Kenya’s Supreme Court: Past rulings that signify what to expect from Justices Martha Koome and William Ouko

By Newton Arori

The nomination and subsequent appointment of Justice Martha Koome as Kenya’s Chief Justice has been lauded as the judge makes history as the country’s first woman head of the Judiciary. Almost propitiously, her appointment ends the controversy around the gender composition of Kenya’s apex court. 

In 2011, shortly after the Supreme Court was first constituted, The Federation of women lawyers Kenya (FIDA) and other petitioners moved to court with a petition touching on the court’s composition. FIDA claimed that the court’s composition violated the constitutional requirement that no gender should exceed two-thirds (in this case 4.66) in any elective or appointive position. The High Court disagreed, holding that the two-thirds principle was to be realised progressively. 

When Chief Justice Willy Mutunga, Deputy Chief Justice Kalpana Rawal, and Supreme Court Judge Philip Tunoi retired in 2017, they were replaced by Justices David Maraga, Philomena Mwilu, and Isaac Lenaola, respectively. The gender composition of the Court thus remained unchanged. At the time, the Judicial Service Commission (JSC) missed an opportunity to rectify the gender imbalance (real or perceived), which triggered another case at the High Court, raising the same issues as the 2011 petition. In a  fit of legal inventiveness, the court reasoned that since two-thirds of seven is 4.66, and human beings do not exist in fractions, the figure should be rounded off to 5. The membership of five men and two women was therefore Constitutional, the court held. 

With Justices Martha Koome and William Ouko joining the Supreme Court as Chief Justice and Supreme Court judge, there are now four men and three women on the apex Court’s bench, which effectively settles the debate on the constitutionality of its composition.   

But more consequential is the two judges’ judicial philosophy. The Supreme Court is Kenya’s highest court; its decisions bind all other courts. The thinking of Justices Koome and Ouko will therefore shape Kenya’s jurisprudence. What can we expect? This inquiry is the basis of this article. 

Finding the answer is fraught with one major complication. Both judges have spent nearly a decade each at the Court of Appeal, where judgments are authored by three or five-judge benches, which makes it difficult to distil an individual judge’s contribution. For this reason, this piece will focus on the decisions of Justices Koome and Ouko as High Court judges, and their dissenting opinions as judges of the Court of Appeal. 

Justice Koome: The Contentious, the Good and the Bad 

The Contentious

Does jailing a debtor who fails to pay infringe on his or her rights? That was the question that confronted Lady Justice Martha Koome as a High Court judge in Nairobi in the 2010 case of ‘Ziporrah Wambui Mathara’. 

The Petitioner, Zipporah Wambui, had been jailed at the G.K Murang’a prison for failing to pay a debt of Sh339,885.00. This practice, known as civil jail, is enabled by Section 40 of Kenya’s Civil Procedure Act. Through her Counsel, Ziporrah challenged her committal to jail based on Section 11 of the United Nations International Covenant on Civil and Political Rights (UNICCPR), which provides, “No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation.”

Zipporah’s case was that since Kenya ratified the UNICCPR, that statute forms part of the Law of Kenya, under Article 2(6) of the Constitution, which states, “Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.” Justice Koome concurred with the petitioner, holding:

“An order of imprisonment in civil jail is meant to punish, humiliate and subject the debtor to shame and indignity due to failure to pay a civil debt… I will allow the application.”

Justice Koome

This was at a time when the 2010 Constitution had just been promulgated, and the instant case offered Justice Koome a novel opportunity to interpret Article 2(6). Granted that international treaties now formed part of Kenya’s law, what was their place? In Kenya, there is a hierarchy of laws with the Constitution at the top, followed by Acts of Parliament, subsidiary legislation, the rules of common law and customary law in that order. Where in this hierarchy did international treaties fall? 

In holding that the civil jail contravened the UNICCPR and therefore setting the Petitioner free, by overriding provisions of Kenya’s Civil Procedure Act based on an International treaty, Justice Koome seemed to imply that treaties are above local legislation in our hierarchy of laws — that is, either they are at par with the Constitution or occupy a place between the Constitution and local Acts of Parliament. How she reached this conclusion was not clear.  

