From the archives: A look at Justice Paul Kihara Kariuki - Daily Nation

A strong personality clouded by tight ties with the State House

Tuesday February 13 2018

Justice Paul Kihara Kariuki

Justice Paul Kihara Kariuki, who has been nominated by President Kenyatta to be the new Attorney-General PHOTO | THE NAIROBI LAW MONTHLY 

By GEORGE KEGORO
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Justice Paul Kihara Kariuki is part of Kenya’s religious elite. His father, Obadiah Kariuki, educated at Alliance High School, was among the first African bishops of the Anglican Church in Kenya, and pioneered in many other areas.

For a long time, Justice Kariuki served as chancellor of the same church, a position he only relinquished when he became a judge.

Following the purge of the Judiciary instituted by the Narc Government, a large number of vacancies arose in the High Court, which President Kibaki filled by appointing eight acting judges in June, his first judicial appointments, and another 11 in October 2003.

LAW SCHOOL

Justice Kariuki was one of the judges appointed in the latter batch, and went on to be confirmed in this position.

Before this, Justice Kariuki had just been appointed the director of the Kenya School of Law, a position that had become vacant after previous holder, Leonard Njagi, was appointed a High Court judge.

Justice Kariuki served in this position only briefly as he was also appointed a judge. He, however, stayed long enough to move the school from its Valley Road address to its present locale in Karen, a situation that delayed his reporting to his new judicial duties.

On appointment, Justice Kariuki became the duty judge at the High Court, replacing Justice Isaac Lenaola who had been appointed a member of the tribunal to investigate judges who chose to contest their removal from the bench.

Justice Kariuki was to hold the position of duty judge for the next two years.

RINGERA COMMITTEE

In 2006, Chief Justice Gicheru appointed an integrity review committee, the previous such committee having been the fateful Ringera Committee, which had recommended the purge in the Judiciary.

The Chief Justice appointed Justice Kariuki to head this committee.

The main accomplishment of the Kariuki committee, as it came to be called, was that it addressed, for the first time, financial management issues within the Judiciary and made far-reaching recommendations.

Its report led to a purge on administrative staff who were in charge of these processes.

In 2009, the Chief Justice appointed Justice Kariuki to head the newly established Judicial Training Institute (JTI). The idea behind a dedicated institution to address the training needs of the Judiciary had been under discussion for a long time, and only came to fruition during the Gicheru era.

CHIEF JUSTICE

The Chief Justice had initially appointed Rosemelle Mutoka, a magistrate, as the first director of the JTI, an appointment he revoked in order to appoint Justice Kariuki.

Justice Kariuki is credited with establishing the JTI as a viable institution. From this, it can be guessed that Justice Kariuki had a special relationship with Chief Justice Gicheru.

Together with Justice Joseph Nyamu, he was regarded as one of the confidantes of the former Chief Justice. Throughout his tenure, the Chief Justice spared the two from the frequent transfers around the country to which all other judges were subjected, and as a result, they always served in Nairobi.

However, during his last months in office, there was a falling out between the CJ and Justice Kariuki, leading to his posting, first, to judicial duty at Milimani Commercial Courts and, thereafter, to Machakos (where he was stationed at the time this article was written in 2011).

FALLOUT

It is unclear what led to the fallout, but it is thought to have resulted from the expose by Nation that Justice Kariuki was being groomed to succeed Justice Gicheru.

After the media reports, Justice Kariuki, who until then had served as fulltime director of JTI, was assigned judicial duties without the courtesy of being formally notified about this.

He learnt from colleagues that his name had suddenly appeared on the cause list. The former Chief Justice also failed to approve a foreign trip for him.

It is interesting to go back to the initial media reports themselves. Nation had revealed that the funeral of the son of former Cabinet minister Njenga Karume, attended by a large number of politicians, had been used as the launching pad for Justice Kariuki’s bid for Chief Justice.

The judge had been given a visible seat during the funeral and had also been asked to address other mourners, in a clear attempt to profile him to the public.

NICHOLAS BIWOTT

The revelation was subsequently given credence during the rancorous debates that followed the nomination by President Kibaki of Justice Visram for Chief Justice.

In explaining this nomination, both Prime Minister Raila Odinga and the Vice President Kalonzo Musyoka, informed Parliament that Justice Kariuki had been proposed for the position by the President.

The suits that Justice Kariuki has decided portray him as decisive and resolute. For example, he assessed damages of only Sh85 in a suit against Kenya Power and Lighting for malicious prosecution.

In 2003, the Kenya Anti-Corruption Commission (now Ethics and Anti-Corruption Commission) filed a suit against LZ Construction, a company associated with Nicholas Biwott.

The KACC had moved to court and sought the recovery of Yaya Centre as a corruptly acquired asset.

Justice Kariuki, however, struck out the suit on the basis that the KACC had failed to give notice to the owners of Yaya Centre to show that they had acquired the asset other than through corruption, which he found to be a requirement of the law the KACC was seeking to implement.

