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Part III The Relationship Between the Judiciary and the Political Branches, 12 Judicial–Executive Relations in Kenya Post-2010: The Emergence of Judicial Supremacy?

Walter Khobe Ochieng

From: Separation of Powers in African Constitutionalism

Edited By: Charles M. Fombad

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 26 February 2021

This chapter examines the relationship between the judicial and the executive branch in Kenya. Kenya has long seen a deferent, politically controlled judiciary. The 2010 constitution, however, takes a number of steps to safeguard judicial independence, in line with the general concern to limit executive power. The 2010 reforms include the creation of a Judicial Services Commission that aims to end the previous presidential control of appointments and the insulation of judicial funding from executive control. Several aspects of the new appointment procedures have already been defended in decisions of the High Court. The chapter considers recent cases which demonstrate how ‘the Courts have reformed to the extent of boldly questioning executive decisions’. These cases also show executive compliance, although it has sometimes been slow to comply with decisions that go against it and several prominent political leaders, including the president, have criticized the courts for ‘activism’.

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