How Kenyan Courts Work For U. Kenyatta In Land Grab

[MOON Ki]

• Tweet

His uncle sued to get back stolen land, and the court removed Uhuru's name, supposedly on the grounds of presidential immunity.     This happened some time ago, but a case still continues against Ngina:

http://www.the-star.co.ke/news/uhurus-uncle-sues-over-old-land-grab

What the questionable court ruling did not bother with is the difference between criminal and civil proceedings and the conditions attached to the latter.

Here is the relevant article of the Kenyan Constitution:

143. (1) Criminal proceedings shall not be instituted or continued
in any court against the President or a person performing the functions
of that office, during their tenure of office.

(2) Civil proceedings shall not be instituted in any court against
the President or the person performing the functions of that office
during their tenure of office in respect of anything done or not done in
the exercise of their powers under this Constitution.

(3) Where provision is made in law limiting the time within
which proceedings under clause (1) or (2) may be brought against a
person, a period of time during which the person holds or performs the
functions of the office of the President shall not be taken into account
in calculating the period of time prescribed by that law.

(4) The immunity of the President under this Article shall not
extend to a crime for which the President may be prosecuted under any
treaty to which Kenya is party and which prohibits such immunity.

Note that there is no absolute bar to civil proceedings against a president.    Note the underlined.    According to the High Court, Uhuru's grabbing land before he became president is now part of actions he has taken in exercise of .... !

Even if one, for some funny reason, excludes Uhuru,  more interesting is the involvement of the AG in a private civil law suit between two private citizens.   

[Kim Jong-Un's Pajama Pants]

The Star casually ignores that provision you mention.  As do the courts presumably.

Mama Ngina argues that the case is too late.  Why would the man not bring the case to the court's attention as soon as he was evicted by Kenyatta?  Notwithstanding what a mortician would be doing in this case, it is clear that even he is puzzled.

Mama Ngina urged the court to dismiss the case, saying it is time-barred.

She asked why it has taken Mungai so many years to lodge a complaint.

Attorney General Githu Muigai said the case should be thrown out.

Githu said Mungai has not explained why he waited more than 12 years to lodge the suit.

[MOON Ki]

The Star casually ignores that provision you mention.  As do the courts presumably.

Mama Ngina argues that the case is too late.  Why would the man not bring the case to the court's attention as soon as he was evicted by Kenyatta?  Notwithstanding what a mortician would be doing in this case, it is clear that even he is puzzled.

Mama Ngina urged the court to dismiss the case, saying it is time-barred.

She asked why it has taken Mungai so many years to lodge a complaint.

Attorney General Githu Muigai said the case should be thrown out.

Githu said Mungai has not explained why he waited more than 12 years to lodge the suit.

With family matters, time can take a secondary role; I know this from a case of my own in which a relative stole our land. 

I can find no basis on which the court last year struck out Uhuru's name (on the basis of "immunity").     That's the bit I find really problematic.

Another thing is that he sued Uhuru before the latter became president.   At the time nobody seemed to have complained about the time, and the case was allowed to go ahead after Uhuru's name had been struck out by the court (which happened as soon as he became president).     

As far as I know, the  "law of adverse possession" in Kenya has a 12-year limit; so maybe President and Mother have managed to get away with it.  The question is when did the counting start?   

[Omollo]

If he had any claim to Immunity from civil litigation, it ought to have vanished the day his lawyers went to court to obtain telephone records of witnesses (and in the process of course traced some of them for intimidation and killing). In decent countries, there is an intrinsic provision that if you sue then you can be sued. To maintain immunity one has to avoid suing. Once he sues, then that immunity is gone as denying others the opportunity creates an inequality that is repugnant to the appearance of justice. I wish I could cite examples.

MoonKi, this brings me to the question of the quality of advocates we have in the country. I find them wanting.