Kenya Insights

Tag: petition

  • Petition Filed for the Removal of DCJ Mwilu from Office Over Gachagua’s Impeachment Case

    Petition Filed for the Removal of DCJ Mwilu from Office Over Gachagua’s Impeachment Case

    Deputy Chief Justice Philomena Mwilu faces a fresh ouster bid following allegations of gross misconduct related to the impeachment case of former Deputy President Rigathi Gachagua.

    The petition, filed Tuesday at the Judicial Service Commission (JSC), accuses DCJ Mwilu of usurping powers constitutionally reserved for Chief Justice Martha Koome.

    Nairobi resident Belinda Egesa, through her lawyers at Bashir & Associates Advocates, filed the petition just two weeks after Mwilu and six other Supreme Court judges received a reprieve in a separate misconduct case.

    The High Court had previously halted the JSC from initiating disciplinary proceedings against them.

    The petition centers on last week’s Court of Appeal verdict which ruled that DCJ Mwilu acted unlawfully when she assigned Justices Erick Ogolla, Anthony Mrima, and Fridah Mugambi to a High Court case in Kerugoya.

    That case, filed by two Kirinyaga residents, challenged the swearing-in of Professor Kithure Kindiki as Deputy President following Gachagua’s impeachment.

    “The Deputy Chief Justice acted in excess of her mandate under Article 165(4) by unlawfully empanelling a High Court bench on October 18, 2024.

    This was a direct usurpation of the Chief Justice’s constitutional role,” the petition states.

    According to the Court of Appeal’s ruling, the Mwilu-appointed bench—which ultimately allowed Prof. Kindiki to be sworn in as Deputy President—was illegally constituted because Mwilu lacked the authority reserved for the Chief Justice.

    Petitioner Seeks Removal from Office

    Based on the Court of Appeal’s findings, Egesa wants the JSC to investigate Mwilu for alleged gross misconduct, incompetence, and violations of the Constitution, potentially recommending her removal from office to the President.

    “The consequence of the unconstitutional conduct of the Deputy Chief Justice in improperly empanelling the bench of three Judges resulted in setting aside of the conservatory orders in Kerugoya High Court, thus greenlighting the swearing-in of Prof. Kindiki as the Deputy President replacing Mr. Gachagua. These events cannot be practically reversed, resulting in a crisis of legality and institutional integrity,” argues Egesa in her petition.

    The petition further alleges that Mwilu violated the Judicial Service Code of Conduct and Ethics Regulations 2020, specifically regulations 9, 11, and 13, which involve impartiality, integrity, and accountability of judges.

    “The Deputy Chief Justice failed to carry out the duties of her office with impartiality and objectivity including administrative duties,” states the petition.

    Egesa contends that Mwilu’s actions have “placed the Judiciary in disrepute” and “eroded public confidence in the Judiciary.”

    Third Ouster Attempt

    This marks the third time DCJ Mwilu has faced removal proceedings stemming from high-profile cases.

    In November 2021, she survived an ouster attempt when a three-judge bench of the High Court thwarted efforts by then-Director of Public Prosecutions Noordin Haji and Director of Criminal Investigations George Kinoti to remove her from office over allegations of corruption and misconduct.

    The new petition relies heavily on the Court of Appeal’s finding that “indubitably, we find and hold that there was no evidence that the Deputy Chief Justice was the acting Chief Justice or that there existed exceptional circumstances that permitted the Deputy Chief Justice to exercise the mandate constitutionally reserved for the Chief Justice by Article 165(4) of the Constitution.”

    The JSC has yet to respond to the petition or announce when it will begin investigating the allegations against the Deputy Chief Justice.

  • Kenyan Sues Elon Musk’s X Over Hate Speech, Incitement And Porn

    Kenyan Sues Elon Musk’s X Over Hate Speech, Incitement And Porn

    A Kenyan citizen has sued X Corp, the owner of the social media platform “X” (formerly Twitter), accusing the company of enabling the spread of harmful and inappropriate content in Kenya.

    In the petition filed under certificate of urgency, the petitioner claims that the platform is awash with content promoting pornography, hate speech, incitement to violence, and violations of privacy.

