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7️⃣ Key takeaway

The State protects its officers, but it protects the office, not the abuse of it. The hard part is the line between the two, and that line is malice, found by a court, not error and not an unpopular decision. So the real question is not whether public officers should be protected. They must be, or no one would serve. It is this. At what point does the law determine when the officer stopped acting for the State and started acting for himself?

EMS Law LLP continues to analyse emerging governance, integrity and constitutional law developments in Kenya.

👉 Follow @Lexken_EMSLaw for practical legal insights on public law, governance and constitutional compliance.

[EMS Law LLP @Lexken_EMSLaw]

🚨 Can a public officer enjoy absolute immunity in the course of their functions? A constitutional question about where the State's protection ends.

A District Commissioner was ordered to pay six citizens KShs. 800,000 each, personally, for a malicious prosecution he set in motion while in office. He argued the State should carry the cost. The courts said no.

The sequence raises a question that runs deep into Kenya's constitutional design. When a public officer harms a citizen through the office he holds, who answers for it? Can he be sued personally? Where does lawful authority end and personal liability begin? And how do we protect that line from being abused by every litigant who simply dislikes an official decision?

Here are the key issues. - A Thread

[EMS Law LLP @Lexken_EMSLaw]

6️⃣ Has this tension come before the courts before?

It runs right through Kenyan public law. The State's responsibility for official acts is long settled, but so is its limit. Courts have consistently held that the protection does not stretch to acts that are unlawful, beyond power, or done in bad faith.

This decision is one more turn of that same wheel. It does not invent a new rule so much as apply an old and enduring one, that public power is held in trust, and the law will not allow the trust to become a hiding place. What this case adds is a plain articulation of when an officer crosses from protected servant to personally liable wrongdoer.

But here is the honest limit. The Court of Appeal upheld the result largely on finality and procedure, not by re-examining the principle in full. So the rule stands, intact and persuasive, but its outer edges still await a case that squarely asks a higher court to map them.

[EMS Law LLP @Lexken_EMSLaw]

7️⃣ Key takeaway

The courts stand on solid ground in punishing contempt. The hard part is how far that power can go when the person being punished runs an equal branch of government, and higher courts keep testing exactly that. So the real question is not whether court orders must be obeyed. They must. It is this. When a court forces a Cabinet Secretary to comply, is it protecting its own authority, or is it overstepping into the Executive's space? Both can be true at once, and that is what makes this so hard to settle.

EMS Law LLP continues to analyse emerging governance, integrity and constitutional law developments in Kenya.

👉 Follow @Lexken_EMSLaw for practical legal insights on public law, governance and constitutional compliance.

[EMS Law LLP @Lexken_EMSLaw]

🚨 Can a judge jail a Cabinet Secretary for ignoring a court order? A constitutional question about the limits of two powers.

This week the High Court summoned the Cabinet Secretary for Health to appear in person, found him in contempt, and after his apology, discharged him with a warning.

The sequence raises a question that sits right at the heart of Kenya's constitutional design. When a court gives an order and a Cabinet Secretary does not comply, what should happen? Should the court summon the CS personally? Can it find the CS in contempt? Can it fine or jail a serving Cabinet Secretary? And if it can, where does judicial power end and Executive independence begin?

Here are the key issues. - A THREAD

[EMS Law LLP @Lexken_EMSLaw]

6️⃣ Should Parliament step back in?

Every problem above comes back to one root. Since the last Act was struck down, Kenya has had no law governing contempt. The power still exists, but the rules around it, how notice is given, what defences apply, when an officer can be held personally liable, are worked out one ruling at a time. That gap is arguably why some contempt findings have collapsed on procedure, why personal liability is still unsettled, and why good faith works as informal mercy rather than a defence the law actually spells out.

A new Contempt of Court Act could fill these gaps:

✅ Clear procedure, so fewer contempt rulings collapse on appeal.
✅ A defined good-faith standard for officers, separating honest confusion from deliberate defiance.
✅ Certainty on when, and how, a public officer can be held personally liable.

But there is a warning in how the last Act fell. It was struck down partly for interfering with the courts' independence, for one branch writing rules on how the courts enforce their own orders. That is the trap. The same separation of powers that makes a law useful is what makes it risky. Parliament deciding how courts discipline the Executive sits awkwardly with the independence of both.

So the question is genuinely open. Does the current gap leave too much to the discretion of judges, or is this power so central to the courts that they have to keep full control of it, precisely so no other branch can clip it?

[EMS Law LLP @Lexken_EMSLaw]

7️⃣ Key Takeaway

The EACC advisory rests on strong governance foundations. But its scope, legal force, timing and proportionality remain contestable. The constitutional line is not between branding and no branding. It is between public information and political appropriation.

⚖️ EMS Law LLP continues to analyse emerging governance, public finance, integrity and constitutional law developments in Kenya.

👉 Follow @Lexken_EMSLaw for practical legal insights on public law, governance and regulatory compliance.

[EMS Law LLP @Lexken_EMSLaw]

🚨 Public Projects & Political Branding: The EACC Directive Opens a Constitutional Question.

The Ethics and Anti-Corruption Commission has directed that publicly funded projects should not carry the names, faces, portraits, or party symbols of politicians before, during, or after implementation. At first glance, the principle is straightforward. Public money should not become private political capital. But the constitutional question is more complex.

Here are the key issues - A Thread

[EMS Law LLP @Lexken_EMSLaw]

5️⃣ The Article 24 Test

If the advisory limits expression, political communication or access to information, Article 24 becomes unavoidable.

Any limitation of a right must be:

✅ Provided by law.
✅ Reasonable and justifiable.
✅ Proportionate.
✅ Connected to a legitimate purpose.
✅ The least restrictive means available.

The legitimate purpose is clear: preventing the personalisation of public resources.

The harder questions are these:

Is a directive law for purposes of limiting rights? Can it operate like a binding prohibition? Is a blanket ban proportionate? Can it apply to projects already completed and branded? Who pays for removal? And what exactly counts as a symbol. Is it a party colour, slogan, logo, tagline or portrait?