Connect with us

Profiles

Philip Kipchirchir Murgor: It is the CJ’s Job or Nothing For the Man Who Knows Where the Skeletons are Buried

4 min read.

As a former government insider, Murgor will be attractive to executive-minded members of the Judicial Service Commission hoping to break the traditional relationships between lawyers in private practice and judicial officers thought to frustrate government agenda.

Published

on

Philip Kipchirchir Murgor: It is the CJ’s Job or Nothing For the Man Who Knows Where the Skeletons are Buried
Photo: Judicial Service Commission Kenya
Download PDFPrint Article

Philip Kipchirchir Murgor, the 59-year-old mercurial former prosecutor, usually likes to have the last word. Four months after his dramatic dismissal at the height of a public uproar over the killing of wildlife warden Samson ole Sisina, then Head of Public Service Francis Muthaura wrote a one-page outline of Murgor’s entitlement in terminal dues following the termination of his three-year contract a year early. Murgor fired back with a 14-page response that not only complained about his shabby treatment, but also opened a closet rattling with skeletons.

Murgor listed 17 issues and criminal cases he claimed had brought friction between him and powerful forces in government. They included the controversy over how police wanted to dispose of a tonne of cocaine seized in Kenya worth Ksh6.4 billion; the Anglo Leasing scandal around the procurement of a forensic laboratory; the murder case against Lord Delamare’s grandson Tom Cholmondley; the prosecution of Goldenberg scandal mastermind Kamlesh Pattni for murder; and the fraud case against Ketan Somaia.

That letter has provided much of the fodder a section of the Law Society of Kenya has used to question his suitability for the Chief Justice’s job.

Murgor has not applied for the vacancy in the Supreme Court, making it clear that it is either the CJ’s job for him or nothing. The calculation could be to evoke conventional wisdom, which holds that the Supreme Court was designed to represent the big tribes in Kenya’s politics, and the retirement of Justice Philip Tunoi in 2016 meant that the Kalenjin community, the third largest in the country, has no representative in the apex court. The expected candidacy of Deputy President William Ruto in the 2022 elections would provide an optics nightmare for the judiciary if the Supreme Court does not have a Kalenjin on the Supreme Court.

Murgor’s spouse, Court of Appeal judge Agnes K. Murgor, withdrew her application for Deputy Chief Justice in 2016 citing personal reasons, but other community members who have applied for the Supreme Court vacancy include CJ candidate Alice Yano and High Court Judge Joseph Sergon.

Back in 2003, the political calculation in appointing Murgor as director of prosecutions was that he would bring the insider knowledge required to nail the suspects for crimes committed during the Daniel arap Moi era. He initially acted as go-between in negotiating the retirement of Chief Justice Bernard Chunga, whom the new administration had marked for removal from office.

While still the blue-eyed boy of the Narc administration, Murgor was in the thick of discussions with presidential commissions of inquiry into the Goldenberg corruption scandal, and was assisting counsel in the tribunal investigating corruption/misconduct allegations against several judges of the High Court in 2003.

Murgor quickly built confidence in the prosecution service by closing the door to the use of prosecutions for extortion. He designed and launched major reforms through the creation of a fully professional directorate, with a reporting structure from the district and provincial levels up to the national office. He rubbed establishment bosses the wrong way by phasing out lay and non-professional police prosecutors, and making it mandatory that professional prosecutors review all criminal investigation and prosecution files before commencing cases.

As a key member of the Governance, Justice, Law and Order Sector (GJLOS) initiative, he became a critical contact for visiting missions from the United Nations, the World Bank, the International Monetary Fund and other multi-lateral agencies keen on tackling corruption, money laundering, terrorism, drugs, and human trafficking.

For a while, the Directorate of Public Prosecutions was rolling in donor money, used to set up an ultra-modern facility to aggressively handle stalled anti-corruption and economic crime cases. A national prosecution policy and a manual to guide prosecutors throughout the country was developed.

