By Gibson Kamau Kuria SC

The apparent claim by Mr. Mwangi that the Judiciary is not applying legal principles is based on forgetfulness of our history”

A two day Anti – Graft Conference held last month at the Bomas of Kenya was preceded by three articles by Mr. Paul Mwangi, the constitutional advisor of former Prime Minister Raila Odinga, published in the Sunday Nation editions of 6th, 13th and 20th January, 2019 in which he created the erroneous impression of the law. This article seeks to correct that wrong impression.

Next to the article published on 6th January, 2019, was another article titled “BLOW TO DPP HAJI AS PROSECUTING GRAFT CASES GOT HARDER”. In the latter, Mr. Sam Kiplagat discussed the judgment of the Court of Appeal delivered on 20th December, 2018, in favour of Prof. Njuguna Ndung’u, the former Governor of the Central Bank of Kenya. The Court of Appeal in applying an exception known in Kenya and also in virtually all commonwealth countries ordered that the prosecution be stopped. Professor Njuguna Ndungu’s judgment was a majority one. One judge dissented.

It is an irresistible inference that Mr. Mwangi has based his entire unfair criticism of the Judiciary on one recent case of the Court of Appeal. He has ignored many decisions of the Court of Appeal and the High Court. I discuss those cases below to demonstrate that the Judiciary is not pro – suspects.

The judgment in Professor Njuguna’s case falls within an exception recognized by that Court. It does not represent the position of the entire Judiciary. To be fair to the Judiciary, a review of the performance of its work as a whole would entail a review of decisions of the Chief Magistrate’s Court, the High Court, the Court of Appeal and the Supreme Court. Mr. Mwangi did not undertake such a review before expressing his criticisms which are not borne out by the majority of the court decisions. His opinion is based on anecdotes and possibly rumors. In those articles, he wrongly criticized the Judiciary, which is headed by Honorable Chief Justice Maraga, and the legal profession, which is led by Mr. Allen Gichuhi. He accused both of obstructing the fight against corruption. Individual Judges or advocates might have fallen short of the standards but the institutions are neither incompetent nor as corrupt as claimed by him. Our Bench and Bar compare with the best in the World. The Kenya Bar is respected worldwide for promoting the rule of law and constitutionalism for decades.

Below, I use court decisions to demonstrate that the Judiciary has been unfairly criticized and also that as the Chief Justice Maraga has said, on many occasions, the Constitution, vide Article 10, demands that every organ adheres to national values which include upholding the rule of law and the basic rights of the individual. I further demonstrate that the independence of the Judiciary is one of the basic features of a constitutional democracy and that it must be upheld at all times as nothing else will function without that independence. The referendum which ratified the Constitution in 2010 accepted this truth on which constitutional democracies act.

In his articles published in the Sunday Nation on 6th and 13th January, 2019, respectively, Mr. Paul Mwangi said that the Maraga Courts are standing in the way of justice. He did not give any illustrations from any court decisions.

One of the recent decisions on when the court will stop the prosecution of a suspect charged with an offence which fits into the general description of corruption was in Court Of Appeal, Civil Application No. 234 Of 2015 (UR 194/15): Esther Njeri Ngari –v- Director Of Public Prosecutions. The court (Githinji, Koome and GBM Kariuki JJA) rejected the application of the applicant who sought to have the prosecution stopped on the ground that the Director of Public Prosecutions did not have evidence which demonstrated prima facie that she had anything to do with the theft of Kshs. 11.5 Million of the Kenya Meat Commission. In refusing her application, the Court of Appeal stated the law as follows:-

[18] We are in total agreement with the above findings, that each case is considered according to its own merits. It is only in instances where there are trumped up charges (that cannot be founded in law) or the prosecution is not undertaken according to the law, or it is actuated by malice and meant to harass the applicant, having no basis at all in law or in fact. It is in that rare occasion that the Court of Appeal has intervened by dint of its inherent jurisdiction to ensure the ends of justice and prevent the abuse of the process as indeed this is a country that is governed by the Constitution and the dictates of the rule of law and not the whims of the DPP. Does this case fall within the above parameters? In answering this question, we have exercised abundant caution having forewarned that we are dealing with an interlocutory application pending the hearing of the substantive petition before the High Court and the appeal to be filed.

It is worthy of note that Honorable Justice Githinji was also one of the Judges who decided Prof. Njuguna’s case. He clearly cannot be wrong only when he finds in favour of the suspect. In the Esther Ngari case supra, he found for the Director of Public Prosecutions.

