Nairobi — The Constitutional Division of the High Court has declared revised Supreme Court rules gagging commentaries on cases pending before the court as unconstitutional.
Justice Mugure Thande issued the ruling on Wednesday in a petition filed by lawyer Omwanza Ombati.
The petitioner who listed Chief Justice Martha Koome and Attorney General Kihara Kariuki as respondents argued that in revising its rules, the Supreme Court failed to ensure public participation.
In her ruling, Justice Thande faulted the country's top court for usurping the legislative power of Parliament.
"A declaration be and is hereby issued, that, the Supreme Court (Presidential Election Petition) (Amendment) Rules, 2022 are unconstitutional for usurping the legislative power of Parliament," the judge declared.
"An order of certiorari be, and is hereby issued, calling into this honourable Court theSupreme Court (Presidential Election Petition) (Amendment) Rules, 2022, for the purposes of their being quashed, and the same are hereby quashed," she went on to state.
Koome gazetted the revised rules in May which sought to refrain advocates, litigants and their agents from expressing opinions on petitions in such a manner that would impede court proceedings.
She warned that failure to observe the rules would be tantamount to contempt of court.
Koome, in a May 24 gazette notice, asserted that litigants and lawyers in particular "shall refrain from expressing their opinion on merit, demerit or predict the outcome of the petition in any manner that would prejudice or impede Court proceedings, until a judgement is delivered."
Despite protests by the Law Society of Kenya, Koome defended the move by the Supreme Court to revise its rules saying the apex court acted within its mandate.
"The constitution allows the Supreme Court to make their own rules and even in the Supreme Court Act. There has been a very active committee that deals with the rules of the Supreme Court," Koome said following talks with LSK President Eric Theuri on May 26.
She appointed Supreme Court Judge Isaac Lenaola to spearhead bar-bench talks to look into concerns raised by LSK.
"We have agreed that let the lawyers look at them especially the problem at hand after all we serve Kenyans and not ourselves. We have agreed that because the bar bench is meeting on 2nd June that will be discussed and we will have a way forward," Koome said.
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LSK had condemned the amended laws saying they amounted to gagging litigants and advocates while underscoring the need to find a compromise on the matter.
"We should be able to find a way forward because when the Judiciary and LSK are consulting we are both brothers and sisters and we serve at the table of Justice. We should be able to come to a compromise," Theuri noted.
He proposed an LSK representative in the Supreme Court rules committee to ensure adequate public participation.
"We have been made to understand how we got into a place of this amended rules without public participation. To that effect we have agreed to have a request of a representative appointed to the rules committee," Theuri stated.
LSK argued that comments or observations by advocates cannot influence the outcome of an ongoing court case since judges do only consider submission made in court.
"This agenda will be discussed with a view of finding a way forward of addressing the concerns that we have especially when we have regulations that are aimed at curtailing the freedom of expression and opinion," said the LSK President.
