A Constitutional crisis is brewing at the National Environment Tribunal (NET) after the Katiba Institute moved to the High Court to block the appointment of Ms. Winnie Tsuma, arguing that the Executive has once again overstepped its mandate in a move that threatens judicial independence.

The petition, filed under a certificate of urgency, seeks to halt the swearing-in of Tsuma, citing a flagrant violation of the separation of powers. The Institute argues that the NET is a subordinate court under the Judiciary, not a parastatal under the Ministry of Environment, and therefore, appointments must be conducted by the Judicial Service Commission (JSC), not Cabinet Secretaries. This legal showdown comes at a time when the Kenya Kwanza administration is facing intensified scrutiny over its adherence to court orders.

The Executive vs. Judiciary Tussle

At the heart of the matter is Gazette Notice No. 396 of 2026, which formalized Tsuma’s appointment. The Katiba Institute’s legal team contends that this notice acts "ultra vires"—beyond the legal power of the Executive. They reference a 2025 Court of Appeal decision that explicitly categorized tribunals as judicial bodies protected from executive interference.

"To allow a Cabinet Secretary to handpick judges for a tribunal that determines disputes involving the government is to make the state a judge in its own cause," the petition reads in part. "This erodes public confidence in environmental justice at a time when climate litigation is on the rise."

• The Precedent: The case mirrors the 2021 Okoiti v. JSC ruling, where the High Court declared that the President has no power to appoint tribunal members without JSC involvement.
• The Stakes: If Tsuma’s appointment proceeds, it could render all future decisions of the NET null and void, sparking a wave of appeals from NEMA and private developers.
• The Timeline: The court has directed the Attorney General and the Environment CS to file their responses within 7 days, setting the stage for a landmark ruling in February 2026.

Implications for Environmental Justice

The National Environment Tribunal is the first line of defense against environmental degradation in Kenya. From stopping illegal constructions on riparian land in Nairobi to regulating effluent discharge in Lake Victoria, its mandate is critical. Legal experts warn that "capturing" the tribunal could weaken oversight on mega-projects.

"If the appointee owes their allegiance to the Minister, how can they impartially adjudicate a case where the Ministry is a respondent?" posed an advocate from the Law Society of Kenya (LSK), who sought anonymity. "We are seeing a systemic attempt to weaken checks and balances."

As the case unfolds, the spotlight remains on the Judiciary’s willingness to defend its territory against Executive encroachment. For Winnie Tsuma, a seasoned professional caught in a constitutional crossfire, her tenure hangs in the balance before it has even begun.