• The majority say the late President Kenyatta's image is not a portrait.
• One judge bench had a dissenting opinion over the image.
Image: FILE
The state yesterday won after the High Court approved the use of the image of the late Mzee Jomo Kenyatta on the new currency notes.
Two judges dismissed a consolidated petition filed by EALA MP Simon Mbugua and activist Okiya Omtatah challenging the image, which they said is a portrait.
Justices Kanyi Kimondo and Asenath Ongeri ruled that the CBK had the power to withdraw the old 1,000 notes even though it did not go through public participation.
The period of four months deadline was reasonable, they said.
“The CBK had power and discretion to demonetize or withdraw the old notes in order to stem illicit financial flaws like corruption, money laundering, terrorism and counterfeit notes,” the majority held.
Judge Kimondo had earlier told the court that the bench had a dissenting opinion from Judge Charo Mrima who disagreed with part of their judgement.
The two said the image of the founding president used on the new currency notes is not a portrait as had been alleged by the petitioners.
They also ruled that the statue is indeed part of KICC even though it had been amplified to be bigger than KICC. The duo also held that the CBK has not breached the law in using the image.
Judge Kimondo said the image is a side view and not frontal. He noted that there is another image of an individual in the 200 new note that clearly shows identifiable individuals.
They ruled that there was adequate public participation in the printing of the new design.
Omtatah had also sued Governor Patrick Njoroge in his personal capacity to be held liable and surcharged for expenses incurred in printing the new notes but the judges said Njoroge is answerable to the CBK board.
They said by the time the process commenced in 2012, Njoroge was not the governor and cannot be held personally liable.
While agreeing with his fellow judges on all the other issues, Judge Mrima disagreed with their ruling on the image.
Mrima was of the opinion that Article 231(4) of the Constitution provides that notes and coins issued by the CBK may bear images that depict or symbolise Kenya or an aspect of the country and shall not bear the portrait of any individual.
“Whereas there is no doubt that images which depict or symbolise Kenya or an aspect of Kenya may be used in the currencies, to me, such images should not be of recognisable or identifiable persons,” he said.
He said Kenyans desired a change from associating currencies with a person, community, or even political leadership. “There is no doubt the impugned statue is an image and I have looked at the new currency notes and seen some images thereon,” he held.
Judge Mrima said one of the images that clearly stands out is the statue and it is easily recognisable as that of the founding president.
He noted that the image is also enlarged and is not proportional to the tower.
“I agree with my learned judges that the images at the back of the 200 notes saying that 'we are satisfied they portray some unidentifiable individuals,'" he said.
It was his view that he would have partially allowed the petition and since the new currency notes are already in circulation, he would have suspended the declaration of the invalidity of those notes for a period of at most one year to accord CBK time to issue legally compliant currency notes.
Petitioners Mbugua and Omtatah said they would appeal against the judgment.
(Edited by F'Orieny)