Katiba Institute filed an urgent petition, accusing the Executive and the National Assembly of openly defying binding court judgments by appointing members to key tribunals.
The litigation and research organisation is challenging the reappointment of Advocate Winnie Tsuma to the National Environment Tribunal by the Cabinet Secretary for Environment, and the enactment of the Gambling Control Act (2025), which grants the President and a Cabinet Secretary powers to appoint members of the newly created Gaming Appeals Tribunal.
In the court documents, the petitioner’s lawyer Joshua Malidzo Nyawa, accused the government of “headstrong contumaciousness born of bold impunity, open defiance, and a cynical disregard for the authority of the Constitution and the integrity of the judicial system.”
The dispute lies in a settled legal principle established by the courts over the last five years.
In a landmark 2021 ruling (Okoiti v Judicial Service Commission), Justice Mrima declared that local tribunals are subordinate courts whose administration must fall under the Judiciary, specifically through the Judicial Service Commission (JSC).
The court held that appointments by the Executive violate the separation of powers, judicial independence, and the right to a fair hearing.
This decision was upheld by the Court of Appeal in February 2025.
Similarly, in a separate 2025 ruling (Katiba Institute v Attorney-General), Justice Chacha Mwita struck down sections of the Environment and Management Act that allowed a Cabinet Secretary to appoint members of the National Environment Tribunal, affirming that only the JSC has that authority.
Despite these clear and binding judgments, says Nyawa, the Cabinet Secretary for Environment, Climate Change and Forestry, on January 16, 2026, gazetted the reappointment of Winnie Tsuma to the National Environment Tribunal for a three-year term, effective February 8, 2026.
Simultaneously, Parliament enacted the Gambling Control Act in August 2025. Section 88(2) of the Act establishes a Gaming Appeals Tribunal and vests the power to appoint its Chairperson in the President, and four of its members in a Cabinet Secretary, directly contravening the established jurisprudence.
The petition argued that these actions represent an “unprecedented” level of executive and legislative impunity that treats “the constitution as a mere suggestion and binding court decisions as disposable paper.”
“Unless urgently restrained, this unconstitutional appointment will take effect, entrench illegality, undermine the authority of the courts, and occasion irreparable harm to the independence of the Judiciary, the separation of powers, and the right to a fair hearing,” stated the court document.
Katiba Institute sought, among other reliefs, conservatory orders to suspend the contested appointment and the implementation of the Gambling Control Act’s appointment clause, pending the hearing of the case.
It also sought a permanent order prohibiting all state organs from making such appointments in the future, in defiance of the Constitution.
Nyawa argued that the case transcends the specific tribunal appointments and touches on the core of Kenya’s constitutional order, the supremacy of the Constitution, the rule of law, and the respect for judicial authority.
A repeated pattern of defying court orders, they warn, erodes public confidence in constitutional governance and weakens the institutional authority of the courts.
Katiba institute sued the Attorney-General, the National Assembly, and the Cabinet Secretary for Environment.
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