For much of its constitutional history, Kenya’s judiciary has occupied an uneasy position in economic governance. The Constitution, 2010, transformed the courts into active custodians of public interest. It empowered them to interrogate executive action, protect public resources, and enforce constitutional accountability.   

This same transformation has steadily drawn courts into disputes whose implications extend far beyond the litigants before them, touching fiscal policy, capital markets, foreign investment, sovereign financing, and the broader architecture of economic governance. The events of the past week suggest that Kenya’s judicial system may finally be confronting this tension with greater awareness and perhaps greater coherence than it has shown before.  

The Court of Appeal’s decision to lift the conservatory orders that had temporarily halted the government’s partial divestiture in Safaricom marked a significant development. Separately, the intervention of the Principal Judge of the High Court, Hon. Justice Eric Ogolla, to rationalise the proliferating suits challenging the proposed acquisition of EABL by Japan’s Asahi Group also signalled an important judicial step.  

Together, these developments may prove to be more than isolated events; they point toward the emergence of a more sophisticated judicial philosophy of public interest, economic governance, and the proper role of courts within a constitutional democracy. The question this raises is both provocative and consequential: are Kenyan courts finally getting public interest right?  

The Constitutional Expansion of Public Interest  

Among the enduring achievements of the 2010 Constitution was its democratisation of access to justice. Articles 22 and 258 constitutionalised public interest litigation. This allowed citizens to challenge public action without demonstrating personal injury. The framers understood that a young constitutional democracy requires vigilant oversight, and that courts must remain accessible guardians of public accountability.  

In the years following promulgation, this understanding produced an expansive judicial posture. Intervention became nearly synonymous with vigilance, while the conservatory order emerged as the instrument of choice for preserving rights and forestalling irreparable harm. This approach was perhaps inevitable in a post-authoritarian order still learning to trust its own institutions. 

Justice Louis Brandeis, former US Supreme Court Associate Justice, once observed that sunlight is the best disinfectant, and electric light the most efficient policeman. Kenyan courts embraced that philosophy with considerable enthusiasm, positioning themselves as safeguards against executive excess and opacity.   

Constitutional democracies mature. However, maturity entails recognising that the public interest is neither singular nor static. Constitutional accountability remains a matter of the public interest, but so do fiscal stability, investor confidence, market certainty, pension preservation, employment protection, and the efficient functioning of capital markets. To privilege one conception of the public interest to the exclusion of all others is not constitutionalism; it is constitutional reductionism.  

The Court of Appeal and the Reimagining of Public Interest  

It is against this backdrop that the recent Court of Appeal’s decision assumes real significance. While the appellate court did not determine the substantive legality of the government’s proposed divestiture, it quietly rejected a proposition that has shaped Kenyan public law for over a decade: that preserving the status quo is inherently synonymous with protecting the public interest. The court instead treated public interest as a balancing exercise rather than a presumption, a distinction with real jurisprudential weight.  

Ronald Dworkin, an American jurist, argued that difficult constitutional disputes require judges not merely to apply rules mechanically, but to weigh competing principles through reasoned judgment. He wrote that hard cases are hard precisely because no settled rule dictates the outcome either way. 

John Rawls, a political philosopher, similarly held that justice is the first virtue of social institutions. However, he also argued that justice itself depends on preserving the institutional arrangements that sustain a functioning society. 

The Court of Appeal’s reasoning seems to reach for something like this balance. The public undoubtedly has an interest in ensuring that government transactions comply with constitutional and statutory requirements. However, it has an equally legitimate interest in market stability, investor confidence, shareholder value, fiscal predictability, and Kenya’s credibility as an investment destination. Recognising that public interest extends beyond the fact of litigation itself may prove to be one of the more consequential developments in Kenya’s constitutional jurisprudence.  

Conservatory Orders and the Economics of Judicial Intervention  

Conservatory orders have long held an almost sacred place in Kenya’s constitutional litigation. Yet their proliferation across taxation, privatisation, procurement, and capital markets disputes has revealed a real limitation: temporary relief has too often hardened into prolonged uncertainty. Major projects have stalled for years, regulatory reforms have stagnated, and markets have adjusted not to final judicial determinations but to interim procedural orders.  

Richard Posner, a US judge, argued consistently that judges cannot ignore the practical consequences of their decisions. Constitutional adjudication cannot be reduced to economic efficiency, but courts cannot pretend that economic consequences do not exist either. Every conservatory order carries costs, and those costs fall not only on governments or corporations but also on pension funds, minority shareholders, employees, and ultimately taxpayers. This is not an argument for judicial deference to executive or corporate interests, but an acknowledgement that restraint can protect the public interest just as effectively as intervention.  

The Asahi Litigation and the Problem of Judicial Fragmentation  

If the Court of Appeal’s ruling signals an evolution in substantive doctrine, the High Court Principal Judge’s intervention in the Asahi matter, grounded in the Social Transformation through Access to Justice (STAJ) Blueprint, points to something equally important. It reflects recognition that the judicial process itself is a matter of public interest. The proliferation of petitions challenging major commercial transactions has become an underappreciated risk to Kenya’s investment climate. Serial litigation, parallel proceedings, and forum shopping create uncertainty not only for litigants but also for markets themselves, a challenge hardly unique to Kenya. London’s Commercial Court evolved for precisely this reason. Singapore built its reputation as a dispute-resolution hub on the same premise, and even India’s celebrated public interest litigation tradition has had to grapple with its capacity for abuse and fragmentation.  

Lon Fuller, an American legal scholar, described law as the enterprise of subjecting human conduct to the governance of rules, rules whose legitimacy rests not merely on their existence but on their predictability and coherence. Judicial process, understood this way, is itself a component of economic governance, which is what concerns Kenya’s judicial leadership more than an administrative footnote.  

Toward an Economic Constitutional Jurisprudence  

These two developments mark the gradual emergence of an economic constitutional jurisprudence. Not judicial deference to political or commercial interests, nor any diminishment of the judiciary’s role as guardian of accountability, but a recognition that constitutional, economic, and institutional governance are deeply intertwined.  

Oliver Wendell Holmes contended that the life of the law has not been logic but experience, and Kenya’s constitutional experience over the past 15 years bears this out: economic disputes cannot be resolved by abstract legal reasoning alone. The judiciary’s task, then, is to decide cases correctly and to build a constitutional philosophy capable of holding accountability and certainty, oversight and efficiency, and vigilance and stability, in the same hand.  

New York City lawyer Alexander Hamilton described the judiciary, in Federalist No. 78, as possessing neither force nor will, only judgment. In a modern constitutional democracy, judgment is itself a form of power as markets respond to judicial decisions, investors interpret judicial predictability as a signal, governments shape policy around judicial doctrine, and citizens live with the consequences.  

It would be premature to say that Kenyan courts have fully resolved the tension between constitutional accountability and economic governance. The developments of the past week suggest something more modest, and more important: a judiciary increasingly willing to treat the public interest not as a synonym for litigation, delay, or the preservation of the status quo, but as a dynamic balance among constitutional values, institutional legitimacy, and economic stability. This shift is profound, particularly for a country positioning itself as a regional financial and commercial hub, and it may be exactly the evolution Kenya needs.