Devolution Principal Secretary Nelson Marwa must now respond to a defamation suit filed by Mombasa County Assembly Speaker Harub Ebrahim Kharti, the Court of Appeal has ruled.
On Friday, the court ruled that Mr Marwa could not hide behind the Government Proceedings Act or cite immunity as a Government agent for actions he has been sued over in his individual capacity.
Mr Kharti sued Marwa in January last year, claiming the latter had linked him to drug trafficking and illegal gun possession following his arrest. Kharti's arrest in his house sparked a standoff between Marwa and Mombasa Governor Hassan Joho, when the governor stormed the Coast Regional Police Headquarters demanding his ally's release.
On March 14 last year, High Court judge Njoki Mwangi ruled that Marwa could not be sued for remarks made in his capacity as Coast Regional Co-ordinator because he was insulated by the provisions of the Government Proceedings Act.
The judge ruled in Marwa’s favour following an application by the Attorney General and the Director of Public Prosecutions, who argued that under the National Government Co-ordination Act, Marwa could not be sued for defamation in his personal capacity because he uttered the alleged defamatory words as the Coast Regional Co-ordinator.
The AG and DPP did not deny that Marwa uttered the alleged defamatory words, but instead sought a finding that a State officer could not be sued in person for such words when acting for the Government.
To buttress their case, they argued that when Marwa uttered the words, he was in official uniform and was surrounded by police officers - proof that he was acting and speaking as a Government agent. The two State offices said any liability arising from Marwa’s speech and action could only fall on the State and that any suit should be directed to the AG as the defender of the Government.
But the Court of Appeal yesterday ruled that the Government Proceedings Act only indemnified State officials acting in good faith and when such acts were proved to be Government policy, which could only be determined through a full trial.
Three Court of Appeal judges reversed an order by Ms Mwangi that granted Marwa immunity in the suit filed by the county assembly speaker on January 19, 2017.
Justices Alnashir Vishram, Wanjiru Karanja and Martha Koome ruled that by expunging Marwa’s name as a respondent in the suit, it would be impossible to prosecute the case, or the subject matter of the suit would collapse for lack of specificity.
“In his (Marwa's) absence, we entertain considerable doubt as to whether the appellant (Kharti) would be able to proceed with the claim...,” said the judges after finding that the only way for the assembly speaker to demonstrate the alleged defamation was through suing the alleged violator of his rights.
“If the only way in which the appellant was to be able to vent his claims in a court of law was through the first defendant (Marwa), in our view he should be removed from the seat of justice as the broader interest in the administration of justice enjoins courts to address substantive justice as enshrined in articles 50 and 159 of the Constitution by allowing parties to vent their cases while aiming to address the core issues in dispute as opposed to peripheral issues…,” said the judges.