Judges meet as pressure piles on Chief Justice
By Standard Team
Issues of performance and management of the Judiciary return to haunt Chief Justice Evan Gicheru as Judges converge this morning for their most important annual meeting where they take stock of problems affecting the justice system.
The Chief Justice, who is expected to open the annual Judges Colloquium at Mombasa Serena Hotel, has his hands full of controversial issues facing the Judiciary, which the members of the Bench urgently want to deliberate on.
The Law Society of Kenya (LSK), lawyers and some judges who spoke to The Standard in confidence, pointed out trouble areas that they said Gicheru must address head-on if the tip-top integrity of the Judiciary that the Government tried to create in 2003 is to be achieved.
The LSK, which last week threatened to call on the President to appoint a tribunal against the Chief Justice, said Gicheru had his best chance in the five-day meeting to make a turn-around of the Judiciary and stem the tide of criticism.
About 45 judges and 11 others of the Court of Appeal will attend the meeting.
Key issues
Among the issues expected to feature prominently in the agenda is the “impunity” of judges in awarding exorbitant awards in defamation cases, especially against the media, blatantly flouting precedence set by the Court of Appeal.
Some of the most outstanding awards have exposed the weakness in the judgements as the Court of Appeal has whittled them down drastically.
Also facing the judges as they soul-search are issues raised by LSK and other stakeholders yesterday, which point to a big rift between members of the Bench and the Bar.
Grievances between the lawyers and the Judiciary boiled over last Wednesday when a group of lawyers were dispersed by police at the High Court as they sought to see the Chief Justice to protest against a Nakuru magistrate.
The LSK, angered by the police action, took on Gicheru and asked him to deal with issues of performance of magistrates and what they termed “poor management of the Judiciary”. They threatened to call on the President to institute action against him.
The LSK also called for the removal of some of the judicial officers under Gicheru’s watch who they allege are standing in the way of quick dispensation of justice.
The judges who spoke to The Standard yesterday said this year’s colloquium may not be business as usual as many of them were set to push for implementation of issues they feel have stalled.
They said the colloquium was a waste of time and that it hardly implements anything they pass.
“One of the things we agreed on last year at the colloquium is that no judge should be transferred from a station before they have stayed for three years. But some of us have been moved even before settling down for eight months,” said one judge, who was heading to Mombasa on Sunday.
Judges said a good number of them were frustrated, and some had rebelled, by some of the decisions made by the CJ like the ruling that all applications against the Government be referred to Nairobi.
They cited the case of Kisumu Judge Joseph Karanja who last month openly went against the directive and made a ruling against the Government in Kisumu.
And prominent lawyers continue to raise concerns on the hefty awards courts have slapped on media houses lately, saying it amounted to impunity on the part of judges who have ignored earlier Appeal Court rulings.
The lawyers are now urging the judges to refer to a libel case against Gicheru versus a publisher in 2005.
This decision saw a libel award of Sh2.25m in favour of the CJ, enhanced by the Court of Appeal to Sh6million at a time when the norm was to declare libel awards between Sh10m and Sh30m.
“Currently, people who are below the CJ in calibre, including magistrates, have been awarded even higher amounts than the Sh6 million he was given and that should be questioned,” said LSK vice-chairman James Mwamu.
The precedent-setting Court of Appeal decision in another KTDA case versus a lawyer that saw the scaling down of a libel award from Sh10m to Sh1.5m by the Appeal Court may be cited to illustrate impunity in awarding for defamation.
Retired Court of Appeal Judge A.B Shah was awarded Sh7m, Advocate Joseph Kiangoi Sh8million and Chief Magistrate Margaret Wachira Sh10m, among other hefty awards are some of the matters judges said they would raise at today’s meeting.
LSK said the laws on defamation were overdue for repeal and did not reflect the dynamism of the Kenyan society anymore.
LSK’s vice-chairman said: “I strongly propose that laws on defamation be amended and that we borrow lessons from the US example where it is liberal with less hearings.”
“The hefty awards are astronomical and ridiculously high. Bad precedent has been set and I read them as an attempt to stifle the media,” said senior counsel and former Kabete MP Paul Muite.
And the East Africa Law Society chairman Tom Ojienda also decried the inconsistency in the awards: “The hefty awards are varying from case to case. The Judiciary must settle on guidelines to be followed in the awards,” Ojienda said.
“The awards reflect reputation and personality, but certain people perceived to be more important receive less awards. This issue must be settled,” added Ojienda.
Mr Justin Muturi, an advocate and former Siakago MP, says laws of defamation and libel are colonial relics.
“Laws relating to media should all be harnessed under the proposed Freedom of Information Law,” Muturi said
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