The transfer of Judges effected by Chief Justice Dr. Willy Mutunga on 15th April, 2016 could be his last. Dr. Mutunga has stated though not in writing, that he will leave office in June, 2016 to enable a smooth transition to his successor. The last major transfer of Judges before this was effected by Dr. Mutunga in July, 2015.
There appears to be no written law or guideline on how long a Judge should serve in a Station. However, in what Dr. Mutunga called a Strategic Plan for upto 2018 released in November, 2015, he set out guidelines. Dr. Mutunga stated that no High Court Judge or Magistrate shall stay at a Station for more than three years, except if they are in a hardship area or if the Chief Justice approves of their stay, but for a maximum of five years.
Previous Chief Justices have used transfers to frustrate Judges and Magistrates who do not tow their line. It is the legitimate expectation of the public that there should not be a repeat of such action in this era.
The highlight of the transfer seems to be Justice Mumbi Ngugi who has moved to Kericho. Before then, she was in the Constitutional & Human Rights Division since her appointment in 2012. Her transfer was overdue going by the guidelines.
Commercial & Admiralty
The Division most affected by the transfer is the Commercial & Admiralty at the Milimani Commercial Courts. Justice Charles Mutungi Kariuki has been moved to Kakamega. He moved from Machakos to the Milimani Commercial Courts in September, 2015. He replaced Justice Francis Gikonyo who moved to Meru. Justice Kariuki has been in the Division for five months only. Justice Eric Ogola has moved to Machakos. He had been in the Division since his appointment in 2012. His transfer was overdue.
Justices Grace Nzioka and Francis Tuiyott have moved to the Commercial & Admiralty Division in Milimani Commercial Courts to replace Justices Charles Mutungi Kariuki and Eric Ogola. They will join Justices Fred Ochieng, Farah Amin and Richard Mwongo. The latter hardly sits as he is the Principal Judge, in charge of administration.
There is popular view amongst Advocates that Justices Charles Mutungi Kariuki and Eric Ogola may have been moved for ulterior reasons. It is claimed that Mr. Ahmednasir Abdullahi, aka Grand Mullah is behind their transfer. The two Judges have made several decisions that may not have been taken well by Mr. Ahmednasir. Mr. Ahmednasir is claimed to control Dr. Mutunga and advises him despite having left the Judicial Service Commission in 2014.
Mr. Ahmednasir’s matters are never handled by Justice Fred Ochieng. Mr. Ahmednasir asked the Judge not to hear any of his matters. He claimed that the Judge has a grudge against him, for refusing to appoint the Judge to the Court of Appeal. When such matters come before the Judge, they have been referred to Justices Charles Mutungi Kariuki or Eric Ogola. Mr. Ahmednasir has been uncomfortable with the two. He has attempted to refer his matters to Justices Olga Sewe Akech and Farah Amin, who he feels will be favourable to him. So far, Justice Amin has fallen for Mr. Ahmednasir’s trap and could be facing a petition for removal for misconduct.
The most recent case is that of Blue Bird Aviation. Mr. Ahmednasir seems to have hit a snag before Justice Eric Ogola in his attempt to wind up the company.
He filed a new suit during the pendency of the winding up petition. The new suit was placed before Justice Farah Amin who issued far reaching final orders ex-parte. When faced with an application to discharge the orders and disqualify her, the Judge disqualified herself and purported to vary her orders. Sensing defeat, Mr. Ahmednasir agreed to the setting aside of the orders. The affected party has threatened to petition for the removal of the Judge who it is said is beholded to Mr. Ahmednasir. The Judge owes her appointment to the friendship between her two brothers who are Advocates and with Mr. Ahmednasir.
The Tatu City case has had several rounds amongst Justices Fred Ochieng, Farah Amin, Eric Ogola and Charles Mutungi Kariuki. The file first landed before Justice Farah Amin in February, 2015. It ended up with Justice Ogola who dealt with it until September, 2015 when Mr. Ahmednasir came into the matter in controversial circumstances.
On 12th June, 2015, Justice Eric Ogola dismissed an application filed by Mr. Tom Macharia Advocate to replace an auditor agreed upon to audit the loans of Tatu City Limited and Kofinaf Company Limited. Mr. Tom Macharia entered the matter in place of Mr. James Ochieng Oduol who represented the foreign directors of the feuding companies. He is said to be a proxy of Mr. Ahmednasir. The loss did not auger well for Mr. Ahmednasir.
On 15th September, 2015, Mr. Issa Mansur Muathe another proxy of Mr. Ahmednasir sought the disqualification of Justice Eric Ogola from hearing the matter. He was supported by Mosota, another proxy of Mr. Ahmednasir. The Judge was accused of taking over the matter from Justice Farah Amin in unexplained circumstances and dealing with it to the benefit of Messrs. Nahashon Ngige Nyagah and Vimalkumar Bhimji Depar Shah, the local directors of the feuding companies.
