Whether or not he is appointed to the position of Chief Justice, for which he has applied, Justice Amraphael Mbogholi Msagha has already derived a personal benefit from the new Constitution.
On October 8, 2010, he was elected by the judges of the High Court to the position of principal judge, a post created by the new Constitution.
The principal judge is the head of the High Court.
The principal judge is the head of the High Court.
The new Constitution also establishes equivalent leadership
in the Court of Appeal, whose head is called the president of the court and is also elected by the members of the court. Justice Riaga Omolo, who has also applied to be Chief Justice, has been elected to this position.
in the Court of Appeal, whose head is called the president of the court and is also elected by the members of the court. Justice Riaga Omolo, who has also applied to be Chief Justice, has been elected to this position.
A feature of the new Constitution is that it re-distributes judicial power which, under the previous constitution, was concentrated in the Chief Justice.
Under the old law, the Chief Justice was the administrative head of the Judiciary, the head of the Judicial Service Commission, and a judge of both the High Court and the Court of Appeal.
The new Constitution disperses these roles, first by removing the Chief Justice from the High Court and confining him or her to only one court, the Supreme Court, over which he or she presides.
It also creates the position of Deputy Chief Justice, which is the subject of competitive filling at the moment.
Thirdly, as seen, the Constitution creates the positions of president of the Court of Appeal and principal judge of the High Court.
The Chief Justice will no longer exercise judicial power over these courts. Any administrative power that he may retain over the two courts will have to be shared with their respective heads, including Justice Msagha.
The position of principal judge is, therefore, a position of real power. For example, he will be responsible for the deployment of judges of the High Court, a role that the Chief Justice has previously played.
He may decide, as part of this new role, to abolish or re-organise the divisions of the High Court, previously the responsibility of the Chief Justice, and he will also be solely responsible for the day-to-day management of the affairs of the High Court.
Justice Msagha attended the University of Dar es Salaam in Tanzania, where he earned a law degree in 1976. Upon his admission as an advocate in 1978, he went into private practice in Mombasa.
He served as member of the Rent Restriction Tribunal and of the Municipality of Mombasa Valuation Court.
He was appointed Judge of the High Court in 1987, and has served in various stations in the country.
While in the Judiciary, he has undertaken various duties. He is currently the presiding judge in the Land and Environmental Law Division and the chairman of the board of trustees of the Judicial Service Staff Pension Scheme.
He also served as a member of the sub-committee of the Judicial Service Commission to recruit district magistrates and conduct interviews for the promotion of magistrates.
In addition, he has headed the Criminal Division, the Family Division, Kenya School of Law and the University of Nairobi’s Faculty of Law.
Outside of his judicial work, Justice Msagha chaired the Commission of Inquiry into the Mtongwe Ferry disaster in 1994. This was Kenya’s largest marine accident in which 257 passengers aboard the MV Mtongwe drowned after it had capsized.
The commission’s report was generally well received. It established that the accident had been caused by overloading associated with poor distribution of passengers on board the ferry.
Justice Msagha is regarded as a lawyer’s judge, one who easily sees the point of view of the legal practitioner and provides for it in the manner in which he runs his court. This may be the result of the fact that he came from private practice himself.
He is unfailingly courteous, has a down to earth personality and is friendly.
However, Justice Msagha’s career as a judge suffered a body blow when he was named in the list of judges and magistrates that, in the view of the Ringera committee, had been involved in corruption and who would be required to resign as part of the purge on the Judiciary that was instituted by the Narc government.
Justice Msagha is one of the five judges that chose to fight back, refusing to resign and opting to face a tribunal that was appointed by the President.
Not all those that chose the tribunal survived. It is a credit to Justice Msagha that he was one of the few judges that were reprieved.
In a long judicial career, Justice Msagha has been involved in many cases, including an application by Mr Mwai Kibaki who had challenged the election of then president Moi in 1997, to call Mr Moi to be examined as a witness regarding the service of the election petition papers.
The court declined the request to call Mr Moi for cross examination, saying that no proper basis had been made for the application.
The decision, in the late 1980s, by Kenya Airways, at the time running massive financial losses, to cut down its costs by reducing staff led to one of the biggest cases on the rights of workers. Justice Msagha decided the case in the High Court.
At the time, Kenya Airways had 4,000 employees, and its losses were attributable to the large wage bill. A decision was made to lay off 1,800 workers by 1990, as part of the austerity measures to bring the airline to profitability.
More than 900 of these workers filed suit in the High Court, challenging the decision to declare them redundant. Their challenge was that the redundancy had been done outside of the law governing employment. They sought more than Sh2. 5 billion as compensation for loss of service, severance pay, and pay in lieu of notice.
