Kenya: Weird and Wacky Cases of the Year

15 September 2019
opinion

Legal cases come in different shades and their effect on parties, judges and the public vary. Sometimes they are just hilarious, sad or even outrightly puerile.

One funny decision is the case of a father who sued a football club in which his son is a player.

The father contended that the junior football club had discriminated against and caused emotional damage to his 10-year-old son by substituting him with a player of a different race during a match in 2018.

The father may have met his match when the court ordered him to pay the equivalent of 3,000 sterling pounds which he had sought as damages for the harm done to his son.

The claim was dismissed on appeal because the suit papers were delivered to the field rather than to the club's offices as required by law.

Few will argue that the court was not on the right side of justice in this case.

But opinions are divided by the decision that was made by a court in England in June.

In the case of Gemma Bruishett, a Yoga teacher who sued a cyclist who knocked her down during rush hour.

ROAD SAFETY

The court heard that Ms Bruishett was hit by the cyclist and injured when she stepped out onto the road while looking at her phone and not concentrating on the oncoming traffic.

The verdict of the court that the cyclist was wholly to blame for the accident and therefore liable to pay damages for the pedestrian's injuries is contentious.

This is because the cyclist had not only come through a green traffic light and had the right of way at the time, but that he had also sounded a horn and tried to swerve to avoid the accident.

The judge ignored all of these and stated that cyclists must always be prepared to contend with pedestrians who behave in unexpected ways.

He set a standard of care on the cyclists to always anticipate irrational action by pedestrians.

If that cyclist is hard done by, then the reasoning of Justice Owen Davies in the case of a drug user set absurd standards.

The accused had pleaded guilty to possessing cocaine and faced a sentence of up to seven years in jail.

Instead, the judge reasoned that the accused should not suffer any more than a Cabinet secretary in the United Kingdom who had admitted to having used drugs in his autobiography.

IMPUNITY

Even the Barrister representing the accused couldn't help but wonder, 'who says that justice and humour cannot mix?'

Beyond the humour, there is a danger that using the behaviour of politicians as the standard of criminal responsibility could breed impunity.

But if the lawyer in the drugs case found humour in the decision of the judge, the amazement will continue for lawyers in the case of a criminal defendant in the United States.

Hassan Bennet was in June this year acquitted of murder after 13 years in jail, four trials and an appeal.

In the first three cases, Mr Bennet was convicted of the murder despite having counsel to represent him on each of those occasions.

He then appealed on the ground that his lawyers had failed to represent him properly. He succeeded on appeal and the court ordered a retrial.

The accused acted for himself at the retrial and was acquitted.

Despite his disappointment with the work of the lawyers in his case, Hassan Bennet intends to join the profession and use his knowledge and experience to help other persons who may find themselves in similar situations.

POLL PETITIONS

For those in Kenya who rant at judges after decisions made on election petitions, a UD District judge may provide a wake-up call.

A few days ago, Judge Matthew Kennelly dismissed a case brought by a candidate who had lost an election in Illinois due to dirty tricks used by his opponent.

The judge reasoned that the dirty tricks by the opponent were essentially a political matter which was supposed to be punished by the voters.

Because the voters did not appear to mind these dirty tricks enough to punish the party perpetrating them, the judge reasoned, the court could not interfere if the voters went ahead and elected a candidate who engaged in dirty tricks.

So much for legal casuistry: the challenger was not the only one left wondering how the results of a dirty campaign could be left to stand because the voters endorsed them by electing the perpetrator.

There were also decisions which were plainly prurient, if sad. One of them was of a man who, while on a business trip for his employer, died while engaging in sex late one night in 2013.

His family sued the employer claiming compensation on the ground that the death occurred while the deceased was essentially at work and that this was therefore an industrial accident.

COMPENSATION

A court in France agreed with the family and labour authorities that the death was an accident at work and, therefore, entitled the man's family to compensation and benefits from the man's employer and the French government.

The reasoning of the court was that the act in which the deceased was engaged in at the time of his death was equivalent to any other normal life undertaking, like taking a shower or having a meal!

The judges added that an employer shall be responsible for an employee while the employee is travelling on a work assignment, regardless of what the employee does outside normal working hours.

The deceased's spouse and children will therefore stand to receive a portion of his last salary until what would have been his retirement age.

But in fairness to the courts, they have also weighed on matters of profound public importance.

At the time of this writing, a High Court in Kenya had just made a far-reaching decision regarding religious liberties of children and their right to education.

Justice Chacha Mwita held that a school would be acting unconstitutionally and infringing on the right of a child by insisting that the child of Rastafari faith must trim her hair or cut off her dreadlocks as a condition for being admitted to or to continue studying in that school.

RELIGION

To the judge, the constitutional right of a child to an education cannot be conflated against the equally valid freedom of conscience and the right to practice her religious faith so as to make her choose either of them.

The implication of this decision is far-reaching: constitutional rights are meant to be exercised as a bundle of rights and not as separate rights to be severed. Strong legal reasoning from Justice Mwita.

While on the issue of religious faith in public institutions, the Federal Appeals Court in the United States held about one month ago that it was legal for the House of Representatives in the State of Pennsylvania to ban guest chaplains who are either atheist or agnostic from presiding over its meetings.

The judges argued that prayer presupposes a higher power and therefore a person who shares no belief in a deity would have no reason to offer prayers before the Pennsylvania legislative assembly.

Persons of humanist and atheistic beliefs found this decision upsetting and argued that the decision appeared to contradict the constitutional prohibition against separation of state and religion, known as the Establishment clause.

The decision will definitely go on appeal and may find its way to the US Supreme Court.

These decisions have shown that the courts have therefore become a theatre of the serious and significant but also of the absurd and funny.

The writer is Head of Legal, Nation Media Group Ltd.

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