When the appetite for tackling corruption in government dissipated, Murgor found himself often at odds with the very people who had pushed for his appointment, but was still dissuaded from resigning. He had opened the doors of the Directorate of Public Prosecutions to foreign partners frustrated with the culture of impunity in Kenya, and received funding that enabled him to begin to assert the office’s independence even before the guarantees of the 2010 Constitution. Such was his credibility in donor circles that even after his dismissal, Murgor was photographed twice with then Illinois Senator and later US President Barrack Obama in meetings arranged by the US state department.

As a former government insider, Murgor will be attractive to executive-minded members of the Judicial Service Commission hoping to break the traditional relationships between lawyers in private practice and judicial officers thought to frustrate government agenda. Some within the judiciary dread him as a man who knows where the skeletons are buried.

Murgor’s familiarity with government, and management experience could stand him in good stead in normalising relations between the Judiciary and the Executive. He was present as laws on money laundering, antiterrorism, witness protection, anti-narcotics, anticorruption and mutual legal assistance were being created, and was involved in the extradition of fugitives in international drug trafficking related crime.

Before has appointment as DPP, Murgor had first worked as state counsel at the Attorney General’s office for eight years after graduating from law school, securing convictions against government critics such as George Anyona before heading into private practice with his wife. He was the lawyer for the Central Bank of Kenya as it sought to recover money lost through the Goldenberg foreign exchange compensation scheme, and became a star player in the Commission of Inquiry that laid bare the anatomy of the Sh158 billion scandal. Murgor subsequently represented the Central Bank of Kenya in the Commission of Inquiry into the Sale of the Grand Regency Hotel.

Back in private practice, Murgor represented the World Duty Free Company against Kenya in an illegal expropriation claim in arbitration before the International Centre for the Settlement of Investment Disputes. He has argued cases at the Court of Appeal and the Supreme Court, among them the digital migration case pitting the Communications Commission of Kenya against a consortium of media firms.
He successfully represented two female members of Limuru Country Club in overturning rules that discriminate against women in private clubs, and was recently in the headlines representing the widow of golfing tycoon Tob Cohen against a murder charge.

Murgor, a teetotaler, has been on the roll of advocates since 1986, and was appointed senior counsel in 2020 in the latest listing which had stalled owing to opposition from the Law Society of Kenya. He obtained a Master of Arts degree in international law from the University of Nairobi in 2011 and is member of the Chartered Institute of Arbitrators and the International Centre for the Settlement of Investment Disputes (ICSID), where he is on the Panel of Arbitrators. Murgor is also a patent agent under the Kenya Industrial Property Institute since 2010.

Back to: Kenya Chooses Its Next Chief Justice

 

Support The Elephant.

The Elephant is helping to build a truly public platform, while producing consistent, quality investigations, opinions and analysis. The Elephant cannot survive and grow without your participation. Now, more than ever, it is vital for The Elephant to reach as many people as possible.

Your support helps protect The Elephant's independence and it means we can continue keeping the democratic space free, open and robust. Every contribution, however big or small, is so valuable for our collective future.

Kwamchetsi Makokha
By

Kwamchetsi Makokha is a journalist with over two decades on the frontline of the struggle for human dignity. Co-editor (with Arthur Luvai) of the East African poetry anthology, 'Echoes across the Valley', he escapes into literature, the performing arts and agriculture. He is currently Programme Advisor at Journalists For Justice.

Profiles

Fredrick Ngatia: Uhuru’s Lawyer Who Added a ‘Province’ to Kenya Now Wants CJ Job

Beyond his 40 years’ experience in the practice of law, Ngatia will be brandishing his freshly minted masters in applied philosophy to prove that a CJ needs a multidisciplinary approach.

Published

on

Fredrick Ngatia: Uhuru’s Lawyer Who Added a ‘Province’ to Kenya Now Wants CJ Job
Photo: Judicial Service Commission Kenya
Download PDFPrint Article

Fredrick Ngatia has never had to attend a job interview in the past 40 years. Selected as one of the top six students from the Kenya School of Law to join the Attorney General’s office, Ngatia sat across Frank Shields — who later become a notorious duty judge — as he lit a cigarette and asked the rookie lawyer to choose between criminal prosecution and civil litigation.