In holding that the civil jail contravened the UNICCPR and therefore setting the Petitioner free, by overriding provisions of Kenya’s Civil Procedure Act based on an International treaty, Justice Koome seemed to imply that treaties are above local legislation in our hierarchy of laws — that is, either they are at par with the Constitution or occupy a place between the Constitution and local Acts of Parliament. How she reached this conclusion was not clear. 

The ‘Zipporah Wambui’ decision generated considerable controversy. David Majanja, then a practising Advocate, penned an impassioned critique of the ruling in The Nairobi Law Monthly magazine. In the piece, he decried, among other issues, the casual manner in which Justice Koome had treated the case, losing an opportunity, for example, to pronounce herself on the constitutionality of the civil jail practice. However, she did imply that it was unconstitutional. 

A second attack came in the form of a ruling by Justice Njagi of the High Court in the case of ‘Diamond Trust Kenya Limited v Daniel Muema Mulwa’, delivered three months after ‘Zipporah Wambui’ and which dealt with similar facts. Like Justice Koome, Justice Njagi acknowledged the conflict between the Civil Procedure Act and the UNICCPR but reached a different conclusion: 

‘In my view, Article 11 of the ICCPR cannot rank [equally] with the Constitution. The highest rank it can enjoy is that of an Act of Parliament. And even if it ranks in parity with an Act of Parliament, it cannot oust the application of Section 40 of the Civil Procedure Act. Nor, for that matter, can it render Section 40 unconstitutional. For that reason, for as long as Section 40 remains in the Statute Book, it is not unconstitutional for a debtor to be committed to a civil jail upon his failure to pay his debts.’

Justice Njagi

The above view was endorsed two years later in ‘Beatrice Wanjiku & Another v Attorney General & Another, by Justice David Majanja, who had since been appointed a High Court judge.

Many commentators agree that Justice Koome took the provision of Article 2(6) – that ratified treaties would form part of Kenya’s law under the Constitution- to mean that international treaties would form part of, or fall immediately below, the Constitution. If that is so, then Justice Koome adopted a loose interpretation of the Constitution, not limiting herself to what it expressly states. 

The good 

In the 2010 criminal case of ‘Republic v. Enock Wekesa and Another’, the accused persons faced three counts of robbery with violence and a fourth count of defilement. After the trial had begun, the Prosecutor sought to terminate proceedings against the accused (known as entering a nolle prosequi) invoking his powers under Article 157 (6) of the Constitution, which provides, “The Director of Public Prosecutions may… discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public prosecutions or taken over by the Director of Public Prosecutions…”  The trial magistrate disallowed the termination, holding that the prosecutor was obliged to give reasons for terminating the case, which the prosecutor had not given. 

The prosecutor appealed the magistrate’s decision to the High Court at Kitale before Justice Martha Koome. According to the Prosecutor, the magistrate did not have the power to question the prosecutor’s decision and, by doing so, was usurping the powers of the Director of Public Prosecutions (DPP). Justice Koome observed that under the old Constitution, the Prosecutor’s powers to withdraw charges were unfettered but held that under the current constitution, that was not so. She relied on Article 157(11) of the Constitution, which states, “In the exercise of his/her power, the Director of Public prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.” Therefore, the prosecutor could not withdraw charges against an accused without giving reasons for doing so, as this might lead to an abuse of the court process. A prosecutor could only withdraw a matter for valid reasons, which must be explained to the trial court. 

Justice Koome’s ruling effectively ended the nagging problem of prosecutors abusing their nolle prosequi powers. In his paper titled “Conceptualisation and Operationalization of the Right to a Fair Trial in Kenya”, Dr Busalie Jack Mwimali captures this abuse succinctly: 

“The most common of these practices was when prosecuting officers instituted criminal charges against individuals on the pretext of facilitating investigations even where there were no reasonable grounds to do so in the first place. After the investigations, if no evidence were found to support any charge, the cases would simply be withdrawn. If, on the other hand, new evidence which supported a different charge from the one instituted was discovered, the matter would be withdrawn and a new charge instituted.”

