Pain of increasing non-compliance with court orders

Pain of increasing non-compliance with court orders

Disobedience of court orders is on the rise in Kenya, signalling a trend that puts the rule of the law and the dignity of courts under threat.

Worse, senior public officials are top on the list of people disregarding court orders at will.

Late last year, Chief Justice David Maraga issued a statement and warned that disobeying a court order was not only a violation of the Constitution but also a dereliction of public duty.

“Courts are temples of justice and the places of refuge for those seeking protection. They must never be despoiled either through acts of physical transgressions or blatant disregard of their pronouncements,” Mr Maraga said.

The CJ noted that there have been worrying developments in the administration of justice that threaten the rule of law.

“The recent disregard of court orders is an act that is not only inimical to the rule of law but is also completely at odds with Kenya’s constitutional outlook,” he added.

But despite the warnings, these acts are rampant and now the Law Society of Kenya president-elect Nelson Havi said he will be seeking an appointment with the Attorney General Paul Kihara to discuss the issue.

In the meeting, he said, he would first seek to establish from the AG why government officials are unable to comply with the court orders or “at least have him explain why the orders are disregarded”.

Later, Mr Havi said, the LSK will compile all cases where government officials have failed to comply with court orders and file a composite case, seeking a declaration that the concerned officials are unfit to hold public office.

“We will further escalate it and, where possible, file a petition to Parliament of county assemblies, and ask the concerned officials to be impeached,” he said.

Among the cases where government officials have disregarded court orders is that involving controversial lawyer Miguna Miguna whose return to the country has been frustrated on two occasions.

During the latest attempt in January, Justice John Mativo noted that several orders directing the government to facilitate Dr Miguna’s return have been disobeyed.

But the government through a State counsel maintained that Dr Miguna’s passport expired in March last year and the Canada-based lawyer has not applied to renew it.

Through State counsel Christopher Marwa, the government defended itself, saying Dr Miguna had the option of using his Canadian passport to gain entry into the country or seek the renewal of his passport from any Kenyan embassy.

Dr Miguna’s lawyer John Khaminwa protested that the court orders are not there for cosmetic purposes and if the government was unhappy with them, the least it could do, was to appeal against the order but not to disregard them.

According to the government, Dr Miguna’s passport expired on March 22, 2019 and the lawyer could renew it online through the e-Citizen platform.

In December 2018, Justice Chacha Mwita directed the government to return Dr Miguna’s passport but it later emerged that it had been perforated. The judge also awarded the lawyer Sh7.2 million as compensation for violation of his rights and for destruction caused at his home in Runda when police officers raided it.

Dr Miguna was deported in February 2018, days after his arrest, for the role he played in the mock swearing-in of Orange Democratic Movement (ODM) leader Raila Odinga on January 30, 2018.

He unsuccessfully tried to return to Kenya on March 26, 2018, forcing his lawyers to go to court, while another attempt on January 7, 2020 was also thwarted. He has since sued two airlines which refused to allow him to board on his way back home.

And a former Air Force Commander Peter Kariuki wants the Treasury Cabinet Secretary, the Defence Principal Secretary, the Chief of Staff of the Defence Forces and the Air Force Commander compelled to restore his rank, honour and decorations.

The former military man obtained a court order six years ago but the officials are yet to comply with the directive.

Besides the honours and benefits, Mr Kariuki is seeking compensation of Sh71 million, which the Court of Appeal ordered the government to pay him in 2014, after convincing a bench of three judges that he was subjected to glaring violations, when he was court-martialled in 1983.

Justices Patrick Kiage, Kathurima M’Inoti and Jamila Mohammed had quashed his conviction and ordered the government to pay him Sh15 million for violation of his rights. “Those violations cannot be appropriately remedied by an award of damages alone. A conviction founded on such palpable and glaring violation of the right to a fair trial ought not to be allowed to stand,” the judges stated.

But six years since he obtained the judgment, Mr Kariuki is yet to be paid or his ranks and honours restored.

“That all that the fourth and fifth respondents (CGS and Air Force Commander respectively) are required to do is to organise the necessary parade in accordance with their military practice or norm and restore my rank, honour and decoration as ordered by the court,” he said in a sworn statement.