Ngatia chose civil litigation and takes great pride that he subsequently added a 9,000 square-kilometre hump to the map of Kenya at the border with Sudan. He had begun to inquire into the Ilemi Triangle, and his thesis for a Master of Laws degree at the London School of Economics shaped Kenya’s case when it acquired the territory of over 9,696 square kilometres.

Sudan, an Anglo-Egyptian condominium, had an imprecise international boundary with Kenya because the area then known as Rudolph Province was originally in Uganda, and was customary grazing grounds for the Turkana.

A joint survey team in 1938 created two lines, a straight one in the northern part of Kenya, and a patrol line by Sudan in 1950. Below the patrol line, Sudan was not interested in the territory, but Kenya decided to administer the area to pacify grazing communities in what would come to be known as the Ilemi Triangle. It is possible to acquire territory through the inaction of the other country and the passage of time. Ngatia believes that similar reasoning could save Kenya heartache in its territorial dispute with Somalia at the International Court of Justice.

Having represented Uhuru Kenyatta in three presidential election petitions at the Supreme Court, Ngatia feels the need to fight off claims that he is partial to the Executive. Some reckon that nominating him to the Chief Justice’s position will be the equivalent of the Judiciary handing itself over to its Executive executioner. He is perceived as someone with access to the president, and his appointment could be read as capitulation on the part of the Judicial Service Commission, which is engaged in a struggle with the president over the appointment of 41 judges it nominated, as well as reductions in the judiciary development budget.

In his application, Ngatia has disclosed that he donated KSh500,000 to the Jubilee secretariat in 2017 during a luncheon for professionals.

Ngatia’s allies consider him to be just the person to introduce structured dialogue over the appointment of judges and inadequate funding. He is keen to be seen as his own man, but, because of his regular advocacy for Uhuru Kenyatta in the courts, he is likely to be perceived as someone who will not need to break the ice to get conversations with State House going.

Ngatia has represented the Council of Governors as well as the National Assembly in the Supreme Court and believes that his experience would stand him in good stead in understanding the interests of the various institutions the judiciary has to deal with.

Already fabulously wealthy, Ngatia does not need the Chief Justice’s job but perhaps he feels the call of public service; a number of professional colleagues are pushing him to do something for the judiciary.

Although Ngatia defines his mission as focused on improving the work ethic and the speed in processing matters in the Supreme Court, he has not applied for the vacancy in the court, instead putting all his eggs in his application for the Chief Justice’s job. Ngatia is keen to deflect political attention from the Supreme Court, saying that it is established for reasons other than as a forum for politicians to flex muscle. Yet his application speaks just to those political anxieties. Jubilee Party had tasked Ngatia with identifying a suitable candidate to support for the position of Chief Justice but after that search collapsed, he put in his application.

Although Ngatia has never sat on the bench, he is a familiar presence in litigation circles, and has been repeatedly recognised by Chambers International as a top arbitrator in Kenya. At 65, few other judges in the Supreme Court can outrank Ngatia in seniority. This will likely calm fears about a Chief Justice who would overstay at the top by serving 10 years. His is the ideal age to serve for five years, dispense with one presidential election petition, and be gone before feelings harden against him. Ngatia is keen to deploy more information communication technologies to improve efficiency as he builds collegiality and civility in the courts.

Ngatia’s long client list includes Kamlesh Pattni when he faced a murder charge, Justice Philip Tunoi when he faced a tribunal investigating his misconduct, Judges Philomena Mwilu, Mohammed Ibrahim and Abida Ali-Aroni at the Judges and Magistrates Vetting Board, and the late Vice President George Saitoti when he challenged his prosecution over the KSh158 billion Goldenberg scandal. Ngatia also filed a complaint against Judge Joseph Mutava at the tribunal investigating him, calling him a serial liar. The judge was removed from office.