It is significant, and Mr. Mwangi does not appear to be aware of this fact, that the court states that it is only in rare cases that the court interferes with the prosecution.

Besides overlooking the Commonwealth comparative jurisprudence on the issue, he has also ignored three other truths.

The first one is that as the Preamble of the Constitution states, in 2010, Kenyans used a referendum to give to themselves and future generations a Constitution, “aspiring for a government based on the essential values of human rights and the rule of law.” Graft must be fought in accordance with the dictates of the rule of law.

The second thing is that the Constitution has given to the three branches of the Government their respective jobs in the governance of this Country and that the Judiciary has been assigned the task of serving as the guardian of the Constitution and the people’s rights. In discharge of this mandate, it will free those who are wrongly charged and even stop charges where their object is to oppress the individual. In Mary Wambui Munene –v- Peter Gichuki King’ara & 2 Others [2014] eKLR, the Supreme Court (Mutunga, Rawal, Tunoi, Ojwang’, Ibrahim, Wanjala and Njoki Ndungu J.) described that role as follows:-

[83]  The Court’s position in this case was that decisions of the Supreme Court are only arrived at after conscientious and due consideration. This approach is the basis upon which we evaluate the present scenario. As already noted, the Joho Case declared Section 76(1)(a) of the Elections Act a nullity-a declaration that was clear as well as unqualified. Indeed, the Court of Appeal appreciated the sanctity of this declaration and dismissed the appeals before it in accordance with comparative judicial practice around the world. In India, for instance, Justice B.P Sinha in Bengal Immunity Co. Ltd v Bihar, (1955) 2 S.C.R 603, (‘55’) A. SC 661 observed:

Under the Constitution and even otherwise, this Court is naturally looked upon by the country as the custodian of law and the Constitution, and if this Court were to review its own previous decisions merely because another view is possible, the litigant-public may be encouraged to think that it is always worthwhile taking a chance with the highest Court in the land.”

As Chief Justice Maraga has pointed out on a number of occasions, Article 49 (1) (g) of the Constitution provides that an arrested person has the right to be released on bond or bail on reasonable conditions pending a charge or trial unless there are compelling reasons not to be released. In his articles, Mr. Mwangi did not indicate in which cases the Judiciary interpreted and applied the Constitution wrongly.

The third thing which he overlooks is that the Constitution embodies the social contracts which Kenyans have entered into with one another. It indicates how the Country is to be governed. The Bill of Rights sets out the limits of the State’s power over the individual. This limitation is placed on all organs of Government – the Executive, the Legislature and the Judiciary. In an appeal from Jamaica, this principle was stated as follows in Hinds -v- Queen (1976) 1 All ER, 353:-

The more recent constitutions of the Westminster model, unlike their earlier prototypes include a chapter dealing with fundamental rights and freedoms. The provisions of this chapter form part of the substantive law of the state and until amended by whatever special procedure is laid down in the constitution for this purpose, impose a fetter on the exercise by the legislature, the executive and the judiciary of the plenitude of their powers.

It is quite clear that the Executive branch of the Government is complaining about the fetter of its power by the Constitution which the courts have enforced as they are mandated to do. It bears repeating that on 4th August, 2010, the Constitution was ratified by 67% of the voters. Mr. Mwangi overlooked the fact that the Constitution addresses many needs of the individual. Fighting graft is not the only task which the Constitution deals with. The individual has many needs such as living in dignity as guaranteed by Article 28 of the Constitution and in liberty as mandated by Articles 29 and 49 of the Constitution. The debate of the graft war must be a holistic one. Article 159 of the Constitution provides that judicial authority is derived from the people and vests in and shall be exercised by the Courts and Tribunals established by and under the Constitution. Article 171 of the Constitution establishes the Judicial Service Commission. Article 172 of the Constitution provides that the Judicial Service Commission shall promote and facilitate the independence and accountability of the Judiciary. Mr. Mwangi, as is demonstrated in this article, is criticising the Judiciary for discharging the constitutional mandate which the people of Kenya have given it. Essentially, his criticism of the Judiciary is a criticism of the people who conferred, on the Judiciary, its independence. That is an issue which is for debate at a forum convened to review the Constitution. The Judges do not engage in such debates as their task is to enforce the Constitution as it is. The criticism of the Judiciary or any other institution is welcome and indeed it is the lifeline of a democracy. However, that criticism must be temperate and based on facts or evidence. If he were not the advisor of Honorable Raila Odinga, one could ignore his unfair criticism of the Judiciary. Similarly, if he were not a lawyer, one could ignore those articles which the Sunday Nation published. However, lawyers and prominent leaders have an obligation to maintain public confidence in courts and other institutions. The rationale for this need was given by Lord Denning who quoted the following passage from Sydney Smith:-

Nations fall when Judges are unjust because there is nothing which the multitude thinks worth defending: but Nations do not fall which are treated as we are treated and why? Because this is a country of the law; because a Jude is a Judge for the peasant as well as for the palace; because every man’s happiness is guarded from fixed rules of tyranny or caprice.

