Supreme Court declines to expand Ombudsman powers

The Supreme Court has dismissed an application by the Commission on Administrative Justice (CAJ) seeking to redefine its powers over other constitutional bodies and county governments.

The CAJ approached the apex court in 2025, asking it to overturn a 2021 ruling that limited its enforcement powers.

The commission argued that its ability to compel compliance from state organs, including county governments and other independent commissions, had been undermined by the court’s decision in the Vision 2030 Delivery Board case.

In that earlier ruling, the Supreme Court held that the Ombudsman’s recommendations are discretionary rather than binding, emphasising that the commission’s main enforcement mechanism is reporting to Parliament.

The CAJ contended that this interpretation rendered it ineffective in cases of non-compliance.

To illustrate its position, the commission cited instances where its authority had allegedly been ignored.

These included a dispute with the Judicial Service Commission (JSC), where commissioners reportedly ignored summonses issued by the Ombudsman over complaints against judicial officers, claiming the summonses were unlawful and unconstitutional.

The commission also pointed to unresolved grievances against county governments, such as unpaid work injury benefits in Mombasa and noise pollution complaints in Kisumu.

It argued that its intervention and enforcement mechanisms were limited by the binding precedent.

However, the Supreme Court was not persuaded by the CAJ’s arguments.

In its determination released on Friday, the judges noted that while the court can offer advisory opinions, it must exercise caution to avoid being used by litigants simply dissatisfied with previous rulings.

The court stated: "A litigant cannot urge the court to depart from its previous decision simply because he disagrees with it, or that the decision militates against his case."

The bench found that the CAJ had not demonstrated any actual legal dispute or difficulty arising from the exercise of its powers that would warrant intervention.

The judgment added: "There was no indication of any challenges or disputes arising from the applicant’s exercise of its powers or functions, nor had the applicant demonstrated difficulties in requiring the production of any documents or records relevant to any investigation by the commission over county government officers, state officers, or constitutional commissioners."

Regarding precedent, the judges noted: "While it is not in doubt that the Supreme Court may depart from its previous decisions under Article 163 (7) of the Constitution, such departure must be premised upon a clear and well-reasoned justification."

The ruling means the legal framework governing the Ombudsman’s authority remains unchanged—a body with broad investigative reach but limited power to compel compliance from other state organs.

The court ordered that each party bear its own costs.