The two were accused of bribing Justice Ogola with Kshs. 50,000,000.00 and a promise for a similar sum upon determination of the matter. The claims were repeated in open Court by Messrs. Ahmednasir, Issa, Macharia and Dennis Mosota. The application was dismissed by Justice Ogola on 15th October, 2015. Mr. Ahmednasir who had then just entered the matter was not amused.
Mr. Ahmednasir had earlier on 24th September, 2015 purported to take over the matter on behalf of the two feuding companies from from Nelson Havi who filed the matter. After the Ruling of 15th October, 2015, Messrs. Ahmednasir, Issa, Macharia and Mosota who now appeared to act for the two companies and the foreign directors at the same time, sought stay of proceedings. They wanted to appeal against the decision of 15th October, 2015. Fourteen days stay was given.
No appeal or application for stay was made before the High Court or Court of Appeal. Instead, on 22nd October, 2015, Mr. Ahmednasir purported to withdraw the matter through Hon. Tanui. An application was filed by Mr. Nelson Havi to set aside the order of withdrawal. Messrs. Ahmednasir, Issa, Macharia and Mosota played delay tactics to avoid the application being heard by Justice Eric Ogola. The Judge sensed their intention and passed on the matter to Justice Fred Ochieng. He seemed fed up with the personal attacks against him. Justice Ochieng allocated the matter to Justice Charles Mutungi Kariuki.
Justice Charles Mutungi Kariuki heard the application to set aside the withdrawal of the matter. He set aside the order of withdrawal with the following rebuke on Mr. Ahmednasir:-
“The firm of Ms. Ahmednasir Abdikadir & Co. Advocates are officers of the Court as provided under Section 1A (3) of the Civil Procedure Act, and therefore, have the duty to assist the Court in achieving the overriding objective as enumerated under Section 1B thereof. They should have ably stated to the Deputy Registrar that there was an order for stay of proceedings pending appeal previously issued by this Court, or done the more honourable action, of not filing the Notice of Withdrawal until the stay orders were either varied lifted or lapsed.”
Again, Messrs. Ahmednasir, Issa, Macharia and Mosota applied for and were granted stay of proceedings pending appeal. No appeal was filed. The group has thereafter, employed delay tactics to ensure that the application seeking to strike out the Notice of Change of Advocates filed by Mr. Ahmednasir and restrain him from acting in the matter is not heard. The application was to be heard on 29th April, 2016 but will not be heard by Justices Charles Mutungi Kariuki who has since been transferred to Kakamega.
There are other three matters of Kofinaf Company Limited that were pending before Justice Charles Mutungi Kariuki. The cases concern multibillion shilling land claims. Mr. Ahmednasir appears for the Plaintiffs. Mr. Havi appears for the principal Defendants. Mr. Ahmednasir has incorporated Mr. Tom Macharia to act in parallel with Mr. Havi. The determination of the issue of legal representation for Purple Saturn Properties Limited, Gunga Properties Limited and Jojoja Properties Limited in whose names the three properties are registered has been bodged down by delay tactics employed by Messrs. Ahmednasir and Macharia. The maters will not be heard by Justice Charles Mutungi Kariuki.
The matter that offended Mr. Ahmednasir most is the decision made by Justice Charles Mutungi Kariuki in a dispute pitying Cape Holdings Limited and Synergy Industrial Credit Limited. In a Ruling made on 11th March, 2016, the Judge set aside an award of Kshs. 1,666,118,183.00 made in arbitration, in favour of Synergy Industrial Limited. Synergy Industrial Limited is Mr. Ahmednasir’s client. The finality of the decision is said to have motivated Mr. Ahmednasir who handles high stake matters in the Commercial & Admiralty Division, to seek the removal of the Judge from the Division.
The transfers take effect on 2nd June, 2016. The directions contradicts Sections 13 (2) of the High Court (Organization and Administration) Act, No. 27 of 2015 which provides that:-
“For the purpose of effective hand-over, a Judge shall report at the new duty Station within three months from the date on which he or she was notified of the transfer.”
This section is intended to enable a Judge conclude matters that were pending before him or her at the time of transfer.
The transfer of the rest of the Judges from Milimani Commercial Courts seems justified on the three years maximum stay rule. The one in respect of Justice Charles Mutungi Kariuki is suspect. The Judge has only been in the station for five months.
The matter has been worsened by the fact that the Judge has not been allowed to conclude matters already commenced by him. A foreign trip for next week has been organized for him. Upon his return, he will report to Kakamega. There is something sinister about the manner in which this particular transfer has been handled. It leads credence to the claims that Dr. Mutunga is still under the control of a cartel that controls the bandit Judiciary.