SPEECH BY HON. MR. JUSTICE DAVID K. MARAGA, THE
CHIEF JUSTICE OF THE REPUBLIC OF KENYA, AT THE
TRIBUTE PROCEEDINGS IN CELEBRATING THE 105 YEARS
OF
THE
LEGAL
DISTINGUISHED
FRATERNITY
JUDICIAL
IN
CAREERS
KENYA
OF
AND
THE
HONOURABLE
JUSTICE (RTD) JOHN MWERA AND HONOURABLE JUSTICE
ANYARA EMUKULE ON THE 5TH OF DECEMBER, 2016
All Judges Present,
All Magistrates and Judicial Officers,
The President of the Law Society of Kenya,
The Chairman -Mombasa Law Society,
Representatives of the DPP’s Office.
Representatives of the Attorney General’s Office,
Learned Members of the Legal Profession,
Members of Academia,
Distinguished Guests,
Ladies and Gentlemen,
Good morning to everyone.
We gather here today to celebrate the 105 years of the legal
fraternity in Kenya. I am truly heartened to have been invited to
1
preside over one of the oldest Commonwealth legal traditions. It
is a true testament to the commitment of the traditions we hold
dear to our legal profession. I am also happy to be back in
Mombasa where I served as a High Court Judge for four and half
years during which most of you appeared before me.
We also decided to use this auspicious occasion to pay tribute to
Honorable Justice (Rtd) John Mwera and the Honourable Justice
Anyara Emukule for their distinguished service to the Judiciary.
Both of them have been my dear brothers. I have had the honour
and privilege to serve with both of them in the High Court and
with Justice Mwera in the Court of Appeal.
Justice Mwera and Justice Emukule, although you have retired
from the judicial office, your judicial philosophies, wise counsel
and the robust jurisprudence you have created will remain
indelible marks our minds records. Due to the depth of your
experience and judicial institutional memory both of you possess,
please allow me to call upon you to offer your services to the
Judiciary in other various capacities when need arises.
Ladies and Gentlemen.
As we celebrate the 105 years of the Legal Fraternity in Kenya, let
me now also take a few moments to share with you a brief
historical evolution of our Judiciary before and after our
independence.
2
In Kenya like other Nations on the Continent of Africa, before the
European
Imperialists
colonized
the
Africa,
the
African
Traditional Communities (ATC) used family, clans, shrines,
churches, as well as mosques as the fora of justice. Impunity was
loathed. The wrong doers were punished with heavy fines some of
which were paid by their entire clans. In most cases, the
Traditional Justice System also applied other alternative dispute
resolution mechanisms that included reconciliation, mediation
and arbitration.
The first court in Kenya, and the entire East Africa, was
established in 1890 near the old harbor, here in Mombasa by
the Imperial British East Africa Company. The Court was
presided over by an English barrister, A.C.W. Jenner. In about
1898 the court was moved to the old police headquarters
opposite the entrance to Fort Jesus. This new court was styled
‘Her Majesty’s Court for East Africa’ with full jurisdiction in
both criminal and civil matters in the whole territory. Thereafter
a magnificent new courthouse was built at Fort Jesus, on
Nkrumah Road. On 31st December 1902 and inaugurated by the
colonial Commissioner, Sir Charles Eliot. The High Court of the
East Africa Protectorate based in Zanzibar was then moved to
Mombasa. In 1911 the High Court was transferred from
Mombasa to Nairobi leaving in Mombasa a subordinate with
jurisdiction over minor cases only.
3
At independence, a total of Seventy Seven (77) judges, all
whites, most of whom came from Britain and Ireland, served in
the two territories of Tanganyika and Kenya. In 1964 Cecil H. E.
Miller, who later served as the Chief Justice, was appointed the
first African Judge of the High Court of Kenya. Prior to his
appointment, the colonial government held the view that there
was no qualified African or black to serve in the judiciary.
Ladies and Gentlemen.
Prior to the 2010 Constitution, there were only Fourteen (14)
High Court stations in the country. The advent of the new
Constitution and statute laws enacted thereafter required that
judicial services be made accessible to all the Forty Seven (47)
Counties. This has not been possible due to the limited number
of Judges we have. We have, however, made great strides in this
regard. Since 2011, a total of Twenty One (21) new High Court
Stations have been established in Fourteen (14) Counties. This
brings the total number of High Court stations in the country to
the current establishment of Thirty Five (35). This is more than
One Hundred Percent (100%) increase in a span of Four (4)
years.
The Court of Appeal has been decentralized from Nairobi to
Kisumu, Nyeri and Malindi but the Supreme Court is centralized
in Nairobi. The Magistrates Courts which were One Hundred and
Eleven (111) before the year 2011 have since increased to One
Hundred and Twenty (120).
