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From bench to bar: Ex-judges in new territory as lawyers

by kenya-tribune

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It is a classic case of the shoe being on the other foot for lawyers who moved from the bench to the bar. Once revered and addressed as “My Lord or Your Lordship” in their heyday, it is now their turn to fight for their clients as lawyers sitting on the opposite side.

This is the situation former judges, who either retired or simply opted to go into private practice, face in the corridors of justice.

They no longer have influence on the cases they handle for their clients, as the ultimate authority remains with the judge presiding over the case. Like other advocates, the former judges have to argue their cases to the satisfaction of the judge or the magistrate seized with the matter.

This scenario was clearly witnessed in the ongoing murder case of Migori Governor Okoth Obado when the lead counsel, retired judge Nicholas Ombija, pleaded with his former colleague in the criminal division justice Jessie Lessit to grant his client bail, an application she declined.

Some of the retired judges now in active practice are also forced to eat humble pie and appear before lowly magistrates, some of them young enough to be their daughters to argue their cases.

But turn the clock back, the same judges used to hear appeals flowing from the magistrates and would either uphold or overturn them altogether for various legal reasons.

A number of judges who leave the bench opt to retire quietly and are easily forgotten but those who are lucky enough, or ambitious, get public appointments.

Only a few feel they still have the energy to practise as lawyers and now face their former colleagues on the opposite side.

They include former Court of Appeal judges Richard Otieno Kwach and AB Shah and former High Court judges Ombija, Johnson Mitei and Muga Apondi.

Besides representing Mr Obado in the case of the gruesome murder of university student Sharon Otieno, Mr Ombija is also handling other civil and criminal matters in various courts across the country.

The retired judge is remembered for issuing a warrant in November 2011 requiring President Kibaki’s government to arrest and hand over Sudan leader Omar al-Bashir to the International Criminal Court (ICC) should he set foot in Kenya.

Al-Bashir had been invited to the promulgation of the 2010 Constitution but the International Commission of Jurists (ICJ) sued the government and was granted the orders to have the Sudanese leader arrested upon setting foot in the country.

The Court of Appeal upheld the decision, saying Kenya acted in utter impunity for failing to arrest al-Bashir.

In 2011, Mr Ombija, still serving as High Court judge, applied to be the Director of Public Prosecutions but lost the bid to current Environment Cabinet Secretary Keriako Tobiko.

Before he retired, Mr Ombija was a household name as a celebrated criminal judge. He jailed a beautician accused of killing her husband, Mr Moses Mbaabu Gituma, a senior Central Bank of Kenya official on October 23, 2009 at their residence in Nairobi’s Garden Estate.

Mr Ombija described Mrs Janet Karamana as a “cunning woman past man’s wits, cold-blooded and a schemer par excellence”. He sentenced her to 30 years in prison and on appeal, the sentence was enhanced to life imprisonment.

Mr Ombija also sentenced to death nine prison warders for the killing of six inmates at King’ong’o Prison in Nyeri in 2000. Some of the former warders appealed and were released.

He was described by the Judges and Magistrates Vetting Board as a judge who demonstrated a tenacious independence of mind.

Justice Muga Apondi rose to prominence when he handled the case of Lord Delamere’s son Tom Cholmondeley, whom he found guilty of killing stonemason Robert Njoya. Mr Apondi, however, reduced the murder case to a lower charge of manslaughter and jailed Cholmondeley for eight months. The sentence caused uproar with protests that justice in Kenya favoured the rich.

But the lawyer who served as presiding judge in various stations, including Nakuru, later went back to his legal practice without much ado. Mr Apondi said he is happy that many judges he has appeared before have been courteous towards him.

He said that whenever there are many advocates before a judge, judges would give priority to seniority. If there are senior counsels in the same court, he said, they would be heard first alongside former judges.

Former Deputy Chief Justice Nancy Baraza, who acted for the Independent Electoral and Boundaries Commission (IEBC) in several matters in the just concluded election petitions, said she has settled down as an advocate.

“I think it has been a good experience. I am happy they treat me with dignity,” she told the Sunday Nation.

Asked whether her presence intimidates the judges given her past position, Ms Baraza said, “Not at all. The court should never feel frightened or influenced by anybody. When I appear in court, I go there to represent a client.”

But the former DCJ complained about too many adjournments and cases taking long to be concluded.

Ms Baraza observed that having tested both the bench and the bar, she now understands better what judges want in a case. “I don’t make long arguments. I go straight to the point instead of wasting too much time,” she explained.

During his stint at the bench, Justice Mitei is remembered for sending to prison former powerful Nairobi Town Clerk Zipporah Wandera and other senior City Hall officials for contempt of court.

But as advocate, he was criticised for defending Mr Edward Kirui, a former police officer accused of killing two demonstrators in Kisumu’s Kondele area at the height of the 2007/08 post-election violence. Mr Kirui was acquitted on the first count, of killing Mr William Onyango, for lack of evidence.

In his heyday as an appellate judge, Mr Kwach was articulate and a no-nonsense man. A lawyer would not appear before him unprepared. Young advocates dreaded appearing before him fearing to be embarrassed. He had earlier made his name when he successfully represented the Umira Kager clan for the right to bury celebrated criminal lawyer SM Otieno, who died in 1986, in his ancestral home in Nyalgunga.

But when he retired from the Judiciary following the judicial purge in 2003, Mr Kwach took up private practice and is now involved more in arbitration. In 2008, he appeared for the former Kiambu Governor William Kabogo who had then challenged the election of the late George Thuo. The election of Mr Thuo, then Juja MP, was later nullified.

Former Court of Appeal judge AB Shah also retreated to practice and among the cases he has handled was a dispute between retired President Daniel Moi and prominent farmer Malcolm Bell over a 100-acre land.

Mr Shah represented Mr Moi, who won an appeal to keep the 100-acre Kabarak University farm after the Supreme Court ruled that it had the powers to handle the land dispute. Mr Moi had asked the court to put on hold an order by the Appeal Court, which required him to leave the farm within six months.

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