE THE CAPTION]
Closing Ceremony
Closing Remarks by Hon. Lady Justice Philomena Mwilu, Deputy Chief Justice & Vice President of the Supreme Court – appreciated all participants and emphasized the Supreme Court’s constitutional duty to serve Kenyans.
Closing Remarks by Hon. Chief Justice Emeritus (Prof) Willy Mutunga – urged the Supreme Court to uphold justice, remain open to learning, and safeguard judicial independence.
LAUNCH OF THE SUPREME COURT OPERATIONAL PLAN 2024-2028 & COMMEMORATIVE BOOK
THE LAW LECTURE CIRCUITS
The Multi-Door Approach to the Delivery of Justice: The Kenyan Experience
by Hon. Justice Martha K. Koome, FCIArb, EGH at African Nazarene University ON 18TH November, 2024
You can watch the full lecture here: https://www.facebook.com/share/v/169xXkE6Lt/
The Chief Justice’s lecture was centred on Kenya’s transformation in its approach to delivering justice. The discussion was anchored on Article 159(2)(c) of the Constitution which explicitly mandates courts and tribunals to promote alternative dispute resolution mechanisms, including reconciliation, mediation, arbitration, and traditional methods. She explained that the directive underscores that the delivery of justice extends beyond courtroom litigation, embracing a holistic, people-centered framework, what is now referred to as the multi-door approach to justice delivery.
The Chief Justice indicated that a 2017 Judiciary-led Justice Needs and Satisfaction Survey (JNSS) revealed the alienation many citizens feel from the formal judicial system. Importantly, that the said study validates the alternative dispute resolution mechanisms enshrined in Article 159(2)(c) and affirmed in the Judiciary’s Social Transformation through Access to Justice (STAJ) blueprint as part of the multi-door approach. She went on to discuss three alternative forms of disputes resolution, mediation, Arbitration, and Alternative (Traditional) Justice System (AJS) and how they work within the Kenyan justice system.
Institutional Independence: Reflections on the Supreme Court’s Jurisprudence on Devolution, Constitutional Commissions, and Independent Offices
by Hon. Lady Justice Philomena Mwilu, FCIArb, EGH at Daystar University on 2nd December, 2024
In her address, she underscored the importance of institutional independence within Kenya’s constitutional framework, with a particular focus on the roles of devolution, constitutional commissions, and independent offices. This discussion was situated within the broader context of Kenya’s post-2010 constitutional reforms, aimed at decentralizing power and promoting transparency, accountability, and democratic governance.
The Hon. Deputy Chief Justice expounded on the Supreme Court’s pivotal role in upholding the Constitution’s supremacy, ensuring the integrity of governance structures, and reinforcing the principles of justice, equality, and human rights. By referencing key jurisprudence, she illustrated how the Court has clarified the constitutional architecture of devolution and the interdependence and independence of institutions at all levels of government, as envisioned by the drafters of the Constitution.
These reforms, including the establishment of constitutional commissions and independent offices, were a response to a governance context marked by a lack of transparency and accountability. The Supreme Court’s decisions have recognized the importance of these commissions, ensuring their autonomy and strengthening their capacity to function as intended under the Constitution. The Court’s holistic and purposive approach to constitutional interpretation not only adheres to the law but also addresses the historical and socio-political aspirations of the Kenyan people.
This session also offered students and academics a valuable opportunity to engage with the Hon. Deputy Chief Justice, fostering meaningful dialogue on the Court’s significant contributions to Kenya’s legal and governance systems since the promulgation of the 2010 Constitution.
Recusal of Judges versus the Duty to Sit: A Kenyan Perspective
By Hon. Justice Mohammed K. Ibrahim, CBS at Kenya School of Law to be delivered on 7th March, 2025
The Lecture explored the intricate balance between judicial impartiality and judicial duty, highlighting the doctrines of recusal and the duty to sit. The principle of recusal, rooted in natural justice, ensures judges abstain from cases where their impartiality could be questioned, thus maintaining public confidence in the judiciary. Conversely, the duty to sit compels judges, particularly in courts like the Supreme Court of Kenya, to adjudicate cases unless compelling reasons necessitate recusal. This balance is crucial for ensuring judicial efficiency, especially in cases with quorum requirements, as frequent recusals could impede justice delivery.
He illustrated this tension through key cases, including Raila Odinga & Others v. Independent Electoral and Boundaries Commission & Others (2017) and Gladys Boss Shollei v. Judicial Service Commission (2014), emphasizing that recusal should not be based on unfounded bias allegations. Courts have established guiding principles, including reasonableness in apprehension of bias and the impact of recusal on court functionality. The paper concludes that recusal must rest on objective, reasonable grounds, ensuring justice is both done and seen to be done while maintaining the judiciary’s effectiveness.
Transformative Property Law: Exploring the Emerging Land Law Jurisprudence from the Supreme Court
By Hon. Justice (Dr.) Smokin Wanjala, FCIArb, CBS at Catholic University on 21st November, 2024
You can watch the full lecture here: https://t.co/odencCqrnw
The Lecture highlighted the promulgation of Kenya’s 2010 Constitution introduced transformative property law, which fundamentally reshaped land governance to address historical injustices and promote equitable access, security of tenure, and sustainability. He noted that key legislation, including the Land Act, Community Land Act, and National Land Commission Act, was aligned with constitutional principles to protect marginalized groups, resolve land disputes, and ensure social justice. The Supreme Court has continued to play a pivotal role in interpreting these laws, addressing historical injustices, and balancing individual rights with public interest. Through its landmark decisions, the Court had established frameworks for community land rights, equitable land distribution, and environmental conservation while navigating tensions between private property and societal needs.