After a long trial, characterised by procedural bottlenecks, the suit was heard by Justice Msagha, who found in his judgment that the “redundancy was not only misplaced but illegal”.
He then ordered that each employee be paid, in addition to the amount that the airline had already voluntarily paid them, compensation equivalent to the remainder of the term of service with the airline, based on the retirement age, together with interest and costs.
His approach was that where the law was inadequate or the provisions of the collective bargaining agreement were wanting, the court should step in to fill the void.
The airline, however, appealed the decision and the Court of Appeal reversed the ruling in 2007.
Despite this, Justice Msagha can take pride in his judgment. Through it, the judge tried, using tools that were poorly fashioned for the job, and unsuccessfully in the end, to respond to an obvious injustice resulting from the mass loss of employment in a country where workers’ rights are poorly protected.
In December 2000, Justice Msagha presided over a bench of the High Court in the Gachiengo case, which led to the disbandment of the Kenya Anti-Corruption Authority (KACA). The other judges on the bench were Kassanga Mulwa and J K Mitey.
Mr Stephen Gachiengo, who had been charged with a criminal offence related to corruption, challenged his prosecution, instituted by the KACA, then led by Justice Aaron Ringera, on the ground that it had no power to prosecute.
He argued that under the Constitution, only the Attorney General could prosecute criminal cases. He also challenged the appointment of Mr Ringera as director of KACA on the ground that he could hold this position while a judge of the High Court.
The High Court found in favour of Mr Gachiengo on both scores, declaring that KACA, as then established, was an illegal entity because it encroached on the exclusive power of the Attorney General to prosecute offences, and, secondly, that the police commissioner enjoyed a constitutional monopoly to investigate offences.
This decision led to the disbandment of KACA, and the eventual setting up of the Kenya Anti Corruption Commission (KACC) in its place.
There were several problems with this decision. First, the finding that the Attorney General enjoyed a constitutionally protected monopoly over criminal prosecutions was erroneous and lacked legal foundation.
Section 26 of the former Constitution, on which this finding was based, contained express provisions recognising other prosecutors. It provided, for example, that the Attorney General had the power to “take over at any stage” criminal proceedings pending before a court of prosecution pending in court “that has been instituted or undertaken by another person or authority”.
Secondly, the Constitution vested the Attorney General with the power to terminate at any stage before judgment, criminal proceedings whether these had been commenced by him “or another person or authority”.
It also recognised that proceedings commenced by another person or authority may be withdrawn by such person or authority with the leave of the court, unlike the Attorney General who did not have to seek leave to withdraw proceedings before the court. Again, this provision would not exist unless, in the first place, other persons or authorities were capable of bringing such proceedings.
Fourth, while the court established that the Attorney General was the sole prosecutor of criminal cases, the constitutional provisions in issue had restricted his role to civilian courts. This meant that in military courts, only a prosecutor other than the Attorney General was competent to prosecute. The existence of other prosecutors was therefore implied.
In addition, the court failed to articulate the general effect of its findings in the Gachiengo case. For example, the court knew that ordinary statutes confer authority on persons other than the Attorney General to prosecute those offences.
A wide range of powers are conferred on government departments, statutory boards and individual functionaries in this regard. KACA, as set up under the Prevention of Corruption Act, was merely one such statutory board.
For reasons that the court did not explain, the Gachiengo case singled out KACA for special treatment that was inconsistent with existing legislation and practice. It declared its powers illegal but did not show how this declaration affected similar powers conferred on other statutory boards and government departments through existing legislation.
Through the Attorney General, the government responded to the judgment by stating that in deference, it would amend the law to bring the KACA’s operations within the limits set by the court.
At the same time, however, the government defied the High Court in so far as its other departments and statutory boards, which were in exactly the same position as KACA was before the judgment, continued to conduct criminal proceedings which KACA could now not.
In effect, therefore, two sets of legal standards were created by the Gachiengo case: one set exclusively applicable to KACA, and another for the other statutory boards and government departments.
A look through his judgments shows that Justice Msagha has had a very measured approach in his work, with none of his decisions standing out, whether for special praise or concern.
The Gachiengo case is an exception. Justice Msagha was the presiding judge on the bench and may have had a chance to exercise moderation in the manner in which it carried out its business.
Justice Msagha is the longest servicing judge of the High Court. His experience is an asset in deciding on his application to be the next Chief Justice.
Other than the Gachiengo case, he has made few decisions with which there would be much controversy. This may be regarded as a double-edged sword, on the one hand portraying the judge as having made a career of avoiding making difficult decisions, and, on the other, as having made correct decisions all his judicial life.
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