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Maraga wants Ahmednassir cross-examined in defamation suit

NATIONAL
By Allan Mungai | November 27th 2021

Lawyer Ahmednassir Abdullahi and former Chief Justice David Maraga. [File, Standard]

Former Chief Justice David Maraga now wants lawyer Ahmednassir Abdullahi compelled to appear in person before open court for cross-examination in a defamation case pitting the two.

If the lawyer fails to heed the summons, Maraga wants the court to strike out 18 claims Ahmednassir made when responding to the defamation suit.

The retired Chief Justice said Ahemdnassir is using the suit to defame him further and wants the lawyer personally in court to vouch for contents of his affidavit.

Maraga sued Ahmednassir following a series of tweets he made on January 12 this year, alleging corruption at the Supreme Court.

The tweets have been the basis of a defamation suit against Ahmednassir to which the lawyer responded with an affidavit that Maraga told the court contains baseless statements.

The former CJ insists that Ahmednassir must be confined to facts he is able to prove and should be prohibited from making hearsay or argumentative statements.

“The defendant has in his affidavit sworn on November 1st, 2021 failed to set out the particular facts premised on information and those premised on belief, nor has he adduced any evidence in support of the said falsehoods couched and presented as purported facts,” Maraga argues in an application filed by his lawyers on November 18, 2021.

However, in the response that is now the subject of the summons to appear in person for cross-examination, Ahmednassir avers that he lobbied for Maraga to become a judge in 2004. The city lawyer maintained Maraga “has a history of soliciting favours including lobbying for the position of a judge.”

He says when he was first elected chairman of LSK in 2003, he and other council members visited Nakuru when the radical surgery of the Judiciary was at its peak. “Maraga was one of the senior lawyers practising in Nakuru and welcomed us. Following his strong solicitation and constant lobbying, we included him in a list of 35 lawyers and was appointed judge in 2004,” Ahmednassir’s affidavit says.

But Maraga told the court the lawyer's statements were hearsay. He says Ahmednassir "failed to set out the particular facts premised on information and those premised on belief".

The ex-CJ said he needed the lawyer cross-examined to clarify some of the statements he made and which "are not borne out by facts and are not supported by any evidence"

One of the paragraphs of Ahmednassir's affidavit that Maraga wants to be removed claims the former CJ instituted the defamation proceedings against him to silence him for blowing the lid on corruption at the Judiciary.

Others say the tweet is true and made a fair comment, that Maraga has a history of turning a blind eye to grand corruption, and a history of being haunted by allegations of corruption in his career as a Judge of the High Court, the Court of Appeal, and the Chief Justice & President of the Supreme Court.

Maraga also says some sections insist on the alleged truth of his impugned tweet yet do not state how Ahmednassir knew of the alleged scandal.

He contends that Ahmednassir cannot use the ongoing judicial proceedings against him to make wild, spurious and unsupported statements that further defame him.

“The words were presented as the absolute truth designed and intended to disparage, belittle, and injure the plaintiff’s character and reputation as a retired Chief Justice of the Republic of Kenya, President of the Supreme Court of Kenya,” Maraga’s lawyers argued when they filed the suit.

However, in the response that is now the subject of the summons to appear in court, Ahmednassir replies that he lobbied for Maraga to become a judge in 2004.

Maraga, who assumed office in 2016 as the 14th Chief Justice of Kenya retired in January this year.

He now says unless the claims in Ahmednassir’s affidavit are expunged, it will lead to further defamation, infringement and violation of his rights, the rights of his children and other third parties who are not part of the proceedings.

Ahmednassir has 21 days to respond to the fresh application.

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