Visram may be front runner in race for CJ post but he has hurdles to jump

Fact: the Supreme Court, and therefore the next Chief Justice (CJ), will be as important to the 2017 General Election as the Independent Election and Boundaries Commission (IEBC).

The smart money says that Court of Appeal Judge Alnashir Visram is a favourite for the position of CJ, partly, it is said, because he has no ethnic baggage. If so, it would be third-time lucky for Visram. In 2011, President Mwai Kibaki appointed him CJ to succeed Evan Gicheru but had to withdraw his name after a political rumpus that the president had ignored the agreement setting up the government of national unity after the 2008 post-election violence.

Justice Visram reapplied for the position in 2013 but failed to make the cut. He may get in this time but it is not a shoe-in. He is likely to face vigorous opposition, not least from the Law Society of Kenya (LSK), which not only opposed his appointment in 2011 but also wanted him prosecuted for perjury. Some will question his temperament and others will think that his decisions in the Biwott versus Standard Group cases show a tendency to protect the powerful and an innate hostility to free speech.

The circumstances of the LSK complaint—which arose from the case of Dr Vijay Kumar Saidha and another versus Tribhuvan Gordhan Bakrania and two others—need detailing. Mr Visram—as he then was—was sued along with his two former law partners, Mr Tribhuvan Gordhan Bakrania and Mr Mahimud Rana, for failing to remit Sh14,167,080, money from the sale of Dr Saidha’s property.

In his defence, Mr Visram swore an affidavit that, on the relevant dates, between September and October 1998, he was no longer a partner in the law firm, having resigned on August 1, 1998. The LSK disputed this, arguing that it was as a member of that law firm that Justice Visram had, on January 6, 1998 and again on January 6, 1999, applied for and got practising certificates for 1998 and 1999.

The dates are crucial. Acording to the affidavit, commissioned by Satish Gautama on February 18, 2005, Visram says he was not involved in the firm — not as a partner or an advisor in Dr Saidha’s transaction.

He explains that Veljee Devshi Bakhrania was a sole proprietorship owned by Bakhrania, not a partnership. He swears that he resigned from the "partnership"—such as it was—on August 1, 1998. Visram says he and Rana were bound to Bakhrania by “a partnership deed” that made it clear that the two were “partners only in the sharing of profits”. Bakhrania owned “the assets, capital and goodwill of the firm” and had “veto power over all the decisions and practice of the firm”.

Visram had joined this unusual partnership—enjoying the benefits but not the burdens of joint practice—on January 1, 1996 but had resigned on August 1, 1998.

The unusual fact in issue here is that, although Visram resigned from partnership in 1998, he did not leave the firm until August 6, 1999, when he wrote to the Secretary of the LSK to notify him that he had left the firm “effective August 1, 1999”.

THE OPPOSITE

In effect, Visram had done the opposite of what most lawyers do: he had quit a profit-sharing partnership but remained in the same firm as a salaried employee. This is crucial for his liability in the Saidha case – partners are jointly and individually liable for the liabilities of the partnership, employees are not. If Visram was an employee a month after he claims to have quit the partnership, he would escape liability. In the High Court, Justice Ransley held that Visram had, indeed, resigned as partner on August 1, 1998. In 2012, the Court of Appeal upheld Justice Ransley’s ruling.

These decisions will give Justice Visram some comfort but the technicalities involved will raise some eyebrows. Conspiracy theorists will note a remarkable prescience on Visram’s part: Saidha lost his money to Visram’s partner Bakhrania barely a month later. That is not good optics for the CJ’s job. And even though he swears that his partner released him from all “obligations and benefits of the partnership” as of August 1, 1998, in fact, technically speaking, that won’t give him real relief. His resignation was not formally done until November 1, 1998 because, Visram avers, the Veljee Devshi Bakhrania file had disappeared from the registry.

The LSK could revisit this issue.

When Justice Visram was appointed Chief Justice in 2011, the LSK had written to the Director of Public Prosecution on November 8 asking that he be charged with perjury for swearing an affidavit calculated to defeat the Saidha case. The DPP did not respond. The LSK submitted the same material to the Judges and Magistrates Vetting Board; the board’s decision on Visram does not indicate whether the material was considered.

But the LSK had a second complaint. It said that Justice Visram’s conduct in the 2009 Court of Appeal case of Peter Odiwour Ngoge v WM Muiruri, Senior Deputy Registrar of the High Court, shows that he is biased and, therefore, unfit to serve on the Bench.