Ngatia shot to fame with his representation of Uhuru Kenyatta in the 2017 presidential election petitions. As soon as the 1 September 2017 nullification decision came in, Ngatia began preparing for the next petition – which followed in November after the fresh election. He has managed a frenetic 14-day petition, and believes the same leadership principles would enable him to lead the institution.

Yet, Ngatia does not consider the presidential petitions as his greatest achievement. The apogee of his law practice is the pro bono case former Chief Justice Willy Mutunga handed him when he requested Ngatia to represent death row suspects. His success in the Francis Kariokoo Muruatetu case at the Supreme Court, where it was declared unconstitutional to impose a mandatory death sentence on convicts, is what he considers his finest piece of work. Some 5,000 prisoners have since gone back to the High Court for resentencing.

Beyond his 40 years’ experience in the practice of law, Ngatia will be brandishing his freshly minted masters in applied philosophy to prove that a CJ needs a multidisciplinary approach. He researched euthanasia, which is prohibited in Kenya, and his research found that where it is administered, the moral questions it raises demonstrate that apex courts deal with questions of bioethics, theology, the transcendental nature of man.

Last year, Ngatia joined the hallowed ranks of Senior Counsel, and he will be battling the optics of ethnic balancing in joining a Supreme Court where another member of his Kikuyu community is also a long-serving member.

Back to: Kenya Chooses Its Next Chief Justice

 

Continue Reading

Profiles

Matthews Nduma Nderi: Judge With a Heart for Oppressed Workers Seeks CJ Job, Spot on the Apex Court

Justice Nderi’s most famous defence of workers was in a 30 June 2015 judgment; for a few months thereafter, Justice Nderi was the darling of the teaching fraternity after he awarded teachers a 50 to 60 per cent increment on their basic salary.

Published

on

Matthews Nduma Nderi: Judge With a Heart for Oppressed Workers Seeks CJ Job, Spot on the Apex Court
Photo: Judicial Service Commission Kenya
Download PDFPrint Article

Underdogs have an unfailing defender in Matthews Nduma Nderi, the 59-year-old former principal judge of the Environment and Labour Relations Court.

Justice Nderi has written and read many judgments that strike a blow for justice for low-income workers such as security guards and domestic workers. Last year, he ruled in one such case: “It is unlawful to terminate the employment of a house help without giving her notice. It is also illegal and unfair labour practice to send a house help away without paying her any terminal benefits and not giving her certificate of service.”

The domestic worker had challenged her dismissal, which had followed her request to her employer for a salary increment. The judge awarded her Sh270,964 for the unfair termination of contract.

Justice Nderi’s most famous defence of workers was in a 30 June 2015 judgment; for a few months thereafter, Justice Nderi was the darling of the teaching fraternity after he awarded teachers a 50 to 60 per cent increment on their basic salary.

It is not one of the judgments he has sent to the Judicial Service Commission as part of his five sample writings to be considered in his application for the positions of Chief Justice and Supreme Court judge — and for good reason.

Within four months of that decision, five Court of Appeal judges had torn his legal reasoning to shreds, faulted his fidelity to procedure, and accused him of encouraging litigants to commit offences.

Justice Erastus Githinji found that the Labour Court had no jurisdiction to award the teachers a basic salary increment and allowances, as it could not derive such jurisdiction from the consent order Judge Nderi used as a basis to convert the petition into an “economic dispute”.

“If a judge takes up the role of a conciliator or mediator, then he or she should relinquish the role of an adjudicator,” wrote Justice Martha Koome in the same judgment. “It was unprocedural and untidy for a judge to switch from one role to the other.”

Koome added that the judge probably saw himself as a problem solver, referring to the tension caused by the incessant teacher strikes: “The judge was in a hurry to finalize the matter and resolve the dispute expeditiously. However, the award turned out to be a ‘quick fix’ that could not stand the test of the law and the Constitution.”

