Madan was Kenya’s best Chief Justice - Daily Nation

Madan was Kenya’s best Chief Justice

Thursday November 28 2013

Chunilal Bhangwandas Madan

Chunilal Bhangwandas Madan. Photo/FILE NATION MEDIA GROUP

By NATION TEAM
More by this Author

Kenya has had more than 13 Chief Justices since independence. But Chunilal Bhangwandas Madan is considered the greatest of them all.


Appointed on October 9, 1984, he was arguably both the best judge to ever sit on the Kenyan Judiciary and also the best CJ to ever to head it.


A former student of Jamhuri High School, he was called to the Bar in London at the Middle Temple Inn at the age of 21.

Madan is remembered for his brilliance and independence from the Executive. His judgements, rendered in prose and poetry, still excite the intellect of law students and practicing advocates alike.


He is best remembered for having saved Stanley Munga Githunguri when he prohibited the AG from prosecuting him.


Observing that the prosecutorial powers were being used in an oppressive manner, he uttered the following famous words:


“Stanley Munga Githgunguri. You have been beseeching the court for an order of prohibition. Take the order. This court gives it to you. When you leave here raise your eyes up into the hills. Utter a prayer of thankfulness that your fundamental rights are protected under the juridical system of Kenya.”


Unfortunately, he had one of the shortest tenures as Chief Justice just about 13 months.


In 1949 as a young lawyer, he sat on a colonial committee that recommended draconian measures against African newspapers.

He wrote in his lone dissenting opinion “…I do not believe that in a free and democratic state the time can ever come, except when a state of war or some such grave emergency exists, to make it necessary to suspend any newspapers.

The very idea of giving powers to suspend newspapers is contrary to the idea of freedom…healthy, independent and fearless criticism is necessary for the proper functioning of democratic states and the fear of suppression will affect not merely the newspapers which have no genuine desire to be fair or accurate but also those who have an earnest desire to observe the rules of high journalistic ethics and will form the very foundation of the state.’’


The following are the other CJs in the order in which they were appointed.

SIR JOHN AINLEY (December 1962)


A career judge with the British colonial office, Sir John Ainley was independent Kenya’s first Chief Justice, having assumed office a year before independence.


Sir John had the singular honour of having sworn in the last Governor-General of Kenya, Sir Malcolm Macdonald, in 1963, and Kenya’s founding President Mzee Jomo Kenyatta in 1964.


He is best remembered as the judge who convicted Kisilu Mutua for the assassination of Pio Gama Pinto and sentenced him to death on July 15, 1965.

In his judgement, he courageously observed that not all who had been involved in the murder were before the court and wondered why “the prime movers of the whole affair had not been thoroughly investigated”.

DENNIS FARREL (May 1968)


Dennis Farrel goes down in history as Kenya’s shortest-lived CJ. He was appointed in an acting capacity in May 1968 only to retire in July the same year.

Some believe he was sent home so early because of his handling of the criminal appeal of Bildad Kaggia, the former freedom fighter and Kenyatta critic.

Kaggia had been convicted of holding a political meeting without a licence and sentenced to one year’s imprisonment.

He appealed and his case came up before the acting CJ Farrel and a Mr Justice Dalton. They upheld the conviction, but reduced the sentence to six months.

He was immediately retired and the first indigenous African CJ appointed on the same day that Farrel delivered his ruling.

MALUKI KITILI MWENDWA (July 1968)


Contrary to the buzz that surrounds his name, Kitili Mwendwa was one of Kenya’s worst CJs. Many senior lawyers regard his tenure as a disaster.

Mwendwa was one of the most educated African lawyers, having obtained a Bachelor of Laws degree from Exeter University and a Masters degree in Law from Oxford University.

He had been admitted to the Bar in England and was a Barrister of Lincoln’s Inn.


He came back to Kenya in 1962 and joined the civil service quickly rising to Permanent Secretary in 1963 and as the
Solicitor General in 1964. He was appointed CJ aged only 39.


