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January 20, 2019

An Open Letter To Chief Justice Hon Willy Mutunga

Dear Hon. Chief Justice,

A Reformed Judiciary Should Not Condone Delayed Justice That Is Justice Denied.

 I am writing this open letter to you as head of Kenya’s Judiciary, not only for the correction of injustice but also to ask whether judicial reforms are giving birth to justice or not.

I am writing this second open letter to you though you did not respond to my first open letter to you because we were in the trenches together and in your own words, “even the scum of the earth have rights.” If you read this letter, please respond to the issues I have raised.

I write this letter with great circumspection, restraint and respect, not to break the rule of sub ju dice by discussing my case in court but to complain against administrative injustice.

 When injustice is ongoing and involves even one Kenyan, it should be raised at the earliest opportunity to avoid perpetuating it when it can be stopped. After all, after food, clothing and shelter, justice is mankind’s most important need whose provision you as Chief Justice should reassure Kenyans. Justice must be availed not just to the high and mighty but all.

 But Honorable CJ, please allow me to come to the point. I have written this letter to ask you to rescue justice from the jaws of a judge whose conduct I believe is unprofessional and is treating people as Kanu courts did during the era of one party dictatorship.

 Before I proceed, allow me to state from history that before reforms, our courts routinely denied poorer Kenyans justice by delaying hearing of their cases for decades.

 And it all started with colonialism when courts only protected lives and properties of white colonial settlers.

 During Kanu one-party dictatorship, many Kenyans were also denied justice, which was the privilege of the powerful African ruling class. At this juncture, let me say when we fought for second liberation it was to avail justice to all and especially the poor and powerless; it was to create reformed courts whose Chief Justice would not hesitate to avail justice to the people you have called “the scum of the earth.”

 Honorable CJ, as a victim of injustice under Kanu dictatorship, I am before one of your courts looking for justice that I could not have dreamt about before but is still frustrated by those who don’t believe in judicial reforms.

 My High Court Civil Case no 463 of 2003 was first filed in court on 20th May 2003. Eight years later on 22nd Feb. 2011, the case was first heard before Justice Dulu who was later transferred to Machakos. Due to this transfer, the case resumed almost three years later on 18th November, 2013 before Justice David Onyancha but was adjourned by court to hear the case of Chris Murungaru on considerations of stature.

The hearing of the case was to resume on 24th February 2014 but the advocate for defense Mr. Billig, applied for a second adjournment on grounds of indisposition that was not proved.

 When the hearing resumed on 18th June, 2014, Justice Onyancha granted a thirdadjournment on the same unproven ground of indisposition of Mr. Billig. The Judge however instructed that the case would proceed the following day with or without Mr. Billig. But when we returned to court for hearing on 19th June 2014, to my shock, the Judge again granted a fourth adjournment and fixed hearing for 9th and 4th September when I believe both the defense and the Judge will have an excuse for further adjournments that will postpone the hearing of the case indefinitely.

 Right now, I cannot fathom why and how a judge can be so begrudging and insensitive to the rights of one party and so generous to those of the other. I can only think the Judge is in a conflict of the following interests.

First, I am suing a company that is owned by retired President Moi who made Justice David Onyancha judge after he had ceased being a Kanu MP and Assistant Minister. It is obvious the debt of gratitude that the Judge owes the former president cannot allow him to do justice.

Second, not being personally known to Justice David Onyancha, I have no personal grudge against him and I believe his bias against me can only be ideological and political. During the great political divide in our country, Hon. David Onyancha was ideologically and politically in the Kanu camp, defending the status quo, while I was in the opposition camp fighting for change. Due to this ideological enmity, Hon. Onyancha now Judge, cannot do justice.

On account of this conflict of interests, I enjoy no equality of arms with the defense in this case. Consequently, I requested the trial Judge to recuse himself from the case but he refused.

 I must now appeal to you for justice that I can only get through another Judge that harbors no ideological enmity, grudge, bias or malice against me.

 When Kenya became independent, white colonial magistrates and judges had no choice but to quit judiciary. When multi-party democracy was restored in Kenya, judges of Kanu one party dictatorship should also have quit Judiciary to give unmarred justice a chance.

 If Judiciary today enjoys some freedom and space from the Executive, I have made my humble contribution to it. As a citizen, I deserve justice that I don’t get from the court of Justice Onyancha and therefore request your office to redress this most unfortunate situation. Surely, justice denied for 11 years is justice denied. Please allow justice to blossom and not to be smothered at birth.

 The speed at which a case is heard and concluded must never depend on personal stature. Kenyan Judiciary will have failed if courts cannot deliver justice to the littlest person.

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