However, it was acknowledged that significant challenges remained, particularly in reconciling historical land injustices, which required political and societal efforts beyond legal remedies. The Supreme Court’s judgments have underscored the complexities of implementing social justice while fostering transformative jurisprudence. These efforts were described as highlighting the potential of Kenya’s legal framework to create a more inclusive, equitable, and sustainable land tenure system, setting a precedent for addressing land conflicts and advancing economic empowerment.
The Supreme Court’s Jurisprudence on Family Law
By Hon. Lady Justice Njoki Ndungu, FCIArb, CBS at Jomo Kenyatta University of Agriculture and Technology
You can watch the full lecture here: https://t.co/ZUcy9KVZbK
The Lecture examined the evolution of Kenyan family law, tracing its roots to cultural traditions, colonial legacies, and constitutional reforms. Early laws entrenched gender disparities, often disadvantaging women in marriage, divorce, and property matters. Reform efforts, spearheaded by the 1994 Taskforce on Laws Relating to Women, resulted in progressive legislation such as the Children’s Act (2001), Matrimonial Property Act (2013), and Marriage Act (2014), fostering gender equality and addressing systemic inequities. The Supreme Court has played a critical role in developing jurisprudence on key issues, including matrimonial property division, polygamy, and presumption of marriage.
She mentioned that the Court in key judgments, such as JOO v. MBO (2021) and MNK v. POM (2023), has clarified the principles of contribution in matrimonial property cases and the parameters for presuming marriage from cohabitation. The Court emphasizes equity, fairness, and the importance of individual case contexts in resolving disputes. Justice Ndung’u underscores the need for continued legislative reforms, digitization of marriage registration processes, and judicial sensitivity to cultural and societal shifts, ensuring that family law remains adaptive and inclusive in safeguarding Kenyan families’ rights.
Breathing life into the Constitution: The Supreme Court Jurisprudence on Socio-Economic Rights and its Transformative Effects
By Hon. Justice Isaac Lenaola, FCIArb, CBS at Strathmore University on 3rd December, 2024
You can watch the full lecture here: https://t.co/CvDsUoR1zN
The Lecture was centered on 4 topics on Socio-economic rights: progressive realisation of rights, interrelated nature of socio-economic rights, relief and remedies under Article 23 of the Constitution and notable decisions by the Supreme Court on Socio-Economic Rights. The lecture highlighted that standards to ensure that states are continuously working towards full realization of rights, while also acknowledging practical limitations such as financial constraints or development levels can be divided into four parts i.e. the obligation to take steps, the use of maximum available resources, the prohibition of retrogressive measures and the obligation of international cooperation and assistance. The Supreme Court’s decisions where this standard has been applied were outlined as follows: Re the Matter of the Principle of Gender Representation in the National Assembly and the Senate SC Advisory Opinion No.2 of 2012; [2012] eKLR, Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae) [2021] eKLR, William Musembi 13 others v Moi Educational Centre Co. Ltd & 3 others [2021] eKLR.
The Interrelated nature of human rights considered that the constitution has to be interpreted holistically. Courts however have to balance between competing rights taking into account the specific context of each particular case. In the Satrose Ayuma case the court harmonized the right to property vis a vis the right to housing. The Supreme Court consequently adopted the same approach in the Mitubell and Willam Musembi cases. The Martin Wanderi & Moi University v Zaippeline cases focused on the right to education and human dignity. For reliefs and remedies under Article 23 Judge described Article 23 as the launching pad for any analysis on remedies for constitutional violations. He also set out the cases where the Supreme Court has given directions on assessing and crafting remedies. Judge equally outline the application of Structural interdicts listing five elements to be applied in its application.
The Apex Court of the Land: Exploring the Supreme Court’s Jurisprudence on its Jurisdiction
By Hon. Justice William Ouko, FCIArb, CBS at Mount Kenya University and Kenyatta University
The Lecture discussed the Supreme Court’s Jurisprudence on its Jurisdiction, delving into the Court’s authority as outlined in the Constitution. He discussed the Court’s exclusive original jurisdiction to determine presidential election petitions. He highlighted the decisions emanating from the three election cycles of 2013, 2017 and 2022. He also examines the Court’s interpretative role, its appellate jurisdiction both on constitutional matters as well as matters of general public importance. He also discussed the Court’s mandate to provide advisory opinions, emphasizing the importance of the Supreme Court in shaping Kenya’s legal framework.
He discussed the Court’s jurisdiction beyond the trite position as stipulated in the locus classicus “Lilian S’”. This stemmed from the fact that the Supreme Court’s functions were not in contemplation at the time the ‘Lilian ‘S’” was decided. His analysis offered valuable insights into the Court’s function in upholding constitutionalism and the rule of law. He also mentioned that the Court had exercised nearly all its constitutional jurisdictions, with the exception of its authority under Article 58(8) of the Constitution, dealing with the determination of the validity of a declaration of a State of Emergency.