For her part, Justice Philomena Mwilu (as she then was) added: “The trial judge appears to have been overzealous to end the perennial cause of teachers strikes and thereby ignored the petition that started the proceedings, and framed issues for determination which were outside the petition.”

Another judge, Justice Festus Azangalala, did not spare Judge Nderi either, writing in his appeal judgment: “The Judge assumed a jurisdiction which, under the circumstances, he did not have.”

In concluding, Justice Otieno Odek declared that a judgment of a court cannot, and should not, direct any person to commit an offence. “To the extent that the judgment directs TSC to effect payment without following constitutional procedures and to the extent that the judgment requires TSC and or its officers to commit an offence, [the judgment] is unconstitutional, null and void.”

Government experts had argued that implementing Judge Nderi’s award – flowing from a tentative offer the TSC had made to the teachers’ unions before they were advised by the Salaries and Remuneration Commission to hold their horses — would expand the teachers’ wage bill by KSh216 billion, and trigger an additional increase of KSh360 billion for the rest of the civil service. In total, the economists projected that the public wage bill would swell by KSh929.8 billion, representing 95.3 per cent of all domestic revenue. They further argued that this would also significantly increase the pension liability from the KSh991 billion at the time.

Born in Embu County in 1962, Judge Nderi graduated with a Bachelor of Laws degree from the University of Nairobi in 1987 and practised law in his Nairobi law firm for five years after qualifying for the bar at the Kenya School of Law. He was in the team of lawyers that successfully defended George Anyona, Njeru Kathangu, Ngotho Kariuki and Edward Oyugi against treason charges during the Daniel arap Moi era.

After the 1992 elections, Nderi joined the Swaziland prosecution service where he worked as crown counsel from 1993 to 1998. He was appointed Judge President of the Industrial Court of Swaziland in 1998 and served until March 2006.

Justice Nderi then returned home to head the Federation of Kenya Employers’ legal and industrial affairs division for a year before moving to Tanzania as the Principal Legal Counsel for the East African Community.

He worked at the East African Community between 2008 and July 2012 before returning home to be appointed judge in the new Employment and Labour Relations Court. Nderi was elected as the first Principal Judge of that court, a perch from where he was able to showcase his case management skills.

The judge, a Nairobi School alumnus, also obtained diplomas in business organisation and management and human resource management from the South African Institute of Management between 1994 and 1995, as well as a Master’s degree in law from the University of Stellenbosch in 2004.

The judgments he has supplied as part of his sample writing include an award of KSh6.9 million to a university employee who was denied permanent employment and salary increment once she tested positive for HIV. He has also supplied a dissent from a majority decision allowing unions to charge non-union members agency fees.

Judge Nderi has an aggregate of 31 years experience in the legal profession.

Back to: Kenya Chooses Its Next Chief Justice

 

Continue Reading

Profiles

Moni Wekesa: Double Doctor Offers Potpourri of Law and Sports Medicine

Wekesa’s attempt to join the Supreme Court will likely be checked by the fact that the region already has a judge from his ethnicity in the person of Smokin Wanjala.

Published

on

Moni Wekesa: Double Doctor Offers Potpourri of Law and Sports Medicine
Download PDFPrint Article

An independent investigation by World Rugby in March 2016 laid to rest allegations that there was systematic doping of Kenyan players through food supplements. The allegation first surfaced in a 2014 report prepared by a committee under the chairmanship of Prof. Moni Wekesa, 62, who has applied for the position of Chief Justice.

The Kenya Rugby Union has used the opportunity of Wekesa’s candidacy for the position of Chief Justice to lay bare what it saw as the anomalies that cast the country’s best internationally performing ball sport in an unseemly light.

Oduor Gangla, the chairman of the KRU, told the Judicial Service Commission in a letter that the Wekesa committee reached summary judgments and conclusions without giving senior coaches an opportunity to explain themselves, that it refused to follow procedure, instead preferring hearsay and innuendo, and that it treated the sport causally.

Gangla adds that the committee used laboratories that were not accredited by the World Anti-Doping Agency, and did not handle the samples and the testing professionally. Wekesa’s promotion of his report in the media despite its shortcomings, argues the rugby union, means that he is singularly unsuited for high judicial office.