Along with EM Githinji and JG Nyamu, Visram refused to hear a litigant based, unusually, on “recent press reports”. Those reports showed, the court said, that the applicant “had filed a complaint in the UN Human Rights Committee” against “Githinji JA and two other judges”. It was, therefore, in the interest of justice, the court correctly argued, that this case be heard by a bench without Justice Githinji.

However, when that second bench convened, matters went downhill. Visram was now joined by Justices Tunoi and O’Kubasu and the three peremptorily ordered the case struck from the daily cause list. They lamented that the “applicant is not happy appearing before all judges in this country” and issued the extraordinary order that this case was not to be listed again without their permission. They said that this high-handedness was necessary because of “the disparaging, scandalous and scurrilous attacks made by the applicant against the Judiciary”.

TRUCULENT JUDGES

It is, in fact, the judges who are truculent in this case – a scurrilous and scandalous attack on judges is contempt of court. It can be punished by charge sheet if the contempt happened outside court or by summary process if it happened in front of a judge. That three judges of a superior court can refuse to hear a litigant on the theory that he has committed an offence that is unrelated to the case before that court is an extraordinary case of judicial arrogance and impunity.

But Justice Visram will face an even sterner test when his decisions on free speech are closely read, as they will be. In focus will be the two especially notorious decisions in the Biwott versus Standard Group cases mentioned earlier.

In the case, Mr Nicholas Biwott, a former minister in the then President Daniel arap Moi’s Cabinet, sued two British authors—Dr Iain West, a pathologist, and Mr Chester Stern, a journalist—for defamation arising from claims made in Dr Iain West’s Casebook that Biwott was a suspect in the murder of Dr Robert Ouko, former minister for Foreign Affairs in the same regime.

The suit against the two followed on an out-of-court settlement between Biwott on one hand and Bookstop and Text Book Centre on the other—the first for selling Dr Iain West’s Casebook and the second for stocking Rogue Ambassador, a book by former US envoy to Kenya, Mr Smith Hempstone, which had also mentioned the former minister in same vein. Biwott had winkled Sh5 million from Bookstop and Sh7.5 million from Text Book Centre.

In this case, Dr West and his co-author did not file a defence to the claim. Yet in giving what has proved to be, at Sh30 million, the highest ever defamation award locally, Justice Visram wrote what, in effect, was a panegyric to Biwott. Mr Biwott, he said, was an important minister. He represented Kenya in international “conferences, seminars and negotiations”. This book had “severely and wantonly attacked and injured” his reputation.

These findings were based solely on the former minister’s assertions, not on the evidence of character witnesses – Biwott had called none. In this, Justice Visram ignored the fact that Mr Biwott and former Internal Security Permanent Secretary Hezekiah Oyugi had not only been adversely mentioned in the "Gicheru Commission" that inquired into the death of Dr Ouko but had—crucially—been arrested as suspects when the Justice Gicheru-led commission was prematurely dissolved by President Moi.

NO EVIDENCE

Though the two were released for lack of evidence, should Visram not have taken judicial notice of these notoriously well-known facts? The government said it had no evidence to prosecute Biwott and Oyugi yet it had defeated its quest for that evidence by abolishing the Gicheru Commission. Should he not have considered, as lawyer George Kegoro argued in an article in 2011, that Dr Iain West’s Casebook had merely repeated claims that had long been made by others?

Most strangely, Justice Visram assessed the damages to be awarded based on Mr Biwott’s out-of-court settlement with the two bookshops. How could he, not being privy to that settlement?

In the second free speech case involving Visram, Standard Group v Kalamka Ltd, the media house sued Kalamka, the then owners of The People, for defamation. The daily had alleged that the Standard Group planned to fleece its creditors of nearly Sh500 million by fraudulently placing its television station, the Kenya Television Network, in receivership.

In pre-trial discovery, the Standard Group sought more information from The People. The newspaper resisted, arguing that its case was based on whistle-blower disclosures and that any disclosure would compromise the identity of the whistle-blower.

Justice Visram promptly struck out the defence for lack of discovery. Claiming that “the principles governing the award of damages in libel cases were discussed at length by this court in the Biwott case”, he awarded the Standard Group Sh3 million in damages.

This is bizarre at so many levels. First, a case that is not contested—such as the Biwott case—has no value as a precedent simply because the court did not consider the issues at stake. Second, in the special circumstances of this case, Justice Visram certainly went over-board in dismissing the defence of The People, who had all along insisted that their claims were true and would be proved so at trial but that this would be compromised if the whistle-blower was outed.

It may be that Justice Visram will overcome these hurdles but they raise enough doubts about the judge to make him uncomfortable in the interview and in confirmation hearings in Parliament.

Wachira Maina is a constitutional lawyer; [email protected].