Narok High Court Judge Charles Kariuki ordered the case file to be placed before Chief Justice Martha Koome after finding that the petition raises substantial questions of law under Article 165(4) of the Constitution.

“The Petition therefore presents an appropriate case in which an expanded bench may consider and develop the jurisprudence governing the constitutional limits of investigative measures undertaken in the enforcement of anti-FGM legislation,” Justice Kariuki said.

The petition was filed by Sofia Rajab and six others and concerns women and girls who are victims or suspected victims of female genital mutilation (FGM) and who have allegedly been arrested, charged and detained under sections 20 and 24 of the Prohibition of Female Genital Mutilation Act.

Justice Kariuki said the petition raises constitutional questions concerning the enforcement of the anti-FGM law, including whether suspects can be subjected to compulsory genital examinations during criminal investigations.

He directed the Deputy Registrar to forthwith transmit the Court file together with a copy of this ruling to the Honourable the Chief Justice for consideration and assignment of an uneven bench of not less than three Judges to hear and determine the Petition.

The judge said the matter raises questions touching on human dignity, privacy, bodily integrity, equality, freedom and security of the person and fair trial rights.

“A compulsory genital examination is not an ordinary investigative act. It potentially involves an intrusion into bodily integrity, sexual privacy, dignity and personal autonomy,” Justice Kariuki said.

He said the issue was whether such investigations complied with the constitutional requirements of legality, necessity, proportionality and procedural safeguards.

The judge noted that the State has a constitutional obligation to eradicate FGM but said that obligation must be balanced against the rights of people subjected to criminal investigations.

“The State has a legitimate and constitutionally compelling obligation to protect women and girls from harmful practices and to enforce the law against FGM,” he said.

“That obligation, however, does not place persons suspected of being victims of FGM outside the protection of the Constitution.”

Justice Kariuki identified several substantial questions, including the constitutional limits of investigative powers where bodily integrity and privacy are implicated, the relationship between the Prohibition of FGM Act and the Constitution, protection of vulnerable persons and whether evidence obtained through intrusive medical or genital examinations can be used in criminal proceedings.

The petition also questions the interpretation and application of sections 20 and 24 of the anti-FGM law.

However, the judge clarified that neither provision expressly creates a power to conduct compulsory genital examinations.

“Neither provision, on its face, expressly creates a power to conduct compulsory genital examinations,” he said.

The judge said the substantive petition will determine whether the investigative practices complained of had a sufficient legal basis and complied with constitutional protections.

He noted that the precise constitutional questions concerning compulsory or allegedly compulsory genital examinations in FGM investigations had not been definitively determined by Kenya’s superior courts.

“The constitutional questions arising from compulsory or allegedly compulsory genital examinations in the investigation of FGM offences do not appear to have received a definitive determination by the superior courts in Kenya in the precise factual and statutory context presented by this Petition,” Justice Kariuki said.

The judge said the case has implications for law-enforcement agencies, prosecutors, medical practitioners and trial courts, and could contribute to the development of constitutional jurisprudence.

He nevertheless cautioned that certification was not a determination of the petition’s merits.

“Certification does not amount to a determination of the merits of the Petition. Neither does it signify that the Petitioners will ultimately succeed,” he said.

Justice Kariuki further clarified that the ruling should not be interpreted as questioning Kenya’s prohibition of FGM.

“The State has a clear constitutional and international obligation to protect women and girls from harmful practices. The issue for determination is whether the means employed in enforcing that obligation conform to the Constitution.”

The court allowed the petitioners’ March 20, 2026 application and certified Constitutional Petition No. E007 of 2025 as raising substantial questions of law.

The Deputy Registrar was ordered to transmit the file to Chief Justice Koome for consideration and appointment of an uneven bench of not less than three judges.

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Through his representatives, Senior Counsels Paul Muite and Fred Ngatia, Ahmednasir conveyed his contrition and commitment to respecting judicial dignity during an application heard on Tuesday before Chief Justice Martha Koome and five other Supreme Court judges.