Mr. Mwangi has breached two of the duties of the five duties of an advocate which were formulated by Lord McMillan – a duty to his client, a duty to his opponent, a duty to the court, a duty to himself and a duty to the State. A lawyer is required to assist the State in the administration of justice. That duty is breached where the function of the courts is misrepresented to the public as has happened.

The complaint that the Judiciary is not as harsh as it should be towards suspects is not new. It was made way back in 2006 when the former Minister Chris Murungaru successfully challenged the constitutionality of a letter from Kenya Anti – Corruption Commission requiring him to provide a written statement enumerating all his property within 7 days. Please see Murungaru –v- Kenya Anti – Corruption Commission & Another (2006) 2 KLR 733 (Lesiit, Wendoh and Emukule JJ). That criticism was answered by the court as I demonstrate below. Honorable Murungaru’s application to stop the Kenya Anti – Corruption Commission from requiring him to make a statement enumerating all his properties pending the hearing of his case to enforce his constitutional rights was refused by the High Court (Nyamu J, as he then was). It was, however, allowed by the Court of Appeal on conditions which would not hinder the Respondent from executing its mandate.

The Court of Appeal, at an interlocutory stage, and the High Court, after it heard his case, made it clear that their intervention was small as the fight against corruption must be allowed to proceed. First, as stated above, the High Court Judge, Justice Nyamu (as he then was) refused a temporary stay of the demand that he supplies the information sought. Following that refusal, Honorable Murungaru was charged in court and he denied the charge. That was an act of the Judiciary now being criticized. He made an application to the Court of Appeal which gave a stay of the demand pending the hearing of his appeal against the refusal. In the course of granting the stay, the Court of Appeal described the constitutional setting in which graft is fought and the need not to tie the hands of the prosecuting authorities. This was in Christopher Ndarathi Murungaru –v- Kenya Anti – Corruption Commission & Another (2006) eKLR where the court (Omolo, Tunoi and O’Kubasu JJA) stated the law as follows:-

Lastly, before we leave the matter, Professor Muigai told us that their strongest point on the motion before us is the public interest. We understood him to be saying that the Kenyan public is very impatient with the fact that cases involving corruption or economic crimes hardly go on in the courts because of applications like the one we are dealing with. Our short answer to Professor Muigai is this. We recognize and are well aware of the fact that the public has a legitimate interest in seeing that crime, of whatever nature, is detected, prosecuted and adequately punished. But in our view, the Constitution of the Republic is a reflection of the supreme public interest and its provisions must be upheld by the courts, sometimes even to the annoyance of the public. The only institution charged with the duty to interpret the provisions of the Constitution and to enforce those provisions is the High Court and where it is permissible, with an appeal to the Court of Appeal. We have said before and we will repeat it. The Kenyan nation has chosen the path of democracy; our Constitution itself talks of what is justifiable in a democratic society. Democracy is often an inefficient and at times a messy system. A dictatorship, on the other hand, might be quite efficient and less messy. In a dictatorship, we could simply round up all those persons we suspect to be involved in corruption and economic crimes and simply lock them up without much ado. That is not the path Kenya has taken. It has opted for the rule of law and the rule of law implies due process. The courts must stick to that path even if the public may in any particular case want a contrary thing and even if those who are mighty and powerful might ignore the court’s decisions. Occasionally, those who have been mighty and powerful are the ones who would run to seek the protection of the courts when circumstances have changed. The courts must continue to give justice to all and sundry irrespective of their status or former status. What orders should we make in the motion before us?

We think we should stay and we hereby do, the implementation and enforcement of the NOTICE dated 9th January, 2006 issued by the Director of the Commission to the Applicant and since Criminal Case No. ACC 11 of 2006 in the Magistrate’s court was instituted pursuant to that NOTICE, the hearing of that case is also hereby stayed pending hearing and determination of the appeal brought to this Court or the hearing and determination of the Applicant’s Originating Summons in the High Court whichever is the earlier. In other words, this order of stay does not prevent the High Court from hearing and determining the constitutionality of the sections of the Act challenged by the Applicant. We also wish to make it abundantly clear that this order of stay does not in any way prevent the Commission from independently investigating the Applicant and if necessary, recommending his being charged with an offence of corruption or economic crime based on the evidence which the Commission may obtain by its own investigations. The costs of the motion before us shall be in the appeal already filed. Those shall be our orders.

