• Her judgments over the eight years on the High Court have had far-reaching implications. Birth fathers' names on birth certificates, access to HIV-Aids drugs, among others.
• For instance, Ngugi’s ruling barring governors charged with corruption from entering their office has struck a blow aginst corruption but triggered a firestorm.
Image: FILE
One of the most respected Kenyan jurists, Mumbi Ngugi, caused a political earthquake when she struck a blow against corruption by ruling that governors charged with graft must stay away from their offices.
They howled and fumed. Innocent until proven guilty. We would never intimidate junior staff or tamper with evidence. The court overreached. The ruling will be challenged. The Council of Governors has pledged to go all the way to the Supreme Court if necessary.
On Friday last week, the Court of Appeal upheld Ngugi's judgement.
That ruling on July 24 was one of many measured judgments in which High Court judge Ngugi upheld the rights of individual citizens and questioned the state. Her judgments over eight years on the bench have had far-reaching implications.
Because of these rulings, she is revered by many. She is described in the corridors of justice as a person of integrity. Of course, that's what judges are supposed to be, though these days there are doubts about the judiciary.
Chief Justice David Maraga has praised her determination and hard work, but again, she's just doing her job.
In delivering judgments, Ngugi is measured and firm. Her reading is crisp, projected to reach all those in her courtroom. And, refreshingly, her language is simple and understandable, not dense and florid as favoured by some jurists.
But her calm demeanour does not diminish her bravery and close appreciation of the finer points of the law.
The 'earthquake' ruling on governors, with far-reaching ramifications, shut out Samburu Governor Moses Lenolkulal from accessing his office except with EACC authorisation.
Lenolkulal had wanted Ngugi to overturn a lower court decision barring him from his office. Ngugi upheld it.
He and 13 other county executives are charged with conspiracy to defraud the county of Sh84 million. They deny the charges.
Ngugi ruled that Section 62 (6) of the Anti- Corruption and the Economic Crimes Act was unconstitutional because governors were using it to shield themselves. While Cabinet Secretaries and others are required to step aside if charged with corruption, governors are exempted because there are other means to remove them, namely impeachment.
Governors had been relying on that provision.
However, Ngugi asked in her ruling:
“In the matter before me, the Governor of a County, to whom Article 10 and Chapter Six apply, is charged with the offence of abuse of office.
"He is charged with basically enriching himself at the expense of the people of Samburu county who elected him and whom he is expected to serve.
"Would it serve the public interest for him to go back to the office and preside over the finances of the county that he has been charged with embezzling from?”
Chief magistrate Lawrence Mugambi considered the same questions on July 30 when he barred Kiambu Governor Ferdinand Waititu from accessing his office.
Anti-corruption magistrate Douglas Ogoti ordered Nairobi Governor Mike Sonko to stay away — and Sonko wants the order quashed, saying there must be a presumption of innocence. Critics complain of judicial overreach.
While this was the most recent and sensational ruling by Ngugi, it was not the first in which she ruled on weighty matters of public interest.
In the defence of the rights of children born out of wedlock, Ngugi ruled in 2016 fathers' names can be included in their birth records. Many fathers had resisted.
On May 26, 2016, Ngugi declared Section 12 of the Births and Deaths Registration Act unconstitutional.
She said every child has a right to have the name of their father on their birth certificate. The father's consent is no longer required.
Ngugi agreed with the Attorney General the law was aimed at protecting men from “unscrupulous women” but said it needs to be changed to protect the rights of every child regardless of parent's marital status.
On April 19 of the same year, Ngugi ruled unconstitutional a controversial section of the Kenya Information and Communications Act, which created the offence of “misuse of a licensed telecommunication device".
Ngugi declared Section 29 of the Act was too broad, vague and violated certain constitutional provisions.
“If the intention was to protect the reputation of others, then there are clear provisions in the law of Libel. I, therefore, come to the conclusion that Section 29 cannot stand,” Ngugi ruled.
The petition was precipitated by the arraignment of petitioner Geoffrey Andare who had been sued on April 7, 2015, over a Facebook post.
In another landmark ruling, Ngugi sided with two petitioners living with HIV-Aids who challenged sections of the Anti-Counterfeit Act, 2008.
The petitioners argued that Sections 2, 32 and 34 would infringe on their right to access generic drugs because they would limit access to affordable essential drugs.
This decision was made in April 2012, just a year into her job, indicating the approach she was likely to take.
Trailblazer
Justice Ngugi was born Grace Mumbi 57 years ago in Banana, Kiambu county, into a family of 10 siblings.
She attended Thimbigua Primary School near her home. She scored 35 out of 36 points in her final exam and was admitted to Ngandu Girls’ High School in Nyeri.
In a profile published last year in the Platform, Ngugi spoke about how a supportive school environment helped her to flourish.
Sister Claire, a nun working at the school, greatly influenced the person she would become.
Sister Claire introduced Ngugi to books.
“I read many of the books she recommended which widened my outlook and perception of life in general. I learnt to see the world from wider lenses,” she is quoted in the publication as saying.
American novelist John Steinbeck is Ngugi’s favourite author. She has read and reread his novels East of Eden and Sweet Thursday and recommends them to friends and colleagues.
After high school, Ngugi, the high achiever, went to the University of Nairobi where she studied law. She attended the London School of Economics and Political Science, University of London, for a master’s of laws degree.
Perhaps her love of reading and excellent research skills helped distinguish her judgments.
In a profession known for dense prose, Ngugi’s judgments are accessible, as if written for everyone to understand, though they are steeped in the law.
Outside the courts, she has also contributed magazine and newspaper articles on a wide range of topics.
Justice Ngugi has authored articles on the law of adoption, human rights, the role of Parliament, squatter settlements, among other topics.
Prior to serving on the High Court, Ngugi worked in private practice, public service and in civil society.
She began her career as a legal assistant and later worked in the Attorney General’s Chambers. She also worked with the Federation of Women Lawyers (Fida).
Activism for people with albinism
As a person living with albinism, Ngugi has spoken widely about the challenges posed by her condition, the partial or complete lack of pigmentation.
She has said there is an erroneous assumption that people with albinism rarely live to reach 40 years. Her own life, she said, is a testament to the myths about her condition.
Ngugi co-founded the Albinism Foundation of East Africa in 2008. It is comprised of people with albinism, parents of children with albinism and professional friends with an interest in the rights of persons living with albinism.
Their aim is to ensure the social acceptance of and help for people with albinism.
Ngugi told a Standard journalist in 2011 that it is not fair for people with this condition to die unemployed, uneducated, unaccepted, maimed or killed for witchcraft rituals.
“Through the public education and advocacy work that I and other people with albinism are doing, I am hoping fathers will accept their children with albinism, and employers will not think twice about not employing a person with albinism,” she said.
In this role, she has also appeared in a campaign by the United Nations Human rights office.
Awards
For her work, Justice Ngugi received the CB Madan Award last year at a ceremony attended by Chief Justice David Maraga.
In 2017, the Law Society of Kenya awarded Ngugi for Distinguished Service in the Administration of Justice.
She has also received the Brand Kenya Ambassador Award (2013) and the International Commission of Jurists’ Jurist of the Year (2013).
She’s held residencies and scholarships in various capacities.
Her commitment to serving the interests of citizens has captured the imagination of many who follow her career closely.
Her private life is very private.