    “The X corp has with the sole end of profiteering allowed, entertained, encouraged, acquiesced in and/or promoted in its social media platform “X” (formerly Twitter) the publication and access in Kenya of content that constitutes hate speech, incitement to violence, advocacy of hatred that constitutes ethnic incitement, vilification,” read the court documents

    Felix Kibet who has also sued Attorney General Dorcas Oduor, Communication Authority of Kenya (CAK), the Kenya film classification board KFCB (KFCB), National Cohesion and Integration Commission (NCIC) and Office of Data Protection Commission allege that they have failed to discharge their constitutional and statutory mandate, abetting the illegal and unconstitutional acts of the platform.

    “The acts of the 1st Respondent are in contravention of Article 156 (4 ) (a) and (6) of the Constitution, Section 46 (A) of the Kenya Information and Communications Act, 1998, Section 15 (1) (a) of the Film and Stage Plays Act, Section 25 (1) of the National Integration and Cohesion Act and Section 6 & 25 of the Data Protection Act, 2019 respectively,” says Kibet.

    Kibet criticized the platform for allowing users to create and operate pseudo accounts using aliases, fake names, and even the identities of others, including their photos.

    High Court judge justice Bahati Mwamuye heard that the platform’s permissive features, that include the ability for users to post writings, photos, and videos without adequate regulation has become a breeding ground for vulgarity, obscenity, and unregulated discourse.

    “The 1st Respondent’s social media platform “X” (formerly Twitter) permit users to make posts in the form of writings, photos and videos. Further through its versatile feature called “Spaces” it permits users to have ungoverned live-streamed audio conversations on any topic around the sun, at any time using any character of language including vulgarity and obscenity,” read the court documents.

    He now wants the court to restrain the X corp from permitting the publication and access in Kenya of content that is showing, or advertising pornography, nudity and lewdness.

    Kibet also wants the X corp restrained from permitting the publication and access in Kenya of content that constitutes hate speech, incitement to violence, advocacy of hatred that constitutes ethnic incitement, vilification of others or incitement to cause harm.

    “Pending the hearing and determination of this application inter-partes, a conservatory order do and is hereby issued restraining the 1st Respondent, from permitting the publication and access in Kenya of content that is showing, directing to and/or advertising pornography, nudity and lewdness in its social media platform “X” (formerly Twitter),” read the court documents.

    “Unless the Honourable court urgently intervenes by granting the orders sought herein, the 1st Respondent will persist in its violation of Kenyans’ human rights and contravention of the Constitution, the consequences of which are dire,” the papers add.

    The court directed the Petitioner to serve the Application, Petition, and associated Directions on the Respondents by close of business on January 22, and to file an Affidavit(s) of Service by January 24, 2025.

    The Respondents have been ordered to file and serve their responses to both the Application and Petition by close of business February 7.

    The Petitioner will also be allowed to file and serve a rejoinder, if necessary, by February 14.

    The court has scheduled a mention on February 19, to confirm compliance with the timelines and to issue further directions.

  • Havi Files Petition For The Removal Of CJ Koome, Supreme Court Judges

    Havi Files Petition For The Removal Of CJ Koome, Supreme Court Judges

    Former Law Society of Kenya (LSK) President Nelson Havi has sustained his onslaught on the Judiciary and is now calling for the removal of Chief Justice Martha Koome and all the Supreme Court judges.

    Havi filed a petition to the Judiciary Service Commission (JSC) and urged the Commission to compel President William Ruto to form a tribunal and begin the process of firing the seven, accusing them of gross misconduct.

    According to Havi, there is reasonable apprehension in the legal fraternity and the general public that the recent practice of the Supreme Court of Kenya entertaining and determining appeals from the Court of Appeal on civil and commercial matters where colossal amounts of money is involved but which have no novel question of general public importance, is motivated by corruption.

    “I swear this Affidavit in support of the complaint against Justices Martha Karambu Koome, Philomena Mbete Mwilu, Mohammed Khadar Ibrahim, (Dr) Smokin C Wanjala, Njoki Ndungu, Isaac Lenaola and William Ouko and ask that the Judicial Service Commission recommends to the President of the Republic of Kenya the formation of a Tribunal to remove the Judges from office,” part of the affidavit read.

    Lost confidence

    Havi claims that there is a general consensus in the legal fraternity within the country that “the public has lost confidence in the Supreme Court as a result of its decisions.”

    “The Chief Justice of the Republic of Kenya and judges of the Supreme Court like Ceaser’s wife, ought not to even be under suspicion of corruption,” he says.

    Among the complaints he has listed concerning CJ Koome is the lack of leadership and direction as expected of a Chief Justice, especially compared to former CJ Evans Gicheru.