In a dramatic turnaround from his previously defiant position, Ahmednasir has acknowledged the seriousness of his past conduct and expressed genuine regret.

Lawyer Dennis Musota, appearing in the matter where the application was made, told the bench: “I do believe that it has occasioned a sober reflection and genuine remorse on the part of the senior counsel.”

Musota informed the court that the banned lawyer now understands that “the relationship between the bar and the bench is not necessarily adversarial, but a custodial one, each entrusted with guarding the authority of the law.”

The senior counsel has committed to fundamentally altering his approach to judicial commentary.

Musota assured the judges that Ahmednasir “will recalibrate his conduct, especially in relation to the commentaries relating to matters before this court and any other courts.”

He promised that future comments would be “measured and with due regard to preserving the integrity, honour of the courts and the members of the courts.”

Senior Counsel Paul Muite revealed that extensive discussions had taken place with Ahmednasir about professional standards.

“Whatever concerns a member of the bar might have about a particular judge or judges, the choice of language in raising those concerns needs to recognize and appreciate the high office held by a judge of this honorable court,” Muite told the court.

“We have had that discussion and that discussion is appreciated, in particular, by Senior Counsel Ahmednasir Abdullahi.”

Senior Counsel Fred Ngatia pointed to recent behavior as concrete evidence of change.

When Justice Njoki Ndungu asked whether Ahmednasir had accepted certain “irreducible minimums” regarding professional conduct, Ngatia responded emphatically: “Yes, he has. Is there evidence about it? The beauty with evidence, the way I’m approaching this matter, is to look at the time past. In the recent past, all those matters are no longer what they used to be.”

He added: “Not a single word has fallen to the ground. All the words in the order have been well received and have been acted upon. And thank you, my Lord, Chief Justice Lenaola, my Lord, Justice Joki. Yes, diplomatic language. This is a very difficult matter that we are dealing with.”

The Supreme Court imposed the unprecedented restriction on January 23, 2024, following what it described as Ahmednasir’s persistent attacks on the judges and the judiciary.

The order comprehensively barred him from appearing “either by himself, through an employee of his law firm, or any other person holding his brief, or acting pursuant to his instructions.”

Supreme Court Registrar L.M Wachira’s letter stated bluntly: “It is untenable that you would seek justice in the very institution and before the very Judges, whose reputation and integrity you never tire in assaulting.”

The court noted that while the decision would affect Ahmednasir’s clients, it could not continue to tolerate attacks on its integrity.

Presenting the case for vacating the order, Senior Counsel Muite argued: “That denial of audience, in our very humble submission, has lived and in fact served its purpose. It is our humble prayer, extremely humble prayer, that the order be vacated.”

Fred Ngatia emphasized the significance of the two-year period, stating: “It is exactly two years, two calendar years. Time becomes a very good tool for communication, and that time, as I have indicated, is fairly substantial.”

He argued that circumstances had fundamentally changed.

“I would state without any fear, that the factors that may have prompted the Suomoto order are now largely historical, and I would also state without any fear, that henceforth, what I would expect, and Madam Senior, would be scholarly comments that practitioners ordinarily make,” Ngatia said

The application faced rigorous questioning from the bench.

Justice Njoki Ndungu pressed for specific assurances: “Are you reassuring us that in future he commits to respect and decorum to the Bench? You have spoken of scholarly works. Are you assuring us that the scholarly works and comments will not take the format that they have done in the past, and which was the basis of our order? I think you need to speak to us with clarity on these questions.”

Justice Isaac Lenaola similarly emphasized that the application should address “the offending conduct and offending words. I thought that would be a better way to proceed than to use time as the only basis for the application. I heard you on the first point, but I thought out of good faith and decency and etiquette and decorum, that bit should also come out of your submissions.”

Musota told the court that the two-year ban had achieved its corrective purpose.

