Memorable court verdicts of 2016

The year 2016 was a remarkable one in the corridors of justice. It was one in which there was a change of guard at the helm of the Judiciary, lawyers’ body and the Supreme Court.

Chief Justice Willy Mutunga retired on June 16 at 68 instead of the requisite 70 and took up a new job as a Commonwealth Special Envoy to Maldives. However, the transition was shadowed by supremacy battles at the country’s top court.

Dr Mutunga’s Deputy, Ms Kalpana Rawal, and fellow Supreme Court judge Philip Tunoi battled with a retirement case that cast Supreme Court’s Justice Njoki Ndung’u in the spotlight for attempting to stand with the duo.

The two were eventually sent on retirement and Justice Ndung’u left to battle a petition before the Judicial Service Commission (JSC) and the court over alleged gross misconduct.

The High Court declined to heed to a plea to stop Justice Isaac Lenaola, then of the Court of Appeal, from being appointed as a Supreme Court judge by the Gender Commission and he made it.

But it was Chief Justice David Maraga’s entry into the top leadership of the Judiciary that came as a surprise, boosted by his untainted track record on integrity, giving Kenyans fresh hope and confidence of “somehow fitting in Dr Mutunga’s shoes”.

The Law Society of Kenya (LSK) also had a change of guard when Mr Isaac Okero, a lawyer formerly based in Kisumu, beat Nairobi’s Allen Gichuhi and Mr Aggrey Mwamu, an immediate former president of the East Africa Law Society, to the presidency of the lobby.

Uncertainty had reigned after a junior advocate was locked out and moved to court. The lawyers’ body was also sharply divided with the emergence of a faction dubbed “Okoa LSK”.

Various verdicts by different judges in courts across the country were quite memorable. Below are some of them.

1. Deadbeat fathers: On May 26, Justice Mumbi Ngugi ruled that all birth records should bear the father’s name — even if the child was born out of wedlock.

She declared Section 12 of the Births and Registration Act unconstitutional, saying every child has a right to have the name of its father on the birth certificate.

“Women have had to go through the process of filing upkeep cases, seeking paternity tests, but now the kind of cases expected to be brought to court will be that a registrar has refused to include the father’s name,” said lawyer John Chigiti after the verdict.

The judge ordered the law changed to conform with those that support rights of children and gave the Registrar of Births and Deaths 45 days to comply.

2. Cousins can get married: On July 28 in Siaya, High Court judge James Makau freed a young man accused of having sex with his 16-year-old paternal first cousin. The man had appealed against a “guilty” verdict two years earlier by Magistrate Monica Nafula, who had jailed him for 10 years.

The judge ruled that the relationship between the two was not barred under Section 20(1) and 22(1) of the Sexual Offences Act, which lists an uncle, nephew, half-brother, half-sister and adoptive brother as persons who can be subjected to the test of incest.

According to the law, incest is when a male person commits an indecent act with a female person considered in his knowledge as his daughter, granddaughter, sister, mother, niece, aunt or grandmother.

3. 60-year-old Ntimama ‘son’: On September 9, Mr George Njoroge Karanja moved to court to stop the burial of respected Maa leader William ole Ntimama, nine days after his death.

And even though High Court judge Joseph Onguto declined to halt the funeral plans, that did not dampen Mr Karanja’s quest for recognition as the politician’s son. And come next year, the court will rule on whether the remains will be exhumed so as to extract tissue samples for DNA analysis.

4. Kabogo-Waititu fake degree saga: Kiambu Governor William Kabogo sparked off a vicious fight that threatened Kabete Member of Parliament Ferdinand Waititu’s quest to unseat him in the August 2017 General Election when he went to court with allegations that the latter had a fake degree from India’s Punjab University.

The bone of contention was that Mr Waititu’s Certificate of Primary Education bears a different name — Clifford Ndung’u — and there are two institutions registered under that name in different years.

According to Mr Waititu, he sat the CPE exam in 1977 — not 1975 as Mr Kabogo had claimed — using the name Clifford after his family moved from Kiambu to Kibera.

The Kenya National Examinations Council (Knec) tabled documents in support of Mr Waititu and the High Court finally struck out the case on grounds that the matter was not within its jurisdiction to determine.