During the August 1, 1982 attempted coup, Mr Kariuki was the commander of the Kenya Air Force. At the time of the mutiny, Mr Kariuki said he was at his farm in Timau, a few Kilometres from Nanyuki.

But as soon as the mutiny had been quelled, he was arrested and confined for some time at Kamiti Maximum Security Prison. He was later transferred to Naivasha Maximum Security Prison and held in solitary confinement for 147 days.

And on January 10, 1983, he appeared before a court martial and was charged with the offences of failing to prevent a mutiny and failing to suppress it. The court martial was presided over by Major General Lenges, with F. E. Aragon, then a Senior Resident magistrate, as the Judge Advocate.

About a week later, he was convicted of the two offences and sentenced to four years in prison; the sentences were to run concurrently. In addition, he was dismissed from the force and stripped of his rank, benefits, medals and decorations.

He served his full sentence after the Commissioner of Prisons declared that he would not be considered for any remission of his sentence.

Some 23 years later, he filed a petition before the High Court alleging violation of his constitutional rights and freedoms, regarding his arrest and trial before the court martial.

Justice Daniel Musinga agreed with him and ordered that he be paid Sh7 million for violation of his rights.

The judge, however, failed to order the restoration of his honours, forcing him to file an appeal.

The three Appellate court judges said that the court martial came across as a body hell bent on making arbitrary decisions, which it could not justify.

First, his application to summon General Jackson Mulinge, the then Chief of General Staff, as a defence witness, was rejected.

The former Air Force Commander said it was not true that he failed to suppress the mutiny since, he said, upon learning of the alleged intended coup attempt, he passed the information two weeks before to General Mulinge on July 14, 1982.

General Mulinge then decided that the information be passed on to the Military Intelligence as well as the Special Branch for full investigations under his own co-ordination. He considered the General to be a very crucial witness to his defence.

But since he obtained the judgment, Mr Kariuki, through senior counsel Paul Muite, has written countless letters to the military and the ministries without success, forcing him to head back to court.

“In the circumstances, I have no other mode of enforcing the judgment herein other than by way of mandamus,” he said.

Jeremiah Watah Barasa, a National Youth Service (NYS) official is fighting to get paid after he fell into a ditch and injured himself while on duty 10 years ago.

And despite getting court orders directing the director general of the NYS and the Devolution Principal Secretary to pay him Sh3.6 million, Mr Barasa is yet to be paid.

While the amount keep rising, Mr Barasa is a worried man because he cannot get proper treatment, after he was referred to Kenyatta National Hospital.

He was later demoted as a section officer II to a private. Evidence presented in court showed that he was on duty on February 27, 2010 in Garissa, Mbalambala Farm Unit. He said he was chasing away some wild animals when he fell into a ditch and injured his left hip.

His employer dismissed his claims, saying he was transferred to KNH where a total hip replacement was successfully done and the NYS paid his bills.

Mr Barasa made an application for the NYS director general Matilda Sakwa to be summoned to court and explain why the agency was yet to comply with the court order, three years on.

In a different case, High Court judge Francis Gikonyo said all that was required of government officials was to appear before court and explain the reason for the delay or propose an action plan. “In these cases, I see continuous disobedience of lawful court orders by government officials without any justifiable cause or explanation.”

In yet another ruling, Justice George Odunga said: “In my considered view, court orders are not made in vain and are meant to be complied with. If for any reason a party has difficulty in complying with court orders, the honourable thing to do is to come back to court and explain the difficulties.”

Apart from the Executive, Judiciary officials are also disobeying the orders.

Former Kiambu senior principal magistrate Bryan Khaemba was forced to a file a contempt of court case and sought to have Justice Maraga cited for contempt after failing to reinstate him. This was after the former magistrate won a case quashing his suspension.

In a judgment last year, the Employment and Labour Relations Court said the Judicial Service Commission’s decision to suspend Mr Khaemba was unlawful.

The court directed the JSC to immediately reinstate him and also release his withheld pay.

But the Judiciary failed to comply with the directive, forcing him to head back to court.

The JSC later appealed against the decision ordering his reinstatement.

He said the CJ has disobeyed the same orders he is urging government officials to respect.

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