Court dismisses case on use of Mzee Kenyatta image on new notes

The High Court has dismissed a petition filed by activist Okiya Omtatah and MP Simon Mbugua challenging the use of Mzee Kenyatta portrait on the new currency notes.

Two of the three-judge bench, Justices Kimondo Kanyi and Arsenath Ongeri, said the case lacked merit.

According to the judges, although the portrait appears larger than the Kenyatta International Convention Centre (KICC) on the bank notes, it forms part of the building's image.

DISPUTE

But in a dissenting decision, Justice Anthony Mrima said that whereas it was not in dispute that the image of Mzee Kenyatta symbolises or depicts Kenya or an aspect of Kenya, the image should not be recognisable or belong to an identifiable person.

“I have seen the images thereon. One of the images which clearly stands out is the statue. The image if clearly recognisable as that of the founding father of the nation. It is also enlarged and is not proportional to the tower,” the judge said.

The judge said the use of the portrait therefore infringes on the permissive part and as such, contravenes Article 231(4) of the Constitution. The judge said had his two colleagues agreed with him, he would have suspended the declaration for one year, for the CBK to issue legally-compliant currency notes.

But Justices Kanyi Kimondo and Asenath Ongeri dismissed the case by activist Okiya Omtatah and East African Legislative Assembly (EALA) MP Simon Mbugua saying the use of Mze Kenyatta’s portrait does not offend the Constitution.

COMPLEX

On the images appearing in the Sh200 notes, all the judges said the persons on it could not be identified and there was nothing wrong with their use.

The court visited the complex on a request by Mr Omtatah and agreed that the tower and the statute were about 80 metres apart, but part of the KICC complex.

The Judges said KICC was a key national monument which was gazetted in July 2013 and the image was considered and approved by the Cabinet.

They also dismissed claims that there was inadequate public participation before the new notes were unveiled. They said that CBK published a notice in newspapers inviting Kenyans to present their views and also held stakeholder engagement in the design of the banknotes.

PUBLIC INVOLVED

It was their reasoning that the general public was reasonably involved the process and the claims had no legal basis as CBK took reasonable steps to involve the public.

 “We find and hold that CBK discharged its duty as expected,” the judges said.

Mr Omtatah, however, said he would appeal against the decision before the Monday deadline lapses.