In his case in the High Court, Honorable Murungaru was seeking 12 reliefs. After hearing his case, the High Court granted only one out of his 12 prayers. This was the one that sought the quashing of the letter dated 9th January, 2006, requiring him to provide a written statement enumerating all his properties. The reason for the decision was that it contravened his constitutional rights.

In Court of Appeal at Nairobi, Criminal Application No. 1 of 2015: Helmuth Rame –v- Republic (Kihara Kariuki, Mwera & Murgor JJA), the Principal State Counsel representing the Director of Public Prosecutions applied for the withdrawal of a charge and the same was refused by the Chief Magistrate’s Court. The Applicant was charged with conspiracy to defraud contrary to Section 317 of the Penal Code as well as on three counts of obtaining money by false pretences. The complainant successfully opposed that withdrawal. The State Counsel applied to the High Court for revision and setting aside of the order of the Chief Magistrate’s Court. This was refused by Hon. Justice Msagha Mbogholi. Being aggrieved by that decision, the suspect made an application to the Court of Appeal for a stay of further proceedings in the Chief Magistrate’s Court. The Court of Appeal dismissed that application.

In Civil Application No. 51 of 2008: Republic –v- Kenya Anti – Corruption Commission (Tunoi, Githinji & Waki JJA), the Court of Appeal granted an applicant a stay of criminal proceedings pending the hearing of his intended appeal reasoning that unless it did so, the applicant would undergo an expensive trial which could result in his denial of his liberty whilst his appeal was pending before the court.

Professor Njuguna Ndung’u’s case fell within the exception which was mentioned in the Esther Ngari case supra which is discussed above. This exception is known to all the Commonwealth countries as demonstrated by the Australian case of Williams –v- Spautz 174 CLR 509, and in England by the House of Lords decision in Bennett -v- Horseferry (1993) Vol. 3 AER page 138. This jurisdiction was exercised in Canada in In the Matter of the Attorney General of Canada on behalf of the United States of America and Adeyemi Peter Alfred – Adekeye, Supreme Court of British Columbia, Docket 25413.

In the former, the High Court of Australia held that the court has power to stop the prosecution of a person where the dominant purpose is not to serve the ends of criminal justice. It stated as follows:-

15. It is well established that Australian superior courts have inherent jurisdiction to stay proceedings which are an abuse of process (5) Clyne v. N.S.W. Bar Association [1960] HCA 40(1960) 104 CLR 186, at p 201; Barton v. The Queen [1980] HCA 48(1980) 147 CLR 75, at pp 96, 107, 116; Jago. Although the term “inherent jurisdiction” has acquired common usage in the present context, the question is strictly one of the power of a court to stay proceedings. That power arises from the need for the court to be able to exercise effectively the jurisdiction which the court has to dispose of the proceedings. The existence of that jurisdiction has long been recognized by the House of Lords (6) Metropolitan Bank v. Pooley (1885) 10 App Cas 210; Connelly v. D.P.P. (1964) AC 1254; Reg. v. Humphrys (1977) AC 1. The jurisdiction extends to both civil and criminal proceedings. As Lord Morris of Borth-y-Gest observed in Connelly v. D.P.P. (7) (1964) AC, at p 1301.

“(A) court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process.”

20. In our view, the power must extend to the prevention of an abuse of process resulting in oppression, even if the moving party has a prima facie case or must be assumed to have a prima facie case. Take, for example, a situation in which the moving party commences criminal proceedings. He or she can establish a prima facie case against the defendant but has no intention of prosecuting the proceedings to a conclusion because he or she wishes to use them only as a means of extorting a pecuniary benefit from the defendant. It would be extraordinary if the court lacked power to prevent the abuse of process in these circumstances.

In Bennett -v- Horseferry (1993) Vol. 3 AER page 138, the House of Lords stopped a prosecution of a person who had been illegally deported from South Africa at the request of the British authorities because to do so was to sanction undermining of the rule of law. The court stated the law as follows:-

Whatever differences there may be between the legal systems of South Africa, the United States, New Zealand and this country, many of the basic principles to which they seek to give effect stem from common roots. There is, I think, no principle more basic to any proper system of law than the maintenance of the rule of law itself. When it is shown that the law enforcement agency responsible for bringing a prosecution has only been enabled to do so by participating in violations of international law and of the laws of another state in order to secure the presence of the accused within the territorial jurisdiction of the court, I think that respect for the rule of law demands that the court take cognisance of that circumstance. To hold that the court may turn a blind eye to executive lawlessness beyond the frontiers of its own jurisdiction is, to my mind, an insular and unacceptable view.