“The order that is the subject of these proceedings with senior counsel has been well received and understood as a corrective intervention directed at preserving the dignity and the integrity of the process of this court. That intervention has spoken. The lessons have been learned and the experience taken positively.”

Senior Counsel Ngatia appealed for a fresh start in bench-bar relations.

“Let us not be held hostage by historical facts, or the relics of those facts. Let us now break bread and move forward, united as bench and bar, to a new dawn, a new dawn where none of the past is ever likely to come, disturb the breaking of bread, He said”

He also expressed broader concerns for the legal profession: “Chief Justice, I dearly hope on behalf of my colleagues in the bar that this incident will not happen again. And maybe we need to introspect as a bar. What are the extents that we practitioners ought to go to and what should we go to?”

The remorseful tone represents a sharp departure from Ahmednasir’s initial reaction to the ban.

In January 2024, he had posted defiantly on social media: “I will not take a brief or appear before the Supreme Court as long as CJ Koome, DCJ Mwilu, Smokin Wanja and Njoki are judges of the Supreme Court Kenya.”

Chief Justice Koome concluded Tuesday’s proceedings by thanking the counsels, expressing appreciation for the “kind gesture of working together in collaboration and in the spirit of the service of the people of this country. We will consider those submissions and we will deliver a ruling.”

The Supreme Court is set to deliver its decision on Friday, January 23, 2026.

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The ceremony, held at a function attended by senior government officials and members of the commission, signaled a new chapter for the constitutional body responsible for managing public sector wages and benefits across the country.

Mr. Surraw takes over from Dr. Anne Gitau, whose tenure as CEO spanned from 2015 to June 2025, a period that saw the commission navigate complex challenges in balancing fair compensation for public servants with fiscal sustainability.

His appointment received approval from the National Assembly in December 2025 after successful vetting by the Labour Committee, culminating a competitive recruitment process that began with the shortlisting of seven candidates in August last year.

Speaking at the event, Chief Justice Koome emphasized the weight of responsibility now resting on Mr. Surraw’s shoulders, noting that he must work alongside the commission’s leadership to ensure the onerous responsibility of ensuring that the Commission continues to discharge its constitutional mandate of promoting equitable, transparent, and sustainable management of public sector remuneration.

The Chief Justice outlined one of the central challenges facing the new CEO: striking “a careful balance between the legitimate expectations of state and public officers for fair and equitable remuneration, and the constitutional imperative of fiscal responsibility and sustainability.”

She warned that this balance is essential to the long-term stability of public institutions and the entire national economy.

In her remarks that highlighted inter-institutional cooperation, Chief Justice Koome praised the existing partnership between the Judiciary and the SRC, calling it close and constructive and noting its importance in attracting, retaining, and motivating highly skilled professionals within the Judicial Service.

The new CEO assumes office at a time when the SRC faces heightened public scrutiny over the management of Kenya’s public wage bill and the sustainability of compensation structures, challenges that will test his leadership from the outset.

The swearing-in ceremony coincided with another major judicial recruitment exercise.

Chief Justice Koome revealed that the Judicial Service Commission had begun conducting interviews for prospective Court of Appeal judges, with similar processes planned for High Court judges, Environment and Land Court judges, and Kadhis.

The Chief Justice disclosed that the commission recently appointed 100 Resident Magistrates on December 11, 2025, describing the move as a critical intervention aimed at reinforcing the Magistracy, which remains the primary entry point to justice for most Kenyans.

She characterized the comprehensive judicial recruitment drive as a coherent, system-wide approach to enhancing judicial capacity, reducing case backlog, and ensuring that justice is not only done, but done in a timely and effective manner.

In her concluding remarks to Mr. Surraw, Chief Justice Koome reminded him that his oath must serve as your constant guide in the discharge of your duties.

“It binds you to unwavering fidelity to the Constitution and the law, and calls upon you to serve this country with diligence, integrity, and devotion, mindful of the immense responsibilities entrusted to you,” she stated.

