It’s not always about justice: There is poetry and finesse in judgments

Saturday January 12 2019

Kenya Law's CEO Mr. Longet Terer presents the new Kenya Law Report to Ms.Kawesa Rose and Ms. Namukasa Mariam (in stripes) of the Uganda Law development Center during a knowledge exchange program at Kenya Law. With Mr Terer are Kenya Law officials. PHOTO| FILE| NATION MEDIA GROUP

Kenya Law's CEO Mr. Longet Terer presents the new Kenya Law Report to Ms.Kawesa Rose and Ms. Namukasa Mariam (in stripes) of the Uganda Law development Center during a knowledge exchange program at Kenya Law. With Mr Terer are Kenya Law officials. PHOTO| FILE| NATION MEDIA GROUP 

ELVIS ONDIEKI
By ELVIS ONDIEKI
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The petitioner argued he was arrested by police in Nairobi one morning in 1989 and taken to Central Police Station and later to his Buruburu home where his house was ransacked and some items confiscated.

He told High Court Judge Chacha Mwita he was later taken to Jogoo Road Police Station then to Nyayo House, where he spent 14 days in solitary confinement amid various acts of torture by police.

But the petitioner, Mr David Nyanjom Owak, despite his vivid descriptions of the ordeal of December 1-15, 1989, lost his case seeking State compensation.

Justice Mwita, in his verdict delivered on December 14, said Mr Nyanjom’s case cannot stand because he did not provide a single witness to support his case.

“Nobody or other independent witness, not even the petitioner’s immediate family member, testified to corroborate the petitioner’s evidence that he had disappeared and for the entire period of two weeks and that they did not know where he was,” said the judge.

AVAILABLE ON WEBSITE

Justice Mwita’s judgment is available in full on the website of the National Council for Law Reporting, a government agency which engages in, among other functions, collecting and publishing court decisions that can offer lessons to Kenyans on the application of the law.

The judgment on Mr Nyanjom’s case may soon find its way into one of the books that the council releases every year, which capture precedent-setting court decisions.

The books, much as they are meant for lawyers, judges and law scholars, can also be viewed as a work of art, what with the language judges often use to express themselves.

An example among many are the words of Mr Justice Philip Waki as he explained why a hospital cannot detain a corpse while pushing for payment from the family.

“My judicial conscience is troubled. For I think, with utmost respect to the hospital, that on any view it would be equally repugnant to public policy to sanction the use of dead bodies as objects in the game of commercial ping pong. Dead bodies are for interment or cremation or disposal without delay unless there is a dispute on where to dispose them or who should do it. The dead ought to “REST IN PEACE” while those who are left alive struggle with the realities of life such as payment of debts,” Justice Waki stated in a decision of 1998, when he was a High Court Judge.

Some judgments have a history of packing poetry within them, notably the ones by Chunilal Bhagwandas Madan, Kenya’s Chief Justice between 1985 and 1989.

In a 1986 judgment he wrote: “Stanley Munga Githunguri, you have been beseeching the Court for Order of Prohibition. Take the order. This court gives it to you. When you leave here raise your eyes up unto the hills. Utter a prayer of thankfulness that your fundamental rights are protected under the juridical system of Kenya.”

According to Mr Long’et Terer, the CEO of the National Council for Law Reporting (commonly known as Kenya Law), even laymen can gain something from reading past judgments.

“It can give you a practical application of those laws. Often, the law will say one statement but the courts have to break it down as to, for example, what is public participation. So that, as a citizen, then you know that public participation does not mean that you will be called and ferried and paid to attend a meeting,” Mr Terer told the Saturday Nation. At the Kenya Law website, he said, they receive more than five million visitors every month who visit the site to check on the judgments, to download Kenya Gazette publications or Kenyan laws.

Kenya Law has been in existence since 2001 and Mr Terer said that on their website, there are currently 125,000 decisions from the Supreme Court, the Court of Appeal and all the High Court stations across Kenya.

Each of the books published by Kenya Law costs Sh4,500. In a year, they release a volume of three books, meaning it will cost Sh13,500 to get all the books that cover about 150 judgments selected from all that were delivered in a year.

“It is definitely readable,” Mr Terer said when asked if he can recommend to someone who wants to read for fun. “Anyone who has an interest in the law can pick up this volume and go through it.”

So, who decides what goes into that book? Mr Terer said a panel of lawyers goes through all the decisions from all courts except the magistrate’s courts.

“As they read through them, they then make a determination as to whether that decision should be reported; whether it is significant enough; whether the exposition of the law by the judicial officer is so good and excellent that it deserves to be portrayed to everyone else,” he said.

In some cases, Kenya Law releases summaries of cases to break them down for readers.

Mr Terer gave us a summary of the decisions a person can access at Kenya Law for his or her benefit. One of them is the case of rights of consumers to know the nutritional composition of soft drinks.

“The court, in Mark Ndumia Ndung’u v Nairobi Bottlers Ltd and another, noted that glass soda bottles did not contain nutritional information mostly found in plastic bottled beverages and that this was discriminatory, unconstitutional and unlawful,” he said.

In another case, the High Court pronounced itself on the issue of demolitions of houses.

“In Susan Waithera Kariuki and 4 others v Town Clerk, Nairobi City Council and 2 others, the court held that the applicants’ right to housing overrode Town Clerk’s duty to plan the city, and that it was unconstitutional to forcefully evict the applicants from the houses they had occupied for over 40 years,” said Mr Terer.

 

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