Kenyatta’s decision to name a young lawyer with no judicial or legal experience to such a position of responsibility was widely questioned.


Mwendwa’s weak grasp of the law first emerged in his handling of a popular case, Republic v. El Mann.

The judge ruled that the Constitution be interpreted in the same way as any other statute — a ruling seen as the genesis of the situation where the Constitution and Bill of Rights in Kenya were rendered totally ineffective in protecting citizens’ rights.

He was forced to resign in 1971 after he was implicated in a plot to overthrow Kenyatta.

SIR JAMES WICKS (July 1971)


After the failed experiment with an African judge, the Kenyatta government went back to the system of appointing foreign contract judges to head the Judiciary.


Sir James Wicks goes down in history as Kenya’s longest serving, between 1971 and 1982. He is also the only one to have served two Heads of State, Presidents Kenyatta and Moi.

It is during his tenure that the Executive literally took over and operated the Judiciary as it pleased.

Under Sir James, the Executive did not lose any critical cases and judges were known to consult with the government whenever the Executive had an interest in a case.

One such case was that of Anarita Karimi Njeru –vs- Republic. Sitting with Justice Cecil Miller, with one judge dissenting from their opinion, the two ruled that the High Court had no jurisdiction to hear a constitutional petition by someone who had attempted another remedy in law.

SIR ALFRED SIMPSON (January 1982)


He took over a judiciary that was already thoroughly compromised.

Even if he had wanted, he could have done little to undo the damage already inflicted by Sir James.

Known as a good and sober judge with a fine legal mind, Simpson had a string of good judgments in his legal history.


One such judgment was that in Nathan Kahara’s case where he upheld the right of a citizen to pursue a private criminal prosecution before the Judiciary.


Simpson had ruled that the right of private prosecution was a constitutional safeguard against capricious, corrupt or biased failure or refusal of the prosecuting authorities to prosecute offenders against the law.


But he retained good ties with the executive which he revealed during the trial of Andrew Mungai Muthemba for treason.

While acquitting Muthemba, Simpson observed that a confession that Muthemba had given saying he was acting at the instance of his cousin, Charles Njonjo, was just an attempt to tarnish “the Honourable Minister’s well-earned reputation”.

CECIL HENRY ETHELWOOD MILLER (November 1986)


Following the tenure of Madan, arguably the best Chief Justice in Kenya ever, came the tenure of arguably the worst.

Miller took the reins amidst great optimism. Born in Guyana, he joined the Kenya High Court in 1964 as the first judge of African origin.

He was promoted to the Court of Appeal after 14 years, was the first chairman of the Law Reform Commission.


As a Chief Justice, he supervised the total ruining of the judiciary and it is during his tenure that the government removed the security of tenure for judges and the Chief Justice.

He raised no objection to it and instead used the new powers to sack Justice Patrick O’Connor who had resisted Miller’s attempt to interfere with cases before him. No chief Justice ever did more to destroy the judiciary as did Miller.

ROBIN ALLAN WINSTON HANCOX (September 1989)


Born in England where he attended school, Hancox came to Kenya after being called to the Bar and joined the colonial judiciary as a Resident Magistrate in 1957.


He joined the Court of Appeal in 1982 and served as the Chairman of Law Reform Commission from 1987 until his appointment as Chief Justice. He had a good legal mind but was neither a good nor sober judge.


A stepson of Sir James Wicks, who had married his mother, Justice Hancox exercised the same subservience to the Executive as his stepfather.


An outrageous action of his was appointing English Judge Justice Norbury Dugdale as the full time Duty Judge.

At a time when constitutional litigation was flooding the courts challenging the Moi regime, Justice Dugdale acted as the gate keeper to keep cases from being placed before liberal judges.

FRED KWASI APALOO (April 1992)


Born in the Volta Region of Ghana, Apaloo studied law in England and was admitted to the Bar at the Honorary Society of the Middle Temple Inn.