The Chief Justice assured the new CEO of the Judiciary’s continued commitment to collaboration in advancing constitutional governance and service to the people of Kenya.

The Salaries and Remuneration Commission, established under the 2010 Constitution, plays a crucial role in determining and reviewing the salaries and benefits of all state officers and public servants in Kenya, making it one of the most influential independent commissions in the country’s governance structure.

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The ceremony honoured Hon. Timothy Ole Tanchu, Hon. Jacqueline Muthoni Ojwang, Hon. Monicah Kivuti, Hon. Zena Atetwe Rashid Jalenga, Hon. Bernard Kipyegon Rugut, Hon. Kunyuk John Tito, and Hon. Athman Abdulhalim Hussein, recognizing their invaluable service and contributions to Kenya’s justice system.

“We have gathered this afternoon in solemn unity to perform one of the Judiciary’s most sacred collective duties: to honour, remember, and give a dignified closure to the files of seven of our colleagues who departed from us over the last two years,” Chief Justice Koome said.

Presiding over a bench that included Environment and Land Court Presiding Judge Oscar Angote and High Court Judge Anthony Mrima, CJ Koome highlighted the officers’ devotion, humility, and integrity, noting that their passing left an unmistakable void—not only within their families and communities, but also within the Judiciary family.

The Chief Justice celebrated the late Chief Kadhi Athman Abdulhalim Hussein as a scholar and jurist whose mastery of Islamic jurisprudence enriched both the legal fraternity and the Muslim community.

“Hon Hussein mentored many young scholars and Kadhis, pursuing knowledge with unwavering commitment until his final day,” CJ Koome said, lauding his wisdom, compassion, and clarity in judgments.

The CJ remembered Hon. Monicah Kivuti as principled and courageous, recalling the tragic attack on her while she was hearing cases in a tent during lunch hour.

“Her killing was not only a personal tragedy but an attack on the rule of law and the independence of the Judiciary. Her sacrifice reminds us of the need to safeguard judicial officers,” Koome said.

Principal Magistrate Bernard Kipyegon Rugut was honoured for his gentleness, diligence, and compassion across postings in Bondo, Ndhiwa, Kericho, and Molo.

“He listened attentively, decided calmly, and treated every litigant with dignity,” Koome said.

The late Principal Kadhi John Tito Kunyuk was celebrated for his scholarship and leadership in the Muslim community, particularly in Islamic Family Law and the history of Kadhi courts.

“He contributed significantly to Kenya’s intellectual and legal landscape,” the Chief Justice noted.

The CJ described Hon. Timothy Letina Ole Tanchu as warm, humorous, and empathetic, whose service in Makadara, Taveta, City Court, Mombasa, Limuru, and Kibera exemplified dedication to justice.

“He approached every case with fairness and humanity,” CJ Koome said.

Hon. Jacqueline Muthoni Ojwang was remembered for kindness, generosity, humility, courage, and wisdom across her postings from Kibera to Thika and Butere.

Meanwhile, Hon. Zenah Atetwe Rashid Jalenga was celebrated for resilience, optimism, and her commitment to fairness and compassion in the Milimani Commercial Court.

“As we close their files today, we do not close their memory. We affirm their legacies as part of the enduring institutional memory of the Judiciary of Kenya. Their service forms part of the strong foundation upon which we continue to build a more accessible, independent, and people-centred justice system,” CJ Koome said.

Chief Registrar Winfridah Mokaya highlighted that the proceedings were more than an administrative exercise, calling it a profound gesture of institutional respect.

“Extending this honour to judicial officers affirms our commitment to recognising their dedicated service, offering comfort to their families, and ensuring their contributions are preserved in our institutional memory,” she said.

Justice Peter Mulwa, President of the Kenya Magistrates and Judges Association, praised the departed officers for their determination and commitment to justice, while Hon. Everlyne Olwande of the Judicial Service Commission emphasized their quiet, steady, and dutiful service to the nation.