In this country, this principle was first applied in Githunguri –v- Republic (1985) KLR page 92 (Simpson, Sachdeva and Mbaya JJA). The case instituted against the former Kiambaa M.P Honorable Stanley Munga Githunguri was terminated. The apparent claim by Mr. Mwangi that the Judiciary is not applying legal principles is based on forgetfulness of our history. And also overlooking the practice in Commonwealth countries.

In the High Court, the law has been summarized by Justice Odunga in Eunice Khalwali Miima -v- Director Public of Prosecutions & 2 Others [2017] eKLR, in which his Lordship summarized the law as follows:-

45. The law in these kind of matters is that it is upon the applicant to satisfy the Court that the discretion given to the DPP to investigate and prosecute is being abused and ought to be interfered with and this burden and standard was expounded in Kuria & 3 Others vs. Attorney General (supra) where it was held:

A prerogative order is an order of serious nature and cannot and should not be granted lightly. It should only be granted where there is an abuse of the process of law, which will have the effect of stopping the prosecution already commenced. There should be concrete grounds for supposing that the continued prosecution of a criminal case manifests an abuse of the judicial procedure, much that the public interest would be best served by the staying of the prosecution…In the instant case there is no evidence of malice, no evidence of unlawful actions, no evidence of excess or want of authority, no evidence of harassment or intimidation or even of manipulation of court process so as to seriously deprecate the likelihood that the applicants might not get a fair trial as provided under section 77 of the Constitution..”

46. As is stated in Halsbury’s Laws of England 4th Ed. Vol. 1(1) para 12 page 270:

The remedies of quashing orders (formerly known as orders of certiorari), prohibiting orders (formerly known as orders of prohibition), mandatory orders (formerly known as orders of mandamus)…are all discretionary. The Court has a wide discretion whether to grant relief at all and if so, what form of relief to grant. In deciding whether to grant relief the court will take into account the conduct of the party applying, and consider whether it has not been such as to disentitle him to relief.”

47. In this case it is my view that the issues raised by the applicant ought to be raised before the trial Court. It is therefore my view that it is premature at this stage to make findings that the criminal proceedings ought to be quashed. The applicant’s case being that she took all the necessary steps in the matter and was not part of the theft conspiracy cannot be dealt with and resolved by this Court in these proceedings in light of the fact that the case facing the applicant, it would seem, is not that she was the principal but that she was an accessory to the theft.

48. With due respect the applicant’s evidence falls short of what is required to prove ulterior motives in the institution of criminal proceedings.  The fact that the applicant faces the risk of interdiction per se cannot be evidence of malice. With due respect the applicant has simply failed to make out a case that would warrant the serious orders sought herein.

49. As was held by Lenaola, J (as he then was) in the case of Daniel Ndungu vs. Director of Public Prosecutions & Another (2013) eKLR:

In conclusion, the Petitioner ought to face his accusers, prove his innocence or otherwise and submit to the consequences of the law should he be found culpable”.

50. As was expressed in Kuria & 3 Others vs. Attorney General (supra):

In the circumstances of this case it would be in the interest of the applicants, the respondents, the complainants, the litigants and the public at large that the criminal prosecution be heard and determined quickly in order to know where the truth lies and set the issues to rest, giving the applicants the chance to clear their names.”

51. In the premises I am not satisfied that this is a proper case in which the court ought to bring the criminal proceedings to a halt. The applicant will be afforded an opportunity to defend herself, cross-examine witnesses and adduce evidence in support of her case and that in my view is the proper course to take in the circumstances of this case.

That statement of the law which gives effect to the principle stated in the Esther Ngari case supra represents the law which our Judiciary is applying.

The search for solutions to the graft problems demands that research be done into what the Judiciary has actually done as opposed to what, on the face of it, it does.

It also calls for examining how constitutional democracies fight against graft. The trashing of careers of the Kenya jurists should stop.

Gibson Kamau Kuria, Senior Counsel and former lecturer in law, University of Nairobi.

Next articleIssue #41 March 2019
The PLATFORM for Law, Justice and Society is a monthly publication by Gitobu Imanyara & Company that was established in 2014 to provide a platform where Kenyans can share their opinions on current issues of concerns in the country, Africa, and beyond.