    “Unlike Honourable Mr Justice Evans Gicheru, Honourable Lady Justice Martha Karambu Koome has failed to provide leadership and direction for the Supreme Court of Kenya and the entire Judiciary,” his statement read.

    Havi claims that he has come to believe allegations made by  Senior Counsel Ahmednasir Abdullahi that four of the Supreme Court judges had been bribed in their handling of the presidential election  petition.

    “I have demonstrated with instances herein above, how the seven judges of the Supreme Court have purported to enact laws to suit their interests, curtail and limit fundamental rights and freedoms, alter legal doctrines and principles, constituted themselves claimants in causes and proceeded to adjudicate those cause in disregard of trite law and express  constitutional and statutory provisions knowing well that there is no repreive to their unlawful actions and decisions,” he says.

    Determines appeal

    Havi also says the recent practice  by the Supreme Court to entertain and determines appeals from the Court of Appeal on civil and commercial matters involving colossal sums of money have left fears of  their possible involvement in corruption.

    “I do not understand what would motivate Judges of the Supreme Court if not corruption, to relegate themselves to the level of a Taxing Officer and start determining the quantum of instruction fees , a matter where no novel question of public importance is involved,” he states.

    He cites the case of Kenya Airports Authority versus Otieno Ragot and Company Advocates (2024) eKLR where Justices Koome, Ibrahim, Wanjala, Njoki and Lenaola allegedly unlawfully execised jurisdiction over a civil matter and altered a settled private law on ascertainment of instruction fees.

    He also cites the case of Geo Chem Middle East versus Kenya Bureau of Standards (2020) eKLR where Justice Mwilu, Ibrahim, Wanjala, Njoki and Lenaola declared themselves not to have jurisdiction over the matter and yet went ahead to determine it instead of disqualifying themselves.

    Havi, Senior Counsel Ahmednasir Abdullahi and other senior lawyers have been calling for the resignation of CJ Koome for months citing deep-rooted corruption in the institution.

    Assume jurisdiction

    Havi was yesterday supported by Ahmednasir who, in a post on X, said the judges of the Supreme Court blatantly lie and assume jurisdiction when the Court in law has no jurisdiction to hear the petitions.

    “The Court is paid crazy money to assume jurisdiction and the deal ALWAYS is to overturn the judgment of the Court of Appeal,” he posted.

    Havi also referred to a 2022 contempt of court ruling in which he, alongside his Assisting Counsel Esther Ang’awa and fellow SC Ahmednassir, were convicted.

    “To that end, when the petition challenging the election of President William Ruto was filed, the seven Judges of the Supreme Court of Kenya acting through Honourable Lady Justice Martha Karambu Koome sent a message that the two of us I should not appear in the matter. We obliged and stayed away, ” Havi says in his petition.

    However, fresh details have emerged regarding the heightened clamour for changes in the Judiciary orchestrated by the two who were once sworn enemies.

    Ahmednasir initially kicked off the campaign on a revenge mission against CJ Koome and other Supreme Court judges after they barred him from ever appearing before them.

    This followed his endless attacks on the judges, whom he accused of corruption and incompetence.

    Critics of Ahmednassir have revealed that as a strong supporter of President William Ruto, he has to recruit an impressive array of supporters who saw the benefit of destabilising the Judiciary ahead of the 2027 elections, and several senior lawyers who themselves had personal beef against the Judiciary leadership.

    Some of his colleagues say Grand Mullah’s beef with the Judiciary has been due to his desire to wield control over the courts at the highest level.

    His career has been characterized by controversies. In 2014 for example, the LSK sought to suspend him from practising law for six months for insulting a judge. This decision was later overturned on appeal.

    Reports indicate that he has been using threats, judicial blackmail, and government connections to manipulate outcomes.

    Equally, Judiciary employees have even accused him of bullying them and spreading false accusations of corruption against judges when they refuse to be compromised.

    Ahmeddnassir’s name has also been linked to a Somali group which was accused of laundering ransom money paid to Somali pirates. It was Ahmednasir’s law firm that represented members of these cartels amid suspicion that he was used to launder the money. In an interview with a local media house in September 2021, Ahmednasir acknowledged that the allegations of his ties with the Somali pirates were known at the highest levels of government and because of that President Mwai Kibaki’s State House was initially opposed to him sitting in the Judicial Service Commission.