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‘When an ox fell into a pit on Sabbath Day’

By Mwaniki Munuhe

Nairobi, KENYA: In ordinary circumstances on a Sunday morning, High Court David Majanja would either be in Church or enjoying pretty good time with his family.

But last Sunday was not ordinary for Justice Majanja because although he had been busy the entire week, he sacrificed some time to fast track some fairly urgent electoral related matters.

He locked himself up in the posh Chambers allocated to High Court Judges, squeezing facts from various testimonies for purposes of delivering a ruling when somebody dropped a call. It was his boss, Chief Justice Willy Mutunga, requesting him to listen to a fairly urgent matter involving Royal Media Services (RMS) and the Communications Commission of Kenya (CCK).

After all, “if one of you has an ox that falls into a pit,” goes a biblical quote in Luke 14-15, “will you not rush to remove it because it is Sabbath Day?”

However, details of who could have spoken to Justice Mutunga notifying him of the intent to file the case before he requested Justice Majanja to hear the matter, are still scanty.

However, besides the new development being a request from the boss, in Justice Majanja’s opinion, there was no legal hindrance as to the consideration of a fairly urgent matter of immense public interest on a Sunday.

Extra-ordinary actions

In his ruling, Justice Majanja narrates how the matter found its way to his desk on that sunny Sunday morning.

“The Chambers Summons dated February 2 has been brought to me today, February 3. It is a Sunday when the court does not ordinarily sit, but I was requested by the Chief Justice to hear the matter having been in chambers today, finalising judgements in the recently concluded matters arising from the Independent Electoral and Boundaries Commission nomination cases,” reads part of his ruling.

That was the less than a day experience that saw Justice Majanja enter the history books as the first judge in Kenya to deliver a ruling on a Sunday.

Many are the times however, extra-ordinary actions however legal or illegal, never gets home easy, the move by High Court to issue orders restraining CCK from further interference with RMS frequencies on a Sunday, has already attracted criticisms from Law Society of Kenya (LSK) through a letter addressed to the Chief Justice.

“For good order and for it not to appear justice is applied selectively, it would be appropriate to either undertake amendment to the Judicature Act or to issue practice notes which would guide lawyers and public,” said LSK Chairman Eric Mutua.

But even Justice Majanja held the opinion that, “Perhaps it is time for the Chief Justice to issue Practice Direction for the hearing of urgent matters on weekends and public holidays where necessary.”

Heavy premium

According to Mutua, unless there is a clarification, there is bound to be heavy premium placed on the perception that only the high and mighty have access to the courts on Sundays to obtain injunction orders.

“Not any other lawyer would have known that is possible. Not any ordinary citizen can call Justice Majanja on a Sunday morning and tell him my chicken has been taken away by the neighbour,” he said

By close of business yesterday, Mr Mutua told The Standard on Sunday that his office was yet to receive any form of response from the Chief Justice.

In his ruling, Justice Majanja pointed out the absence of any legally binding statute preventing a judge from hearing a matter on a Sunday.

“Although the courts do not ordinarily conduct business on Sundays and weekends, there is no rule of law or procedure that prohibits them from doing so and in an appropriate case when moved, the court will seek to do justice,” reads part of the ruling.

Royal Media Services, which has invested of Sh1.4 billion, had gone to court to bar CCK from further shutting down of their transmitters.

By the time of going to court, at least six Royal Media Services Transmitters in Narok, Nakuru, Mukuyuni (in Ukambani) and Mambrui (Malindi) had been shut down.

The stations were part of the of the 17 unauthorised transmitter stations CCK had issued a 30-day closure notice.

This happened even as Director of Public Prosecutions Keriako Tobiko wrote to CCK directing no charges should be pressed against RMS and demanded all information on the controversy for further guidance.