“We honour their service, cherish their memory, and assure their families that their contributions live on not just in documents, but in the lives they touched and the justice they dispensed,” Olwande said.

Families of the departed judicial officers expressed gratitude to the Judiciary for honouring their loved ones, acknowledging that the event offered both recognition and solace for their loss.

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Addressing elders, community leaders, and justice stakeholders during the launch event, CJ Koome hailed the initiative as a transformative approach to resolving disputes peacefully and inclusively.

“The term Al-Islaah, meaning ‘reconciliation’ in Arabic, captures the spirit of this centre,” said the Chief Justice.

“It will be a place where the wisdom of elders, the moral authority of religious leaders, and the knowledge of trained mediators converge to offer citizens solutions that heal relationships rather than deepen divisions.”

CJ Koome emphasized that justice should not be confined to formal courtrooms, especially in counties like Garissa, where long-standing traditions, religious norms, and local realities offer effective avenues for dispute resolution.

“Garissa, with its rich Somali traditions, strong religious heritage, and unique cross-border realities, has always known that justice cannot be confined to the four walls of a courtroom. Justice must live in the community, in the baraza, in the mosque, and in the council of elders,” she noted.

The Garissa AJS Model, launched alongside the Justice Centre, brings together three complementary streams: autonomous systems such as elder and religious councils, court-annexed AJS panels, and state-linked actors including Chiefs and Assistant Chiefs.

CJ Koome described this as a “multi-door approach to justice”, designed to empower citizens with options that are accessible, affordable, and aligned with human rights.

“Together, these streams form a multi-door approach to justice, an approach that allows citizens to choose from multiple avenues of redress depending on their needs, while ensuring that human rights, dignity, and constitutional values are upheld,” she said.

Highlighting the practical benefits of the AJS model, CJ Koome pointed out its role in de-escalating community tensions and preventing cycles of violence, particularly in areas prone to land disputes and cross-border conflict.

“By empowering elders, religious leaders, and community actors to resolve disputes early and fairly, we reduce the risk of violence, strengthen social cohesion, and give our young people a future free from cycles of revenge and retaliation,” she said.

The Chief Justice also stressed the need for inclusion in AJS processes, urging practitioners to uphold gender equity and the rights of vulnerable populations.

“Let us ensure that justice under AJS respects constitutional values and protects the vulnerable, particularly women and children,” CJ Koome urged.

Garissa Governor Nathif Jama welcomed the Chief Justice’s visit and reaffirmed his administration’s commitment to supporting and expanding AJS mechanisms across the county.

“Today we are honored to host the Chief Justice in Garissa. Our partnership in championing the AJS model demonstrates our shared vision of making justice simple, affordable, and closer to the people,” said Governor Jama.

“This initiative will strengthen peace, cohesion, and accountability in our communities.”

He also announced plans to devolve AJS Suites to the sub-county level, ensuring that traditional conflict resolution is available even in remote areas.

Chief Registrar of the Judiciary Winfridah Mokaya underscored the symbolic importance of launching the Al-Islaah Centre in Garissa, noting the region’s strong foundation in elder councils, Islamic justice traditions, and grassroots reconciliation.

“The launch of the AJS Suite here is therefore not just a programme milestone, but also a recognition of this region’s strong culture of community-driven justice,” Mokaya said.

She called for increased investment in justice across both formal and informal systems.

“Building modern courts, supporting mobile courts, and strengthening AJS mechanisms are not separate agendas—they are complementary pathways that expand the doorways of justice,” she added.

“Whether a Kenyan seeks resolution before a Judge in a High Court, a Kadhi in a family matter, or elders through AJS, justice must be accessible, trusted, and within reach.”

With the launch of its AJS County Action Plan, Garissa becomes the 12th county in Kenya to formally implement an Alternative Justice System framework, a major step toward realizing Article 159(2)(c) of the Constitution, which mandates the promotion of traditional dispute resolution mechanisms.

