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Former AG Githu Muigai too had battleS with LSK

Former AG Prof Githu Muigai when he represented IEBC at the Supreme Court during the 2022 presidential petition. [Samson Wire, Standard]

Former Attorney General Kihara Kariuki and Solicitor General Ken Ogeto put up a spirited fight in defence of the government whenever it was sued.

They won some cases and lost others.

However, the offices they occupied were at times in the eye of the storm. Their story as the captains of the ship manoeuvring the seas of law is however not isolated.

Kihara's predecessor Prof Githu Muigai, and then Solicitor Njee Muturi were just an order away from prison after a litigant dragged them to court over the Ministry of Defense’s failure to pay ex-military officers Sh82 million awarded by the Labour Court.

Justice Hannah Okwengu, Fatuma Sichale and Sankale Ole Kantai two weeks ago exonerated Prof Muigai and Njee but found the ministry was acting in defiance as the Principal Secretary could not explain why the officers were not paid.

The three judges lifted the warrant of arrest issued against the two and former Defense Cabinet Secretary Raychelle Omamo after finding that the orders were not directed at them.

The court found that Prof Muigai was only included in the case as the government's chief legal advisor, and was representing the department but not in his personal capacity.

“We appreciate the frustration of the court due to the flagrant disobedience of court orders by those in government who should lead the way in demonstrating respect to the court.

However, a court of law must be guided by the law and the rule of law must prevail in all its actions. The court cannot afford to flex its muscle by sensationalising issues

“The first to third appellants had no role to play in the satisfaction of the decree against the government or government department.

They could not, therefore, be held responsible for the failure to obey the court order that required satisfaction of the decree made in favour of the respondents,” Justices Okwengu, Sichale and Kantai ruled.

On March 13, 2016, Justice Monica Mbaru awarded nine former Kenya Airforce officers Sh82 million.

Representing the government

A year later, the officers went back to court seeking to have the AG, the Solicitor General, Omamo and Principal Secretary Kirimi Kaberia jailed for failing to comply with court orders.

The court ordered that they should appear on March 16, 2017. It then issued a warrant of arrest against them.

Aggrieved, they appealed the orders. Prof Muigai and Njee told the court that they were legal advisors representing the government and therefore could not be held liable for the ministry’s failure to pay the government.

In 2015, a three-judge bench found that the Law Society of Kenya (LSK) has no legal authority to summon and censure the AG over the conduct of his official duties.

The case was filed by Prof Muigai when LSK summoned him with an intention of giving him a certificate of dishonour.

Consequently, LSK was barred from summoning or questioning Prof Muigai over his official conduct and in particular his then advice to the government on matters touching on the multi-billion shillings Anglo Leasing scandal.

Three judges also ruled that LSK Council had no mandate in law to award a certificate of dishonour to the AG as they had threatened to do.

Weldon Korir, Mumbi Ngugi and George Odunga all now Court of Appeal judges, quashed the proceedings against him AG with the certificate, saying such a move had no place in law.

Prof Muigai filed a petition at the High Court in 2014 challenging the summons issued to him by LSK on June 16, 2013.

The purpose of the meeting was to question him over a case in which he represented the government in the United Kingdom.

Prof Muigai filed the petition in his personal capacity as an advocate and member of the LSK and as the AG.

The LSK had decided to censor and confer on him a certificate of dishonour after accusing him of misadvising the government in regard to the Anglo Leasing case in the UK.

LSK summoned the AG as one of its members. But in his petition, Prof Muigai through his lawyers Waweru Gatonye and Assa Nyakundi argued that under the Attorney General Act, no proceedings could be instituted against him over his conduct in representing the government in any court proceedings.

He said his office was independent in law, corporate and immunised from any liability arising from his official conduct.

LSK through their lawyer Ahmednassir Abdulahi opposed the case, saying the court had no legal authority to entertain it as it was filed by the AG and not by an individual whose rights were being violated.

LSK said by summoning the AG, it had not broken any law but had accorded him the respect entitled to him as a member of the society.