It is easy to disagree with this decision: why would the court case not be the forum where LZ could show that Yaya Centre had been acquired lawfully?

Justice Kariuki has been involved in a number of cases where the freedom of speech was in issue. He assessed damages in a case filed by Nairobi lawyer John Machira against the Standard newspaper.

He noted that Mr Machira had already sued Nation for the same story and Justice Kuloba had awarded him Sh10 million against the Nation.

He subsequently awarded Mr Machira Sh1.5 million, taking into account the award against the Nation.

MARTHA KARUA

He criticised high defamation awards, saying: “I must confess that I am quite unable to understand the rationale for awarding what in my humble view are grossly exorbitant sums to Mr Joshua Kulei, Hon Christopher Obure and Hon Nicholas Biwott respectively.”

Whereas Justice Kariuki had employed a reasonable approach in the Machira case, he backpedalled when, in 2006, he was confronted with a defamation case in which then Justice minister Martha Karua was the plaintiff.

In the early days of the Narc Government, Ms Karua, then the minister for Water and in a relatively weak political position, sued the Standard over an article titled Politicians just want licence to misbehave.

By the time Justice Kariuki decided the suit in 2006, Karua’s stock had risen considerably as she had become a powerful minister for Justice and Constitutional Affairs.

The article in question was a general rant against politicians and was a reflection of the disillusionment that was quickly setting in as the bubble of the Narc euphoria collapsed around the country.

The part that offended Ms Karua read: “Not surprisingly, already there are some people who see the Koinange expose as a plot by Minister for Water Martha Karua to dilute her recent experience — all in the name of the conflict war between NAK and LDP — the Narc factions.”

KOINANGE STREET EXPOSE

This article had been preceded by an expose in a section of the media alleging that senior members of the government were caught on camera during a police swoop on commercial sex workers on Koinange Street in Nairobi.

About two weeks before the expose, there had been reports that Ms Karua had been carjacked at night while in the company of a Catholic priest, a story that caused some embarrassment to the government.

In her suit, Ms Karua complained that these words had depicted her as having set up the story about the Koinange Street expose, as a deliberate attempt to deflect attention from the media interest that had been generated by her car-jacking incident.

Justice Kariuki agreed with this interpretation of the words, which he found to be defamatory, and awarded the minister Sh4 million. He awarded a further Sh500,000 as aggravated damages.

According to the court, these words contained three untrue allegations against Ms Karua: First, that there were some people who saw the Koinange Street exposé as a plot by the minister to deflect attention from her carjacking experience.

Secondly, that she was involved in a scheme to undermine her political opponents. Thirdly, that there was something sinister in the fact that the plaintiff was a victim of car-jacking.

However, looked at objectively, the words in question do not bear the meaning that the court imputed to them.

'POLITICAL LICENCE'

To demonstrate this, it is necessary to set out the whole statement that gave rise to the suit, as the court did when analysing it:

First, the author of the statement said that it was “some people” and himself who had made that allegation. It is those people that in his view, were taking political licence. Further, it is against these people that his diatribe was directed.

Second, there is no actual allegation that Ms Karua was involved in a scheme of undermining opponents. This was the court’s own subjective interpretation of the words.

In substance, the author had merely said the allegations by “some people” were aimed at gaining a political advantage in the context of the factional rivalries in the government.

Why would undermining of opponents have to be read into it? Moreover, is politics not about undermining the opposition so as to get into power?

Thirdly, the court interpreted the words in question as having suggested that there was something sinister in the carjacking of the minister. In their plain meaning, the words in question do not make this allegation. The court was simply putting words in the mouth of the author.

Finally, even if these words had the meaning that the court read into them, it is difficult to see what exactly was defamatory about them.

DEFAMATION CASES

Whereas, only one year before, Justice Kariuki had scorned at awards made by other judges in defamation cases which he considered too high, an ward of Sh4.5 million was, in the circumstances, also high.

What had happened so that the judge abandoned his view about high levels of damages for defamation suits?

Justice Kariuki is a strong candidate for the position of Chief Justice. His main asset is that he has accomplished tasks that were previously assigned to him with a high measure of efficiency.

He is also viewed as possessing a strong and decisive personality, one that would offer solid leadership.

His main drawback, however, is that he is now seen as a representative of vested interests. Those who desire to see a Chief Justice who does not have the appearance of political baggage would not consider him suitable for the position.

Secondly, Justice Kariuki has been very close to former Chief Justice Evan Gicheru. In a system of patronage such as the one in which the Kenyan Judiciary has been steeped, the few who find themselves in the favour of the establishment tend to lose the support and respect of colleagues who are not as lucky.

One of the objectives to be achieved in the search for a new Chief Justice is to overcome the negative aspects of the Gicheru legacy, which is at play in the choice of the next Chief Justice.

It might be felt that there was no point in getting rid of Justice Gicheru only to replace him with a person perceived as one his right-hand men.

This article was first published in 2011.