CJ Koome concluded her visit by reaffirming the Judiciary’s dedication to people-centered justice, rooted not only in law but also in cultural wisdom and communal harmony.

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Speaking at a Katiba Day forum marking the 15th anniversary of the Constitution’s promulgation on Wednesday, August 27, 2025, CJ Koome described the charter as a “catalyst for social justice, equality, and rule of law.”

The event, hosted by the Nation Media Group under the theme “Fifteen Years Later: The Constitution and Us”, brought together legal minds, civil society leaders, and public officials to reflect on the impact and evolution of Kenya’s constitutional journey since 2010.

“Fifteen years later, we can look back with pride at the distance we have travelled,” CJ Koome said.

“The Judiciary has undergone profound reform, developed transformative jurisprudence, and expanded access to justice for all—though persistent challenges remain.”

Tracing the Judiciary’s reform journey over the past decade and a half, CJ Koome outlined three major strategies that have guided institutional change: the Judiciary Transformation Framework (JTF) under former CJ Willy Mutunga, Sustaining Judiciary Transformation (SJT) under retired CJ David Maraga, and the ongoing Social Transformation through Access to Justice (STAJ) strategy that will guide reforms through 2033.

“The greatest outcome of these reforms has been the strengthening of judicial independence,” she said.

“Kenyan courts have demonstrated courage in asserting themselves as defenders of constitutionalism, earning respect across Africa and beyond.”

She cited landmark cases that have defined Kenya’s evolving jurisprudence, including the Supreme Court’s rejection of the BBI constitutional amendment, decisions affirming housing rights in Mitu-Bell and Musembi, the historic Muruatetu ruling abolishing the mandatory death sentence, and the court’s 2023 affirmation of LGBTQ+ persons’ freedom of association.

CJ Koome also emphasized the role of technology in revolutionizing court services.

Since launching the e-filing system in Nairobi in 2020, and scaling it nationwide by 2024, the Judiciary has moved much of its operations online, including virtual hearings, e-payment of court fees, and cause-list tracking through real-time dashboards.

“Litigants can now access justice online, pay fees electronically, and even attend hearings virtually,” she explained.

“These digital innovations have transformed the delivery of judicial services.”

The Judiciary has also extended its physical presence, with High Court stations now operational in all 47 counties, improving access to justice even in historically underserved regions.

Despite notable strides, CJ Koome admitted the Judiciary still faces serious challenges, among them budgetary constraints, case backlogs, and new forms of intimidation such as cyberbullying and targeted misinformation campaigns.

“Criticism of court decisions must follow lawful channels, not digital harassment,” she cautioned, noting that the Judicial Service Commission (JSC) has processed over 946 complaints against judicial officers since 2010 as part of its internal accountability mechanisms.

She further lamented the Judiciary’s minimal budget allocation, which remains below 1% of the national budget, calling it inadequate for an institution with a mandate as critical as health or education.

“Justice cannot flourish without sufficient resources. The Judiciary deserves stronger financial support to deliver on its constitutional obligations,” Koome asserted.

Also speaking at the event, Chief Registrar of the Judiciary Winfridah Mokaya reiterated the Judiciary’s responsibility in ensuring constitutional fidelity across all arms of government.

“It has been the Judiciary’s role to fiercely and constantly patrol the boundaries of the Constitution, ensuring no individual or institution operates beyond them,” Mokaya said.

“In doing so, we help realize the dreams and aspirations of the Kenyan people.”

In her closing remarks, Chief Justice Koome reaffirmed the Judiciary’s commitment to the Kenyan people and the ideals enshrined in the 2010 Constitution.

“We will continue to administer justice without fear or favour, check abuses of power, and defend the rights of all Kenyans,” she said.

The Katiba Day forum served not only as a celebration but also as a call to action—to strengthen the gains made under the Constitution, confront lingering injustices, and deepen Kenya’s democratic values through the rule of law.

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