AG Kihara Kariuki: State adviser losing case after case

In another ruling that contributed to a series of court losses by the government, the High Court on Thursday ruled that the rollout of Huduma Namba cards was illegal.

Justice Jairus Ngaah ruled that the government erred by not conducting a data protection impact assessment before rolling out the cards.

“An order is hereby issued to bring into this honourable court to quash the government decision of November 18, 2020, to roll out Huduma cards for being ultra vires of the Data Protection Act, 2019,” the court ruled.

The judge has further ordered the government to carry out the impact assessment before rolling out the cards.

Effectively, this means a loss by the Attorney General, Kihara Kariuki.

He has, however, filed a notice of appeal. The AG says they are dissatisfied with the judgment and will appeal it.

Article 156 provides that the AG is the principal legal adviser to the government; and shall represent the national government in court or in any other legal proceedings to which the national government is a party, other than criminal proceedings.

Three weeks ago, the High Court dismissed as illegal President Uhuru Kenyatta's decision to appoint and include Lieutenant General Mohamed Badi in Cabinet meetings.

Milimani judge Anthony Mrima quashed the decision as contained in Executive Order No 3 of 2020 and stopped the Nairobi Metropolitan Services director general from attending any Cabinet meeting or discharging any functions of the Cabinet.

Mrima said the basis for which the decision to include Badi into the Cabinet was made was not clear.

It is, however, the Building Bridges loss at the High Court and the Court of Appeal that triggered scrutiny of his tenure as Kenya’s seventh Attorney General, a position he assumed in April 2018.

In a report by People Daily soon after the Court of Appeal upheld the High Court ruling that the BBI process was null and void, lawyers and political analysts questioned whether the AG and his Solicitor-General, Kennedy Ogeto, have been providing President Uhuru Kenyatta with the right advice following a streak of losses that the government has suffered in courts.

“It should also be observed that while anti-BBI forces engaged relatively young advocates who presented a well-coordinated and harmonious assault on the BBI, the opposing side had much experienced lawyers whose arguments were relatively disjointed,” the paper quoted a Senior Counsel it didn’t name.

Earlier in June, Senior Counsel Ahmednasir Abdullahi in a tweet asked Justice Kihara to honourably resign.

“Either you are incompetent or President Uhuru Kenyatta has no time for your legal opinion. The high court has nullified every major decision made by Jubilee/Uhuru for the past four years," Ahmednasir tweeted on June 11.

In April, Justice Mrima again ruled the creation of the office of Chief Administrative Secretary was unconstitutional, arguing there was no public participation in the decision to introduce CASs as assistants to Cabinet secretaries.

Additionally, Justice Mrima said CSs who continued to serve without being vetted after the 2017 general election were in office illegally.

The AG also lost when the High Court quashed Executive Order No 1 of 2020 and declared it unconstitutional.

Justice James Makau ruled the Executive Order, which placed sections of the Judiciary, Tribunals, Commissions and independent offices under the Executive, risked jeopardising the independence of the Judiciary.

In May, the High Court ruled that the appointment of 129 heads of state corporations and board members by President Kenyatta and Cabinet secretaries in 2018 were invalid and unconstitutional.

Justices Jessie Lessit, Chacha Mwita and Lucy Njuguna said the appointments were illegal as they lacked transparency and competitiveness.

This forced Parliament to summon Kihara over the fate of 129 heads of state corporations and board members.

The AG also found himself in a tight corner over the controversial delay in the appointment of 41 judges nominated by the Judicial Service Commission in May 2019.

And early this month, a Coast-based human rights activist petitioned for the removal of AG Kihara from office over a 2017 decision at a time he was the president of the Court of Appeal.

Muslims for Human Rights chairman Khelef Khalifa, as a private citizen, wrote to Speaker Justin Muturi asking him to initiate the process of removing Kihara from office as he has not conducted himself in a manner that is compatible with the stature of the AG office.

The petition is pegged on a decision to overturn a High Court ruling by judge George Odunga that had prevented a presidential re-run, declaring illegal IEBC’s appointment of constituency returning officers and their deputies.

Odunga’s decision on October 25, 2017, had effectively halted the October 26, 2017, presidential re-run.

However, Kihara appointed a three-judge bench comprising justices Erastus Githinji, Fatua Sichale and Martha Koome, now Chief Justice.

The appellate bench overturned Odunga’s judgment and allowed the presidential re-run.

Despite the losses in the AG office, Kihara has had an impressive legal career.

CAREER HISTORY

Born Paul Kihara Kariuki on May 11, 1954, in Kiambu, he is the last-born son of the late Bishop of Anglican Church Obadiah Kariuki and Lillian Wairimu, the daughter of senior chief Koinange.

Kihara attended Nairobi School and graduated from the University of Nairobi with a Bachelor of Laws degree in 1977.

He immediately started his career, joining Hamilton, Harrison, and Matthews in Nairobi as a legal assistant and became a partner from 1981 to 1986.

In 1986, together with former Court of Appeal judges Richard Otieno Kwach, they established Ndungu Njoroge and Kwach Advocates, where he practised until 2000.

He was appointed the director of Kenya School of Law following the appointment of Leonard Njagi as a High Court judge.

He also represented former Finance Permanent Secretary in the Goldenberg cases, who was fingered for signing out a payout of all the amount outstanding to Goldenberg International reportedly on orders by President Daniel Moi.

In October 2003, President Mwai Kibaki appointed Kihara as a High Court judge, replacing Justice Isaac Lenaola as the duty judge until 2005.

In 2006, he was appointed by then Chief Justice Evan Gicheru to head an integrity review committee.

Gicheru appointed Kihara in 2009 to head the newly established Judicial Training Institute.

In 2013 Justice Kihara was appointed as a Court of Appeal judge and later appointed as president of the Court of Appeal until 2018.

“Justice (Rtd) Kihara has led a distinguished legal career, having made noteworthy contributions -in particular, the transformation of the Kenyan courts through the engineering of the blueprints that culminated in the Court of Appeal Bill and the Strategic Plan for the Court of Appeal in Kenya. His legal proficiency also extends to civil, commercial and electoral court divisions of which he has considerable expertise,” his profile in the State Law office website reads.

He is an Honorary Legal Advisor of the Anglican Church of Kenya and holds membership in the Law Society of Kenya, the Commonwealth Lawyers Association, the International Bar Association and the Lawyers International Services Agency USA, it adds.