Lawyers query Nyamu’s part in ruling on courts

By Lucianne Limo

The legal fraternity yesterday termed as unprocedural for Court of Appeal judge Joseph Nyamu to participate in a matter of a lower court.

The Law Society of Kenya (LSK), International Jurists of Kenya (ICJ), Federation of Women Lawyers (Fida) and Kituo cha Sheria said the move is not allowed in law.

"If the judgment was written when Justice Nyamu was still a High Court judge, then why has it taken over one and half years for it to be delivered," posed ICJ Executive Director George Kegoro.

If the judgment was written recently when the judge had already been elevated to the Court of Appeal, Kegoro added, on what capacity did he participate in the process?

The lawyers recalled that when the case was filed in 2004, Justice Nyamu was one of the judges appointed by the Chief Justice to hear the case.

Replace him

"The judge should have left the other two judges to proceed with the case or wait for the CJ to replace him. This has never happened before and never been heard of," said Kituo Cha Sheria CEO Priscilla Nyokabi.

LSK member Eric Mutua reasoned the judge was elevated to the appellate court over a year ago and hence cannot purport to have written the judgment as a High Court judge.

"The Judge was in the rules committee of the court that decided that a decision of the High Court ought to be delivered within 42 days," he said.

The lawyers argued that the timing of the ruling is questionable and mischievous.

"The timing is not a coincidence, the Judiciary is once again joining forces that do not want a new constitution, which will require them to undergo vetting," said Ms Lucy Kambuni of LSK.

These actions, she added, constitute reckless and misguided judicial adventure, which risks throwing the country into significant political uncertainty.

The lawyers, however, said although legally the ruling has no effect on the coming referendum they noted that politicians would use the decision to lie to public that the draft is flawed.

"The ruling is flawed and has no legal basis and undermines the greater public interest," added Kambuni.

They said the Kadhis’ Courts are meant to only resolve disputes between Muslims and not established to convert non-Muslims to Islam.

"For the court to find the inclusion of the court in the Constitution uplifts Islam above other religions is totally misguided and incorrect," added Kambuni in a statement read on behalf of lawyers.

The lawyers urged the Attorney General Amos Wako to immediately seek judicial review of the decision.

They regretted that the decision would prejudice the rights of Muslims, a minority group in Kenya, which the Constitution has sworn to protect.

The Kadhis’ Courts should be seen in the context of the Judiciary and the legal system and not as a religious or Muslim issue alone," added Fida Deputy Director Claris Ogangah.