Chief Justice Martha Koome and public interest litigant Enock Joseph Aura who has threatened to sue the CJ if his demands are not implemented within seven days.


An activist has written to Chief Justice Martha Koome over the failure to resume open court sessions despite things going back to normal unlike the COVID-19 period.

Enock Joseph Aura says in a letter to the Chief Justice the use of internet is making Kenyans and court users incur more costs to access court services.

He says this is despite the fact that the Judiciary being allocated humongous amounts of tax payers’ monies to maintain courthouses, which are largely empty across the country.

Through lawyer Harrison Kinyanjui, Aura wonders why money should still be allocated for court houses yet maintain the restrictions.

If that is the case, the activist says it would have been more expedient to order the closure of all Court houses in Kenya, to save our meager taxes that is now going to waste, and resolve cases through the internet.

“Why maintain the oppressive mongrel system of accession justice now in place? You unilaterally published a pamphlet in the Kenya Gazette No. 189 on January 11, 2023 (identified as: Practice Directions on standardization of Practice & Procedures in the High Court 2021) were to adopt the total ban of in person Court sessions, it would clearly attract legal sanction,” says Aura

Aura faults the CJ for gazeting the directions without involving the public.

“Being the Chief Justice of Kenya, and in spite of your clear apprehension of identifying the grave imperatives of the National Values and Principles of Governance under Article 10(2)(a) of the Constitution of Kenya, as read with by Article 232(1) of the Constitution of Kenya, you have violated those imperatives,” says Aura through lawyer Kinyanjui.

He adds that Kenyans have neither been consulted, nor have they had their concerns considered in relation to the directives that have effectively trampled on their rights to have a say and participate in the decisions implicating the provision of Judicial services.

He says in the Preamble of the Directives, the CJ quoted the Legal and Constitutional bases for incepting them.

“Hence, as the Chief Justice, it is clear that you intended to imbue with the force of law your stated publication in the Kenya Gazette No. 189 now accosted with the guillotine of being incepted contrary to the relevant Legislation governing the creation of Subsidiary Legislation,” the letter reads.

Aura adds that Article 94(5) of the Constitution of Kenya deprives anyone (including the CJ) the power and authority to enact/incept provisions having the force of law in Kenya, except Parliament.

The said Article states as follows: “No person or body, other than Parliament, has the power to make provision having the force of law in Kenya except under authority conferred by this Constitution or by legislation.”

“It is true that you have been delegated with the responsibility of creating Subsidiary Legislation by dint of several Statues implicating the Judiciary, but that power certainly does not accord you the leeway or authority to create those Bylaws outside the ambit of, and contrary to the procedures prescribed in, and through the Statutory Instruments Act in Kenya,” states the letter.

Consequently, Kinyanjui added, it is breach of Article 94(5) of the Constitution of Kenya for the Chief Justice of Kenya to issue such directives, without involving Parliament.

“According to the imperatives of Section 5(3) of the Statutory Instruments Act, you were required (in mandatory terms) to consult with Kenyans from all walks of life and in a transparent manner, before incepting into the public domain your impugned publication, and manifestly, the High Court would be entitled to quash your impugned Directives which we notify you we shall seek in default of your annulling them as herein demanded,” he says in the letter.

Aura claims that since the Constitution of Kenya was promulgated on August 27, 2010, the Judiciary has shirked every effort to involve Kenyans in the process of creating its policies, overall vision, and direction for the lawful provision of Judicial services to Kenyans.

“and although these services are neither free or charitable, the Judiciary has never cared to involve Kenyans in any or any meaningful public participation,” reads the letter.

He said peviously, the in-person Court sessions were closed to the public on the bases of the ” Covid 19″ World Bank Project, but Justice Koome has constructively closed the courts when she directed online hearings to continue.

He adds that the monopoly currently enjoyed by the Judiciary in the provision of court services is neither a valid excuse, nor a valid reason to impose the egregious policies it has devised under your watch, which are against the interests of a large proportion of Kenyans.

“Why focus and be fixated with extinguishing all in person access to the Courthouses as you have now ordered, except to entrench administrative oppression rendering injustice, and to set conditions for the use of Judicial Services which has in the result made it increasingly difficult for an ordinary person in Kenya to receive Court services without such into imposing and costly restrictions ? Aura posed the question to CJ.

He said the resumption of normalcy of in person services across the spectrum of social endeavors in almost all sectors of the Kenyan society (and the array of social and economic life of Kenyans in general) manifestly therefore the CJ’s order to restrict access to in-person Court services to the public in Kenya is without factual or legal justification.

“Our Client’s additional complaint is that to date, all cases in Kenyan Courts are recorded via the colonial language (English) and whenever any litigant elects to answer criminal charges or testify in Court through the Kiswahili language, invariably Magistrates or Judges at all levels of the Courts in Kenya (and without the consent of the accused or the pleader in a case) unilaterally assume the position of an interpreter to translate, and copy directly into English the evidence given in Court through the Kiswahili language,” he adds.

He says Kenyan in such circumstances is ultimately denied a record of the accurate evidence he gives directly in testimony before the Court in Kiswahili language (and not the evidence recorded as a translated version by, and of the Magistrate or Judge then recorded in English).

Aura says this is a violation of Article 50(5)(b) of the Constitution Kenya which that “(5) An accused person charged with an offence, other than an offence that the court may try by summary procedures, is entitled during the trial to a copy of the record of the proceedings of the trial on request and has the right to a copy of the record of the proceedings within a reasonable period after they are concluded, in return for a reasonable fee as prescribed by law.

Additionally, and despite the imperatives of Article 35(1)(b) of the Constitution of Kenya to affirming the right of every Kenyan to receive such of the officially-held information about them and especially where such information implicates their Constitutional rights, currently the litigant in the Magistrates Court Criminal Division does not receive information through any Notice or Cause List even through the official Court Website (Kenya Law Reports).

“It is imperative to notify litigants in the Kiswahili Language in Notifications outside the respective Court houses, in order to enable the ordinary Kenyan citizens involved in such cases to obtain complete, accurate and timely information regarding the listing of their cases and the manner of the disposal or order of their Cases, hence ensuring transparency and the facilitating of easy access to Judicial Services for Kenyans across the country,” says Aura on his demand letter.

Tragically, an African in Kenya in the era of the year 2023 has to employ the use of the Colonial language (English) as the lingual instrument of resolving his legal disputes in the High Court, the Court of Appeal, and also the Supreme Court in Kenya, his use of Kiswahili language being unfairly subsumed and submerged under the deluge of English, and his Court proceedings never associated with the Kiswahili language thereafter.

He adds that Kiswahili and English is Kenya National language.

In the demand letter, he told the Chief if his demands are not implemented with seven days, he will petition the High constitutional court.

Nairobi Times, Your Story, Our Story. Nairobi Times owes its existence to apposite journalism of truth, accuracy, objectivity and balanced presentation of stories in a credible and honest way. Nairobi Times practices real journalism of the real story, told in a real way by a real journalist. contact us via ©