Complaints notwithstanding, Wekesa wears his credentials on his sleeve – especially the two doctorates and his professorship in law. His pride in chairing the national task force on anti-doping between 2013 and 2014 is evident in the publicly available résumé on the Daystar University website. He credits his tenure with the subsequent enactment of the anti-doping law in 2016 and the creation of the Anti-Doping Agency of Kenya the same year.

Wekesa’s impressive sports resume includes chairing the disciplinary committee of the Football Kenya Federation and the Kenya Premier League Ltd. In 2005, the international audit firm KPMG recruited him as the chief executive officer of Kenya Football Federation in an effort to normalise soccer management in the country, but some members of the KFF board rejected his appointment and locked him out of office.

Wekesa has been in the thick of things in the anti-doping world, serving as a member of the integrity unit of the Disciplinary Tribunal of the International Association of Athletics Federations (IAAF). He served as vice-chair of the Bioethics Committee of the National Commission of Science, Technology and Innovation between 2012 and 2018 and was a sports medicine consultant for the national football, hockey and volleyball teams between 1990 and 1995. Wekesa was also Africa Doping Officer for the International Football Federation and Confederation of African Football. Wekesa still sits on the Anti-Doping Committee of the International Federation of Sports for Persons with Intellectual Disabilities, and is a director at the Anti-Doping Agency of Kenya.

After launching the law school at Mt Kenya University as dean in 2010, Wekesa was forcibly removed from the institution in 2016, and lodged a KSh58.1 million wrongful dismissal case in court. He moved on to Daystar University where he founded the School of Law as dean.

Wekesa earned a first class honours Bachelor of Education degree from the University of Nairobi in 1981 before going off to study sports medicine at master’s and doctorate levels in Cologne, Germany, in 1986 and 1989, respectively. He served as Deputy Dean of Faculty at the University of Botswana from 1996 to 1997, as departmental chair of Human Movement Science at the University of Namibia in 1998 and as regional manager of Special Olympics International in charge of Africa between 1999 and 2001.

After reaching the pinnacle of academic achievement in sports medicine, Wekesa taught the discipline at Kenyatta University, University of Botswana, and University of Namibia before switching lanes to law. He earned a bachelor’s degree from the University of Nairobi in 2002, followed by a diploma in legal practice from the Kenya School of Law in 2003. He enrolled for a master’s degree in law, writing a thesis on legal issues in technology transfer in doping control in sports, which he was awarded in 2005. He earned a doctoral degree in law from the University of Nairobi by writing his thesis on the regulation of doping in sports in Kenya.

Wekesa has been an itinerant law lecturer at the Catholic University of Eastern Africa and at the Kigali Independent Universit in, Rwanda, as well as at the Lusaka University School of Law.

Wekesa’s consultancy portfolio includes Special Olympics Inc., formulating the Regulations for the Sports Registrar, drafting the Anti-Doping Bill, Policy and Rules for the Ministry of Sports, drafting the amendment law and regulations for the Kenya Nutritionists and Dieticians Institute, and writing regulations for the Kenya Academy of Sports and Sports Kenya among others.

Although he has no judicial experience, he has practised law since his admission to the roll of advocates in 2003 and has written on intellectual property, sports and elections. As part of his sample writings Wekesa has submitted a self-published book, two articles in refereed journals and submissions to obtain a student admission to the Kenya School of Law.

Wekesa indicates that he has been teaching Sunday school since 1976, and additionally claims his work as honorary legal counsel for the East African Universities Sports Federation since 2003, as founding council member of Friends University, Kaimosi, and as member of the council of Pwani University since 2017, as part of his community service.

Born in Kakamega County, Wekesa’s attempt to join the Supreme Court will likely be checked by the fact that the region already has a judge from his ethnicity in the person of Smokin Wanjala.

Back to: Kenya Chooses Its Next Chief Justice

 

Continue Reading

Trending