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Has our Judiciary put justice on sale?


By Paul Ochieng'

For as long as man has existed, as he developed, advanced and perfected a system of governing himself, one aspect has remained a permanent feature in all government systems; a judicial mechanism.

From the Sumerian city-states system of 4500 BC, arguably the oldest government in the world, to the celebrated modern day United States democracy, there has always been an arm charged with the responsibility of dispute resolution and legal interpretations.

The seeds of modern day judicial systems were sown by Henry II of England (1154-1189), who established a jury of 12 local knights to settle disputes over the ownership of land. 

And throughout history, all judicial systems have been premised on among other basic principles, that of serving justice to all under their jurisdictions. The Kenyan Judiciary is no exception.

As an institution established and sustained by Kenyans, the judiciary is expected to ensure that it delivers fair judgements to all regardless of socio-economic and political status.

However, in the recent past, our Judiciary has come under sharp criticism over the manner in which it has been executing its mandate.

Kenyans have repeatedly questioned the manner in which judicial officers have handled various cases; and these concerns are not baseless.

There appears to be consistent trend where, the moneyed and powerful members of our society, accused of various wrongdoings, appear to have their justice served extraordinarily fast and sometimes in a skewed manner, a total contrast to the way cases involving the less privileged Kenyans are handled.

Just look at it this way:

On 27th January 2020, controversial Embakasi East MP Babu Owino was released on a Sh10 million cash bail in a case where he is accused of shooting Felix Orinda alias DJ Evolve at a city club on January 17. The DJ is still fighting for his life in a city hospital as Babu roams around freely.

In January 2020, The Director of Public Prosecutions was prohibited from charging former Machakos Senator Johnson Muthama with incitement to violence over an issue that happened in 2015. Muthama was in 2015 accused of making inflammatory utterances during a Coalition for Reforms and Democracy rally at Uhuru Park.

On 4th February 2020, Chief Magistrate Martha Mutuku ordered the unfreezing of Nairobi Governor Mike Sonko’s bank accounts saying the Asset Recovery Agency had failed to approach the court for an extension when the orders to freeze them expired in December last year. Sonko is at the centre of a multimillion corruption scandal that has rocked City Hall under his regime, with him being accused of pocketing a huge chunk of the taxpayers’ money. Sonko had earlier been granted a Kshs 15 million bail.

In 2019, then Kiambu Governor Ferdinand Waititu has obtained an anticipatory bail of Ksh.500, 000. The High Court in Kiambu approved Waititu’s application for anticipatory bail after the Governor was arrested by anti-graft detectives. The bail was granted by Magistrate Bryan Khaemba after an affidavit was presented to the court by Waititu’s lawyer Ashiolya Biko. Waititu is accused of defrauding the people of Kiambu millions of shillings through skewed procurement processes.

In May 2018, flamboyant city Pastor, James Ng’anga of Neno Evangelism was acquitted in a case where he was charged with causing the death of a woman in a fatal car crash. Ng’ang’a and his three co-accused; Simon Maina, Police Inspector Christopher Nzilu Nzioka and police inspector Patrick Kahindi Baya were facing four charges, chief among them, causing death by dangerous driving.

In 2018 two accomplices to fake Doctor Mugo wa Wairimu were released on Sh200,000 cash bail or a bond of Sh500,000. Victor Kamunya, alias Doctor Victor, and Risper Ouma were released after Magistrate Martha Mutuku said the prosecution failed to produce enough reason to continue holding the two. They were accused of operating the business at Millan Health International Limited in Kayole, Nairobi, yet they were not registered by the Kenya Pharmacy and Poisons Board. Kamunya and Ouma are also said to have been using the title ‘doctor’ yet they had not acquired the necessary academic qualifications. Both denied the charges at the Milimani law courts. 3 years before the Mugo wa Wairimu was released on a Ksh 1 million cash bail or a Ksh 5 million bond with a surety of a similar amount. He disappeared into thin air and was still operating his clinic. Despite the runaway crime by Mugo wa Wairimu the courts still release his accomplices back into society to continue administering medical service under false pretense.

In 2018 Kebs Managing Director Charles Ongwae and several other people were released on bond following charges of attempted murder and abuse of office. Ongwae and six other people were charged with allegedly allowing substandard fertilizer into the country. Despite the fact that the suspects would interfere with the evidence and witnesses they were still released from custody. The amounts deposited as bail were questionable. These are individuals who had been charged with poisoning millions of Kenyans yet the magistrate retorted that irrespective of the matter being serious, it still qualified for bail.

Now, compare and contrast the above with the following cases involving less privileged Kenyans:

In February 2020, a Naivasha court acquitted nine suspects charged with causing the deaths of 48 people following the Solai dam tragedy two years ago. After 18 months of adjournments, the suspects who were brought before the court in a dramatic way amid tight security on May 9, 2018, walked free after Chief Magistrate Kennedy Bidali ruled that there was lack of "willingness" and support from the Directorate of Public Prosecution office in prosecuting the case. Mr Perry Mansukh Kansagara, the managing director of Patel Coffee Estates, Mr Vinoj Jaya Kumar, the general manager, and seven others had been charged with 48 counts of manslaughter and other criminal offences. However, in a ruling that shocked prosecutors, lawyers for the victims, human rights groups and politicians, Naivasha Chief Magistrate Kennedy Bidali set all the nine free, saying prosecutors had failed to show a willingness to prosecute the matter. Relatives of the victims, lawyers and human rights activists went to court anticipating a ruling on several applications, including one by the Kenya Human Rights Commission (KHCR) seeking to represent the victims.

In 2016, a newly married 25-year-old man was sentenced to two years in jail after admitting to shoplifting two bottles of body lotion worth Sh780. Joseph Omwiri Omwoyo confessed to stealing the body lotion at a supermarket in Nairobi. In his defence, Omwoyo, who was before Milimani Chief Magistrate Daniel Ogembo, told the court that he had just gotten married but was unemployed and lacked money to maintain his new bride. Ogembo however sentenced him without the cash fine alternative on grounds that he had previously been charged with a similar offence hence he is a serial offender.

In 2014 two men were sentenced to six years imprisonment by a High Court in Siaya County after being found guilty of stealing four chickens. Fredrick Otieno, 21, and George Onyango, 29, were charged for committing the act on December 1 and 2 2014 at Lundha sub-location in Gem Sub County in Siaya. In his ruling Senior Resident Magistrate Jared Sani found both guilty of the burglary act contrary to section 304 (2) of the Penal Code.

And the list goes on and on.

This therefore begs the question: Is justice in Kenya now out rightly for sale? When will the poor man ever get justice?

Of course, Chief Justice David Maraga has constantly denied that the rulings and judgements from his courts are skewed but not many Kenyans are convinced yet.

Paul Ochieng' is a Nairobi based lawyer and a commentator on legal issues

EDITORIAL NOTE: The views expressed in this article are purely those of the author and do not by any means reflect the official position of The County, its management and/or its representatives.

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