4
There are currently Seven (7) Supreme Court Judges; Twenty
Five (25) Court of Appeal Judges; Ninety Six (78) High Court
Judges; Fifteen (15) Environment & Land Court Judges; Twelve
(12) Employment & Labour Relations Court Judges; and a total
of Four Hundred and Fifty Two (452) Magistrates, as well as
Fifty Five (55) Kadhis. This is a total of Six Hundred and Forty
Four (644) Judges and Magistrates serving a population of over
40 Million people.
Ladies and Gentlemen.
I have said enough about the history and evolution of our judicial
system. Let me now turn to the establishment and evolution of
the legal fraternity which is the focus of these celebrations.
The origins of the legal profession in Kenya are traced to the year
1901 when Barristers and Solicitors and pleaders from the Indian
High Court were allowed to practice in Kenya.
Disciplinary
control over the advocates was exercised at that time by the High
Court. There was not organized body of the advocates at the time
and it fell on the high court to control the conduct. At this time
lawyers did not have monopoly of practice.
They were not the
only people who could practice law, the senior judge of the High
Court could licence other persons of good character to practice, he
could licence lay persons who had shown themselves to be of good
character to practice.
5
In 1911 non-lawyers were forbidden from practising in Kenya. In
the same year lawyers from the commonwealth were permitted to
practice in Kenya. The first professional body for lawyers in East
and Central Africa was started in Mombasa in the year 1911. The
association was called the Mombasa Law Society as a voluntary
association of legal practitioners. When the colonial government
moved the both the capital city and the High Court from
Mombasa to Nairobi, lawyers in Nairobi formed the Nairobi Law
Society which was also a voluntary organization.
The two societies merged sometime in the 1920s to form the Law
Society of Kenya.
Therefore the LSK was born in earnest in
1920s. The membership of Nairobi Law Society was disbanded
with the formation of the Law Society of Kenya unlike the
Mombasa Law Society which remained in existence as a
voluntary body and remains so to this day. The existing Law
Society of Kenya was formed in 1948 and was established by
Section 3 of the Law Society Act of Kenya Ordinance of 1949.
In this tribute proceedings, we must also remember the first
African lawyer, Argwings Kodhek who contributed in the
independence struggle by representing our freedom fighters
during the colonial period.
Ladies and Gentlemen.
As advocates you are, of course, keenly concerned with the
working of the courts, of which you are officers. On matters of
any complexity, the courts without the assistance of competent
6
counsel, do not work as effectively as they can with such counsel.
The organizers of both the Open Court Tribute and the
celebration of 105 years of the legal fraternity in Kenya must
therefore be congratulated for having brought together, the
Judges here present, representatives from the Director of Public
Prosecution, the Attorney General’s Office, as well as the Law
Society of Kenya to celebrate this important occasion.
The
collective
administration
presence
of
justice
of
major
chain
in
stakeholders
this
gathering
in
is
the
an
acknowledgement of the significance of the Bar to the judicial
process. This is even more poignant in the existence and work of
the National Council on Administration of Justice (NCAJ) which
brings together the AG, the DPP, the Inspector General of Police,
the IEBC, the LSK, as well as the Civil Society.
As a general proposition, an outward looking Bar and an outward
looking judiciary will develop a greater awareness of the rich
sources of comparative law from which they can draw to enhance
the quality of their advocacy and the development of a robust and
indigenous jurisprudence in Kenya particularly in areas of
practice which have a transnational character. For example,
Kenya came into the international limelight when a five Judge
Bench of the Court of Appeal in case of Mohamed Hersi, in which
I was privileged to write the lead Judgment, applied the principles
of the application of “universal jurisdiction” and held that
Kenyan Courts have an obligation under international law to try
7
piracy crimes committed in the high seas including those
committed outside Kenyan territorial waters.
This was at a time when many nations including the developed
countries had shied away from testing the application of this
jurisprudence leave alone prosecution of piracy suspects. The
case has since been cited in many countries as an authority in
over 22 cases (including cases in the United States Federal
Courts) on prosecution of crimes of piracy committed in the
international waters. It has also been cited in over 23 journals, 5
books.
To the advocates and members of the legal profession.
Next year is a very important year due to the general elections.
The election of political leaders by the people represents the very
basis of democratic governance. In Kenya, elections attract
enormous public attention and protracted legal battles. This is
not surprising as these political contests constitute the heart of
the democratic order. The outcome of these elections are always
challenged
in
the
our
courts
through
election
petitions
challenging the validity of the election results as pronounced by
the Independent Electoral and Boundary Commission (IEBC).
Challenging an election, its conduct or its results, should
however not be perceived as a reflection of weakness but proof of
the strength, vitality and openness of the political system. The
8
right to vote would be merely abstract if the right to sue to
enforce it was not guaranteed in law.
In the 4th March 2013 general elections, a total of One Hundred
and Eighty Eight (188) petitions were filed in the various courts
in Kenya challenging the validity of the election results for the
elections of various members. This number may be doubled in
2017 due to increased public awareness and interests especially
for various positions. The Judiciary Committee on Elections
chaired by brother to my right, Justice Mbogholi Msagha, is
continuously engaging with different stakeholders in preparation
for the conduct of the elections petitions next year.
