Court opens door for Kiplagat's TJRC return

The Truth, Justice and Reconciliation Commission (TJRC) has lost a bid to keep out its embattled chairman Bethwel Kiplagat from office.

Justice Mohammed Warsame ruled Friday that the TJRC commissioners had not disclosed any legal injury they are likely to suffer by the return of Mr Kiplagat and that they should have sought the opinion of the Attorney General before filing a suit against him.

“The commissioners have not established arguable grounds to warrant granting leave to stop Kiplagat from resuming office. There is no evidence that he has failed to perform his duties bestowed on him by the TJRC Act,” ruled Warsame.

Mr Kiplagat’s tenure at the Commission has been dogged by controversies, with allegation against his past leading to his stepping aside as TJRC chairman in 2010 and a tribunal appointed to investigate him.

He moved to the High Court and stopped the tribunal’s proceedings claiming they had no jurisdiction to investigate his conduct. He was later cleared by the court and given the go ahead to resume his duties.

Mr Kiplagat's return was not welcomed by the commissioners who wrote asking him to stay away from the office, but the embattled chairman defied the request.

The commission then filed a petition seeking an order to restrain Mr Kiplagat from accessing TJRC’s offices, intimidating workers or interfering with the work of the commissioners.

They wanted the court to compel Chief Justice Willy Mutunga to constitute a new tribunal to investigate Mr Kiplagat after the tenure of another one formed by former CJ Evan Gicheru expired before it had even started its work formally.

However, Justice Warsame ruled that he cannot compel the CJ to constitute a tribunal when there is no evidence to invoke Section 17 of the TJRC Act which mandates him to form a tribunal.

He ruled that the CJ can only be compelled to form a tribunal when there is a statutory duty or prove that there is unacceptable conduct from the chairman, and that the role of CJ is not to assume powers not donated to him by questioning the past conduct of Mr Kiplagat.

Justice Warsame had no kind words for the commissioners, accusing them of abusing the court process in the disguise of public interest.

He ruled that the commissioners had no legal capacity to file the petition because it was not for them to put hurdles for Mr Kiplagat.

“This case has been a waste of time which should have been used in litigating serious matters. Wearing a public mask in the disguise of public interest will not help when genuine litigants are on the queue waiting for justice,” said Warsame.

He ordered that the TJRC commissioners will individually pay the cost of the suit to ensure public funds are not wasted in frivolous and useless petitions.

The judge said that Mr Kiplagat’s appointment was not political and that approving his removal will be like questioning the authority and integrity of the selection committee which nominated him, Parliament which approved the nomination and the President who gazetted his appointment.