Whilst the county boss alleged that the MP had breached the Leadership and Integrity Act, the court ruled that the Ethics and Anti-Corruption Commission was better placed to investigate the matter if need be.

5. Hate speech legislators: In June, eight legislators from across the political divide were arraigned before Chief Magistrate Daniel Ogembo over incitement to violence offences.

In the dock were Machakos Senator Johnson Muthama, MPs Junet Mohammed (Suna East), Timothy Bosire (Kitutu Masaba), Aisha Jumwa (Kilifi), Moses Kuria (Gatundu South), Kimani Ngunjiri (Bahati) and Ferdinand Waititu (Kabete) and Busia Woman Representative Florence Mutua.

The legislators famously earned new mockery names — such as “Hate Speech Eight” and “Pangani Six” (after the police station where the male lawmakers were detained). Their several attempts to be released on bond were rejected by a stern and firm High Court judge Joseph Onguto.

6. PLO and plagiarism: One of Kenya’s most eloquent speakers was taken to court for alleged plagiarism.

Constitutional human rights lawyer Wachira Maina sued Prof Patrick Loch Otieno Lumumba, popularly known as PLO Lumumba, for allegedly stealing his intellectual property in the LSK journal titled From Jurisprudence to Poliprudence: The Kenyan Presidential Election Petition 2013 and passing it off as his own work.

He accused PLO for dishonouring his position as the Kenya School of Law’s director and wanted him suspended from the position for lifting 5,000 words verbatim from his piece published in The EastAfrican weekly newspaper.

PLO’s lawyer successfully pleaded an out-of-court settlement, negotiations for which are ongoing.

7. Sh791m NYS fraud scandal: If there is a topic that topped the headlines this year countless times was the National Youth Service (NYS) scandal — right from the time Ms Anne Waiguru was the Devolution Cabinet Secretary to date.

At least 11 suspects have been charged in court and also appear before the Public Accounts Committee (PSC) of the National Assembly over the matter.

Ms Josephine Kabura is, perceived as the main suspect while Ms Waiguru sued Cord leader Raila Odinga for allegedly defaming her by linking her to the scandal.

Political analyst Mutahi Ngunyi is also battling accusations that he was allegedly over-paid by nearly Sh12.5 million for developing a strategy for NYS restructuring.

From those who reportedly blew the whistle on the scandal to those who allegedly participated in the scam and also those said to be carrying the blame on behalf of others, NYS cases will continue next year — despite several applications at the High Court to stop them.

8. Two-thirds gender rule: The debate started back in 2015 when High Court judge Mumbi Ngugi allowed the National Assembly to extend the period for enacting the two-thirds gender rule in elective and appointive bodies with the deadline less than 60 days away. MPs extended the period by a year, prompting two lobbies to sue the Attorney-General, the National Assembly and the Senate for failing to enact the rule.

And the court on December 20 faulted President Uhuru Kenyatta for flouting the gender rule principle in the appointment of Cabinet Secretaries. It also declared that the National Assembly violated the law in approving nominees for Cabinet positions when it was clear that it would be violating the law.

The High Court however suspended the verdict because it would have had a huge impact but ordered that the next Cabinet must follow the law to the letter.

9. Fida family wealth law battle: The Federation of Women Lawyers-Kenya (Fida) remarkably stepped up its bid to change a law that outlines how family property should be shared out after divorce.

In a suit against the AG, Fida wants the court to declare invalid Section 7 of the Matrimonial Property Act, which stipulates that, following divorce, matrimonial property should be divided based on the contribution of each spouse.

But Fida wants such property shared equally — irrespective of how much a spouse contributed to its acquisition. It also wants the court to compel the AG to publish an amendment Act in 30 days after deleting the disputed law.

10. Famous litigants: Since devolution began, court registries and diaries have been flooded by cases regarding employment and delivery of service to the public.

The teachers’ court battle to have their Collective Bargaining Agreement signed and salary increment implemented is the most memorable in this category. They started at the Employment and Labour Relations Court and went all the way to the Court of Appeal.

Health workers called their bluff to boycott work. Nurses returned only after they struck a deal while a nationwide strike by doctors is almost a month old, since December 5 — despite being dragged to court by the Council of Governors.

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