He returned home to practice law where in 1964 he was appointed a High Court judge upon the independence of Ghana in 1957.


As a Judge in Ghana, he distinguished himself by acquitting five persons including three associates of President Kwame Nkurumah who had been charged with treason against his regime. In 1977, he was appointed as Chief Justice of Ghana.


He retired at the age of 65 years and joined the Kenya Judiciary as a Court of Appeal judge. Justice Apaloo’s tenure was however insignificant.

ABDUL MAJID COCKAR (December 1994)


He was the most conscientious and the humblest of all Chief Justices of Kenya.

He refused to vacate his modest South C residence for the official residence of the Chief Justice, rejected the official limousine and security outside his office hours, and was a common sight along Uhuru Highway as he drove himself to and from work in a Peugeot 504 saloon.


A very private and religious man, little is known about him and his tenure was as uneventful as Justice Apaloo’s.

He was never accused of any misdeeds, not even rumoured to have misconducted himself in any way. His humility, however, bordered on weakness.

ZACCHAEUS RICHARD CHESONI (December 1997)


Justice Chesoni goes down in history as the most unqualified person ever to assume the position of CJ.


By the time he was appointed as an acting Court of Appeal judge in February 1983, Chesoni had numerous law suits before him at the High Court. One creditor had filed a petition before the High Court seeking that he be declared bankrupt.


By 1984, the situation again became so embarrassing that Chesoni was forced to tender his resignation. He stayed out for six years and was again surprisingly reappointed in 1990.


Before long, a warrant was issued for his arrest for failure to pay his debts. But Chesoni was the ultimate survivor.


President Moi appointed him as the Chairman of the Electoral Commission of Kenya with the mandate to supervise the first multi –party elections.

He served the Commission until 1997 when he was appointed Chief Justice. He is regarded as the person who entrenched corruption in the judiciary.

BERNARD CHUNGA (September 1999)


The second irony in the Kenya judiciary is that Chief Justice Bernard Chunga was the man with the most strength of character, and the political power, to reform the judiciary among all Chief Justices.


A strict disciplinarian and excellent administrator, Chunga was known to peremptorily attend to complaints in the judiciary and to effectively resolve them.

A former Deputy Director of Public Prosecution, Chunga was feared by court personnel, magistrates and even some judges for his no nonsense approach to administration.


He was accused that while acting as the chief prosecutor, he conducted a purge on government critics and was an accessory to the torture of many accused persons who were charged in court.


When the NARC government came to power in 2003, Chunga was immediately suspended and later resigned rather than face a tribunal.

JOHNSTONE EVAN GICHERU (March 2003)


Never was so much expected by so many from one person and so little delivered. Chief Justice Gicheru came to the helm of the judiciary after a distinguished judicial career that started in 1982 when he was appointed as High Court Judge.


He secured national admiration in 1991 when he chaired the Judicial Commission of Inquiry into the Disappearance and Death of the then Minister for Foreign Affairs, Dr. Robert Ouko.

He steered the Commission with such fearlessness that President Moi disbanded it before the end of that year.


But the courageous judge of appeal became a shadow of himself when he was appointed as Chief Justice. He became the most inaccessible CJ in judicial history.


Had he properly discharged his duties, the crisis that returned in the judiciary after the radical surgery would have been avoided.

WILLY MUTUNGA (2013)


He is the first CJ to be appointed under the new Constitution. A former law lecturer and detainee in the Kanu days, he assumed office with high ratings and public confidence after he was publicly vetted. He is also president of the Supreme Court.

In the short period, he has managed to institute many reforms that have, among others, made the wheels of justice move faster to clear the thousands of undetermined cases.

However, his tenure has been hit by controversy including the resignation of his deputy Nancy Baraza after a scandal in which she was alleged to have pinched the nose of a female guard at a city shopping mall.

Then there was the controversy over the Supreme Court’s dismissal of the presidential election petition filed by Cord leader Raila Odinga.