Kenya: State to Pay Karua Sh2.8 Million for Violations in Waiguru Election Case

30 November 2020

The government will pay Narc Kenya party leader Martha Karua $25,000 (about Sh2.8 million) in damages for infringement of her right to a fair hearing in an election petition against Kirinyaga Governor Anne Waiguru.

In a landmark judgment by the East African Court of Justice, a three-judge bench declared that the State, through the Supreme Court, infringed on Ms Karua's right to access justice.

The regional court stated that the Kenyan government violated its commitments to the fundamental and operational principles of the East Africa Community (EAC), specifically the principle of rule of law guaranteed under Articles 6(d) and 7(2) of the Treaty.

Principal Judge Monica Mugenyi and justices Charles Nyawello and Charles Nyachae said it was wrong for the Supreme Court to dismiss Ms Karua's petition on a technicality as this curtailed her right to access to justice.

They said though it is far-fetched to suggest the Supreme Court decision was reached in an unfair hearing and by an incompetent, non-independent or partial court, from the perspective of access to justice the decision is "deeply troubling".

Arguments

The top court dismissed the petition upon finding that its hands were tied by the Constitution because the timelines for hearing the matter had lapsed.

"We have noted that the High Court determined the petition after the lapse of six months from the date of filing. That was an affront to the Constitution and the enabling electoral laws," said the court.

Ms Karua, a seasoned lawyer-cum-politician and a senior counsel, argued at the EA court that by throwing out her case, the Supreme Court abdicated its role and denied her petition its day in court.

While ruling in her favour, the regional court said the matter at the Supreme Court was no longer an electoral one but a search for a constitutional solution to a legal problem.

"Sitting as such, the Supreme Court would be the judicial organ mandated to provide a just and equitable solution to the identified procedural debacle, where no time is allotted to the hearing of matters on remission," the judges said.

The chronology of events in the case started with the High Court in Kerugoya, which upheld a point of law that Ms Karua's failure to include results of the disputed election and the date of declaration of results was fatal.

This led to the striking out of the petition.

Ms Karua then appealed the decision and the Court of Appeal in Nairobi ruled in her favour and returned the matter to the High Court for hearing and determination on merits.

But by the time the matter was been concluded, the six-month period provided by the law had lapsed. In addition, the Supreme Court had declared that the period provided for settlement of electoral disputes cannot be extended by any court.

Legal provision

The regional court said that instead of throwing out Ms Karua's case, the apex court should have interpreted the Constitution so as to provide a remedy on the issue of timelines so as to promote access to justice.

"There was a duty upon the Supreme Court to redress the identified lacuna (on the issue of timelines) in law so as to engender equity and social justice in the adjudication process. This would not be tantamount to usurping the legislative role of the legislature but rather a breath of judicial life into the provisions of the Article 259(8) of the Constitution to underscore access to justice for all persons as guaranteed in Article 48, and ensure that Kenyan law is never silent, always speaking," said the regional court.

The judges noted that the Constitution provides an appropriate legal framework for the resolution of the unjust circumstances that Ms Karua found herself in.

They cited Article 259(1)(a), which calls for interpretation of the Constitution in a manner that promotes its purposes, values and principles.

Further, they noted that the Constitution demands that courts exercise their judicial authority with due regard to the protection and promotion of its purposes and principles.

"For present purposes, these are to be found in Article 10(2)(b) and 48 of the Constitution. The obligation upon the State to ensure access to justice for all persons is thus anchored in the national ethos of human dignity, equity, social justice as highlighted in Articke 10(2)(b)," the court said.

However, the bench noted that Ms Karua did not seek an extension of time from the Supreme Court though at the same time, no time is designated in the Constitution for electoral disputes remitted to High Court for determination.

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