In a case that has ignited fierce debate, Hon. Babu Owino has asked Nairobi’s Milimani Law Courts to compel President William Ruto to appear in person for cross-examination — arguing that the President, as complainant, should face scrutiny in court. But constitutional experts say this is legally blocked by the protection granted to a sitting Head of State.
Under the Constitution of Kenya, 2010, the relevant provision is Article 143, found in Chapter Nine, Part 2 (“The President and Deputy President”). The text reads in part:
143. Protection from legal proceedings
(1) Criminal proceedings shall not be instituted or continued in any court against the President … during their tenure of office.
(2) Civil proceedings shall not be instituted in any court against the President … during their tenure of office in respect of anything done or not done in the exercise of their powers under this Constitution.
(3) … a period of time during which the person holds … the functions of the office of the President shall not be taken into account … in calculating the period of time prescribed by law.
(4) The immunity … shall not extend to a crime … under any treaty to which Kenya is party which prohibits such immunity. Kenya Law+2Kenya Law+2
This constitutional shield means the sitting President enjoys immunity from both civil and criminal proceedings in Kenyan courts, for acts done in the exercise of his official powers. Kenya Law+2Kenya Law+2
The immunity underscores the President’s unique role — particularly as Commander in Chief of the Armed Forces, carrying out functions central to the State. Legal scholars highlight that it is not meant to shield personal wrongdoing, but to protect the stability of the office. Kenya Law
In the courtroom battle, Hon. Babu Owino, representing Nuru Okanga — who is accused of defaming the President — made a bold plea: since the President is the complainant, he must be physically present for cross-examination. According to Owino, this is fundamental to a fair hearing.
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However, constitutional protections pose a serious obstacle. In previous litigations, Kenyan courts have interpreted Article 143 to mean that civil actions must be directed not against the President directly, but rather through the Attorney General’s office. Business Daily+1 Indeed, in the Ndii & Others v Attorney General case, the High Court ruled that the President could not be sued personally while in office, underlining the insulation provided by Article 143. Kenya Law
That said, the immunity is not absolute. Article 143(4) provides a crucial exception: if Kenya is party to a treaty that waives immunity, the President may face proceedings even while in office. WIPO
As the court considers Owino’s motion, the constitutional protections remain a formidable barrier. The bid to force the President to testify in person raises deep legal and political questions — about accountability, separation of powers, and the balance between sovereign immunity and rule of law.
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