Dr Mwimali further observes: 

“Another way in which the withdrawal of cases prejudiced the right to a fair trial was that it gave undue advantage to the prosecution side by allowing the withdrawal and reinstitution of cases where fatal mistakes had been committed. Nolle prosequi allowed prosecutors to withdraw such cases to correct the errors discovered before reinstituting them without falling afoul the law.”

The ‘Enock Wekesa’ decision is, in my view, one of Justice Koome’s best and most progressive decisions in her history on the bench. 

The Bad 

Centre for Rights Education and Awareness & Another v John Harun Mwau & 6 Others 

In January 2012, the country was in a state of confusion owing to seemingly contradictory Constitutional provisions regarding the date of the first elections under the new Constitution. On the one hand, Article 136(2) (c) provides, “An election of the President shall be held–– on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year.” On the other hand, Section 9(1) of the 6^th schedule provides, “The first elections for the President, the National Assembly, the Senate, county assemblies and county governors under this Constitution shall be held at the same time, within sixty days after the dissolution of the National Assembly at the end of its term.”

Relatedly, Section 10 provides that the National Assembly existing before promulgation of the new Constitution would continue in force for its unexpired term. Since the new session of the 10^th parliament began on 15^th January 2008 for five years (which would lapse on 15^th January 2013), there were, on the face of the Constitution, two election dates: the second Tuesday of August 2012, or a date within 60 days after 15^th January 2013. Which one would it be? The case was first heard at the High Court, then found its way to the Court of Appeal, where Justice Martha Koome then sat. 

In seeking to determine the correct election date, she first (correctly) ruled out the August 2012 date, finding that it was not constitutionally feasible.  She then proceeded to hold that the first General Election should be held 60 days before 15^th January 2013 because, 

“This way, the current National Assembly cannot go beyond its life span of five years, and the Members of Parliament will have served their entire term of five years. The date for the next general elections should have been on or about the 15th of January 2013. That way, the term of the current Parliament is not at all extended beyond the five years.”

Justice Koome was essentially seeking to rewrite Section 9 (1) by proposing that the election be held within 60 days before 14^th January 2013, instead of after. The judge assumed that the term of the  National Assembly was to expire on the date of the General Election. Therefore, if the elections were to be held within 60 days after 15^th January 2013, the life of parliament would have been irregularly extended, having exceeded the requisite five years (which were to lapse on that date).

Her reasoning appears to have been inspired by Article 102(1) of the Constitution, which provides, “The term of each House of Parliament expires on the date of the next general election.” But that article did not apply to the first election under the Constitution, which was the subject of the case. Note the wording “each house of parliament” – in obvious reference to the National Assembly and the Senate. Since the Senate did not exist at the time and would come into being after the first general election, Article 102(1) refers to subsequent houses of Parliament after the first general elections. 

More importantly, Article 102(1) falls under Chapter 8, whose provisions had been suspended by the Constitution until after the first election. Therefore, the term of parliament in this instance was to expire on 14^th January 2013, not on the date of the General Election.

Justice Koome’s logic was thus flawed. Thankfully, she ruled alone. The other appellate judges, Erastus Githinji, David Maraga, Hannah Okwengu and Kalpana Rawal, correctly held that the elections would be held within 60 days after 15^th January 2013. Had Justice Koome’s opinion prevailed, the Court of Appeal would have breached an express Constitutional provision. 

A champion for society’s weak 

Justice Koome has a heart for society’s weak. When compelled by law to dismiss an apparently deserving litigant’s suit, she comes out as empathetic. In one case, a sacked employee who’d sued his former employer for unfair dismissal lost. He wanted to appeal but lacked the funds to hire a lawyer. By the time he could afford to, the time allowed for appeal had expired. He came before Justice Koome seeking an extension of time to appeal. She dismissed his application “although I sympathise with the appellant who is unrepresented but determined to appeal. I do this with a lot of sympathy to the applicant, but my hands are tied for reasons stated; I have no basis whatsoever to exercise my discretion in favour of the applicant,” she said in another case. In yet another case, she noted that she had dismissed an application “with a heavy heart.”