I therefore call upon all you to be acquainted with the electoral
laws noting the strict timelines and strict construction of
electoral laws. It is your duty as advocates to understand the law
and assist the courts in the development of sound Jurisprudence
in this area. During my tenure as the Chairperson of the
Judiciary Election Committee, I stated before in many forums
that it is important for lawyers to take few briefs as electoral laws
timelines
are
so
strict
with
no
room
for
unnecessary
adjournments.
To the advocates and members of the legal profession.
Today, more than ever, the acceptance of judicial independence
must be put into practice through the active commitment of
those most directly concerned, the judges, as well as through the
9
solidarity
of
lawyers
and
the
public's
awareness
of
the
importance of an independent judiciary.
When Judiciary is under attack, lawyers should be in the forefront
of
its defense. A legal profession
which
is controlled
or
manipulated or intimidated by other forces cannot effectively carry
out its duty of sustaining the independence of the administration of
justice.
Ladies and Gentlemen.
I want to restate again that corruption must be a thing of the
past in the legal fraternity. The dignity of the Bench and the Bar
is maintained not necessarily by a sight of wigs of the occupants
of the Bench or the robes and suits worn by those in the Bar but
by knowledge that they do their utmost to efficiently administer
justice to its citizens.
The fight against corruption is in reality a struggle for the
restoration of law and order. Corruption and impunity become
widespread when disrespect for law is allowed to thrive in society.
Disobedience for the law also thrives when people get away with
all sorts of shady deals and if the court system is somehow
influenced.
In a gathering, such as this, I do not need to elaborate on the way
that corruption and impunity have damaged our economy. But I
would like to say more on what, I believe, should be your role as
legal practitioners in helping the country get back to the path of
10
rectitude. First, we need to make our courts functional, effective
and trusted by the public. This means that we must have lawyers
who take ethics of the profession very seriously; lawyers who will
not frustrate the course of justice, as they defend their clients
with all legitimate means and resources. Kenya needs ethical
lawyers who always keep the end of justice in mind and will never
sacrifice the integrity of the legal system to cover the misdeeds of
their clients, no matter how lucrative the brief may be.
I am and indeed most Kenyans are concerned that whenever the
fight against corruption is mentioned in this country, our leaders
are very quick to point an accusing finger at the Judiciary as the
weakest link. The war on corruption is not a Judicial function, it
is a war that requires multi-faceted effort of a credible and proper
investigation by the police and the EACC; proper prosecution and
submission of evidence by the DPP for the courts to apply the law
and issue consequential punishments as provided for by the law
when necessary.
We cannot continue blaming each other at the expense of the tax
payers and our citizens who we swore the oath of office to serve.
Ladies and Gentlemen.
On my part, I am already taking active steps in the reorganization
of the Anti-Corruption and Economic Crimes Division of the High
Court and the Anti-Corruption courts presided over by the
Magistrates. Soon I will be gazetting strict practice directions for
both the High Court and the Magistrates Courts to ensure that
11
due to the public interest nature of this cases, that once a person
is charged with economic crimes, the cases are set for
conferencing within two days of the plea and hearing commenced
on a daily basis with no room for any adjournment unless in very
compelling and exceptional circumstances.
To the lawyers present here, Kenyans are worried that in almost
all corruption and economic crime cases, lawyers are at the
centre stage of these corrupt dealings if not suspects themselves.
It is sad that fame can be achieved by a lawyer because of his or
her ability to manipulate and frustrate the legal system. Let me
pose one question to all of you: Why would ill gotten and
corrupt proceeds end up into your pockets as “legal fees”?
My fellow citizens.
Last but not least, I remember that the Mombasa Law Society in
their invitation to me expressed their concern that certain
traditions
in
our
legal
profession
such
as
celebrating
distinguished Judges upon retirement or holding of Tribute
Proceedings in honour of those who have passed away seemed to
have been forgotten.
Mark Twain once said “The less there is to justify a traditional or
custom, the harder it is to get rid of it”. I would like to assure you
that judiciary fraternity under my leadership will give utmost
support our legal traditions which are the glue which binds our
legal profession. For those who may not be aware, in the year
12
2013, the former Chief Justice Dr. Willy Mutunga held a Tribute
ceremony in honour of five (5) departed advocates from who were
practicing in Mombasa. Again on 1st July, 2015 the then Chief
Justice held a Tribute Proceedings at the Supreme Court in
honour of the late Justice Sheikh Amin, and recently just two
weeks ago, I presided over a Tribute in honour of the late Chief
Justice Abdul Majid Cockar.
The legal profession should continue to observe its traditions, but
only in a manner that conforms with the aspirations of Kenyans
as expressed in our Constitution while taking cognizance of the
changing dynamics of the society.
Ladies and Gentlemen.
For the legal fraternity to survive and practice their proffered
vocations, we all have no choice but to uphold the rule of law and
work together for the benefits of our society.
The Court is now adjourned.
THANK YOU ALL AND MAY GOD BLESS YOU.
13