BY SAM ALFAN.
A city lawyer caused a stir at the High Court on Tuesday as he demanded the proceedings in a petition he has filed be conducted in Kiswahili language.
Lawyer Harrison Kinyanjui demanded the hearing of the case be conducted in Kiswahili, one of the official languages since he has drafted the petition using the language.
The lawyer who is acting for businessman Enock Joseph Aura told Justice Lawrence Mugambi that the proceedings should also be recorded in the same language.
The lawyer made the protestations after Justice Mugambi started addressing the parties in the English language yet his petition by Aura is fully expressed in the Kiswahili language.
The Judge insisted that he was unable to conduct the proceedings in the Kiswahili language as sought by Aura, and he adjourned the case to 19th July 2023 for the Court to secure the services of a translator.
Lawyer Kinyanjui insisted that the adjournment was equally unwarranted as the Judge ought to be proficient in the Kiswahili language, and that the Advocates of the Chief Justice and the Attorney General had trivialized the proceedings to the point of laughing in Court.
Lawyer Kinyanjui told Judge Mugambi that Aura had properly invoked Article 7 of the Constitution of Kenya as well as Section 34(1) of the High Court (Organization and Administration) Act as read with Section 39(3)of the same Act, which recognized the languages of the High Court as Kiswahili and English.
“Article 7(2) of the Constitution of Kenya designates Kiswahili and English as the official languages in Kenya,” submitted lawyer Kinyanjui.
This was met with opposition from both Justice Mugambi and lawyers representing the Attorney General Justin Muturi and the Chief Justice Martha Koome, addressed the court in English.
Kinyanjui declined to accept addresses in the English language, and insisted that the Court ought not to record anything said by the AG and the CJ in English language since such an act was in itself a violation of the petitioner’s rights to be treated with dignity, having elected to file his case in the Kiswahili language.
The State Counsel, a Ms Mutindi informed the Court that the Attorney General had raised a preliminary objection to the drafting of the Constitutional Petition in the Kiswahili language as Section 83(2) of the Civil Procedure Rules did not permit it.
But Kinyanjui stated in filing the documents in English language, the AG was in violation of Article 7 of the Constitution of Kenya, which was supreme to all other laws as Aura petitioned the court in Kiswahili language.
The Judge continued his address in English language, infuriating Kinyanjui who demanded Justice Mugambi to recuse himself from the case if he was unwilling, or unable to express himself in the Kiswahili language, and hand it over to any other Judge who was proficient in the Kiswahili language.
The petition by Aura is the first constitutional case in the country to be fully drafted in the Kiswahili language.
The Swahili petition seeks various orders that have far reaching implications on the judiciary and public service in Kenya if allowed by the court.
Aura insists that the Chief Justice has broken the law in enacting Regulations that bar Advocates and litigants from conducting their cases physically in the Courts across Kenya, and that she violated the Statutory Instruments Act by making up rules that demand only online Court sessions, without any form of public participation.
The Advocate for the Chief Justice also addressed the Court in the English language and supported the position taken by the Attorney General.
Justice Mugambi insisted that he was unable to conduct the proceedings in the Kiswahili language as sought by the Petitioner and attempted to have the file referred to the presiding judge in the division for re-allocation to a new judge.
But Petitioner’s lawyer Kinyanjui protested the move insisting that 77 days after the Petitioner had filed the case in Court, no action had been taken to move the case forward.
He insisted that the move by the court was equally unwarranted as the Judge ought to be proficient in the Kiswahili language, and that the Advocates of the Chief Justice and the Attorney General had trivialized the proceedings to the point of laughing in Court.
Aura insists that the Chief Justice has broken the law in enacting Regulations that bar Advocates and litigants from conducting their cases physically in the Courts across Kenya, and that she violated the Statutory Instruments Act by making up rules that demand only online Court sessions, without any form of public participation.
The judge however adjourned the case to July 19, 2023 for the Deputy Registrar to secure the services of a translator in the case.
In the landmark move, Judiciary received the first ever petition drafted in Kiswahili, which is one of the country’s official languages on April.
The petition filed by Aura is challenging the move by the courts to hear and determine cases online, otherwise known as virtual proceedings.
The businessman has sued Chief Justice Martha Koome, Attorney General Justin Muturi, Kenya Law Reform Commission, Law Society of Kenya and the Judicial Service Commission (JSC).
Aura wants the immediate lifting of what he terms as irrational directive issued by the Chief Justice barring in person litigation.
The online hearings was introduced at the height of COVID-19 as one of the containment measures to curb the spread of the virus.
Aura also wants Rule 8 of the Supreme Court Rules of 2020 declared unconstitutional because it only recognizes English as the language of the Court yet Article 7(2) of the Constitution states that both English and Kiswahili are official languages.
He claims that anyone filing a case in Kiswahili will be barred from litigating before the Supreme Court under that rule and that why he is seeking the Court to declare is in violation of Article 10(2)(a) of the Constitution.