Women’s interests are dear to her, too. While recommending that courts invent standards to assess men’s contribution to matrimonial property, she remarked, “Merely lounging in a woman’s house while dominating the remote control for the Television Channels cannot entitle a man to a share of the woman’s property.”

All this is not surprising given Justice Koome’s background as a Human Rights defender and one of the founding members of the Federation of Women Lawyers (FIDA) in Kenya. Indeed, her efforts to improve the legal rights of women and children led the United Nations to honour her as Runner-Up UN Kenya Person of the Year in 2020. She describes herself as a visionary and transformational leader. With her activist roots and willingness to creatively interpret the Constitution, she can be expected to make bold, precedent-turning decisions where the rights of the marginalised are involved.

With her activist roots and willingness to creatively interpret the Constitution, she can be expected to make bold, precedent-turning decisions where the rights of the marginalised are involved.

Justice William Ouko 

There is a reason Justice William Ouko was a favourite in the race to succeed Chief Justice David Maraga is his administrative experience. The Chief Justice is the chief judge and the chief administrator of the judiciary, and in that role, Justice Ouko would have been a perfect fit. 

Justice Ouko served as Registrar of the High Court, the highest administrative position in the Judiciary pre-2010. He co-chaired the task force on Judiciary reforms in 2009, whose recommendations were incorporated into the 2010 Constitution. The expanded representation in the Judicial Service Commission, and the procedure of discipline and removal of judges from office, are some of the legacies of the Ouko Report. He also served as President of the Court of Appeal from 2018 till his appointment as Supreme Court Judge.

In his new role as Supreme Court Judge, how does he fit? Notably, Justice Ouko rarely disagrees with his colleagues on the bench. In fact, in my research, I could not find one dissenting judgement he authored that dealt with questions of Constitutional interpretation at the Court of Appeal.  

At the High Court, Justice Ouko loved to cite the Constitutional edict, “Justice shall be administered without undue regard to procedural technicalities.”

In ‘Republic v Amos Gichuhu Kimeria’, the applicant moved to court alleging infringement on his right to a fair trial but did not do so by way of a petition, as is required by law. “It can be argued that the [rules] have not been complied with in bringing this application as it has not been brought by way of a petition,” Justice Ouko found. He nevertheless proceeded to hear the application and issue orders.

In another case, ‘Republic v Eldama Ravine Land Dispute Tribunal Ex-parte Committee Members Stolmo Primary School’, the applicant moved to court to quash a decision that a tribunal had made without jurisdiction. The opposing party raised numerous technical faults in the affidavits accompanying the application. He further cited authorities to the effect that the applicant’s failure to comply with the technical rules rendered the application defective. But Justice Ouko, while allowing the application, held, “Although rules of procedure are designed to facilitate fair administration of justice and are the handmaiden of justice, the court must be guided by the desire to do justice without undue regard to procedural technicalities and not the zeal to dismiss or strike out cases on technical grounds.”

In ‘Nicona Construction Company Limited v Ken South Plastic Company Ltd & 2 Others’, the plaintiff sought to set aside a dismissal order made against him three years prior. Justice Ouko granted his prayer, finding that “Although the delay was long, for the reasons stated, there is no basis to hold that the delay was unreasonable in the circumstances. It is important that courts avail an opportunity to parties to ventilate their cases without undue regard to technicalities. There is no prejudice to the respondent in allowing this application.”

While Justice Ouko did not get the post where his managerial acumen would have done a world of good, his pragmatic, justice-centred approach is most welcome at Kenya’s apex court.

While Justice Ouko did not get the post where his managerial acumen would have done a world of good, his pragmatic, justice-centred approach is most welcome at Kenya’s apex court.

The writer is an Advocate of the High Court of Kenya; arori2014@gmail.com