Can an employee be sacked without being given a genuine chance by way of a notice and a hearing?

When Kevin Isika Mule was HFC’s director of credit risk on a monthly salary of Sh1.16 million, he approached two of the senior-most directors at Housing Finance with information of undisclosed bad loans amounting to Sh4.3 billion. Shortly after that, he was fired. He successfully sued the employer and the High Court awarded him Sh8.9 million as compensation for unlawful termination. 

In reaching the final award, Justice Ongaya said he had considered Mr Isika’s whistle-blowing and how it turned against the former HFC employee.

“The court has considered the claimant’s unchallenged lamentations about the respondent’s non-compliance with statutory and regulatory provisions as reported by him to the respondent’s management, leading to his predicament, and which factor aggravates the respondent’s action to dismiss the claimant,” the judge ruled. Mr Isika had in the course of 2015 and 2016 revealed to HF Group managing director Frank Ireri and HFC managing director Sam Waweru that the latter risked losing Sh4.3 billion in bad loans, some of which had been issued irregularly.

On Friday June 17, 2016, Mr Isika was asked to meet his boss Mr Waweru at the Serena Hotel at 6pm. He naturally thought that the meeting would outline the next course of action in the wake of the revelations over the bad loans.

But at the meeting, Mr Waweru handed him a notice to show cause why he should not be fired for failing to apologise for grievances raised by debt management staff, failure to hire a valuer as instructed by Mr Ireri a year earlier and reporting to work late and leaving early without permission.

He was also accused of absenteeism. Mr Isika was also ordered to respond to the letter by the following Monday at 8.30am. The only problem was that he had already been locked out of the HFC system.

On deadline day, the banker again tried to complete his response and submit it but was still locked out of the system so he decided to go to the lender’s headquarters and deliver it in person.

His access card had also been deactivated and rumours were already flying that he was on interdiction. On arrival, Mr Isika found his office locked and it had been ransacked. He was met by two human resource department officers who had scheduled a disciplinary hearing for noon the same day. A new charge had also been introduced — failing to respond to the show cause letter within the prescribed timeline. After failing to convince the HFC board of his predicament, Mr Isika sued the lender and claimed he had been sacked on June 20, 2016, but had not been given a termination letter.

Mr Isika claims to have received the termination letter in December, half a year later, but HFC insisted that it sent the letter on June 21, 2016, via email and post.

In court, HFC accused Mr Isika of forum shopping. The mortgage lender argued that Mr Isika could not sue because he still had a pending appeal before the HFC board hence the suit was an abuse of the court process.

HFC said Mr Isika was sacked on June 21, 2016, after failing to respond to the show-cause letter and ignoring the disciplinary hearing.

Justice Ongaya held that HFC’s action could not be considered to be a constructive termination. He ruled that HFC acted unfairly by not giving Mr Isika a genuine chance to respond to his charges.

“The court finds that taking into account the magnitude of the allegations in the show-cause notice, the claimant was entitled to lament that the weekend allowed to reply was not sufficient.

“When Monday, June 20, 2016, came, the invitation for hearing was made and the claimant was not given ample time to prepare and to attend. There was no room provided in the invitation for the claimant to attend with a colleague of his choice as per section 41 of the Employment Act, 2007.

“The court holds that an employer should offer an employee a genuine chance by way of a notice and a hearing as per section 41 of the Act, failing which it cannot be presumed that the employee is culpable of the allegations for which no such genuine opportunity was provided. The termination was unfair in substance and procedure and the court finds accordingly,” Justice Ongaya held.

The judge held that Mr Isika was entitled to six months’ pay of Sh6.82 million and one month’s salary in lieu of notice (of termination).

Is a Child born by a widow more than nine months after the husband’s death entitled to inherit the deceased’s property?

Children born by a widow more than nine months after the husband’s death are not entitled to inherit a share of the deceased’s property, the High Court has ruled.

Justice Lucy Gitari has held that a child born posthumously to a widow not less than nine months upon the death of the husband ought to be excluded in succession.

Such a child, the judge said, cannot be regarded as having survived the deceased according to Section 29 of the Law of Succession Act, Cap 160.

The judge also stated that such children cannot be regarded as dependants of the deceased’s estate because the deceased had not taken them as his own and was not maintaining them before he passed away.

INHERITANCE DISPUTE

She made the decision while ruling on a succession dispute between a woman, Ms Milka Wanjiku, and her step-mother, Ms Rose Wangechi. The two were fighting over distribution of the estate of Wandimu Munyi who died in 1985. He was father to Ms Wanjiku and husband to Ms Wangechi.In the case, Ms Wangechi wanted three other children that she bore after the husband’s death be listed as beneficiaries of the deceased’s estate which included a 22-acre land in Mwea.

Also in contention was an undisclosed amount of money given by the National Irrigation Board for a three-acre land acquired for construction of Thiba dam.

Ms Wanjiku testified that the Wandimu two wives — her dead mother Agnes Muthoni (first wife) and Ms Wangechi (second wife).

The court heard that Wandimu had three children with the first wife and only one child with Ms Wangechi.

POSTHUMOUS CHILDREN

After his death, the second wife bore four other children — three daughters and one son — between 1988 and 2008, who she wanted to inherit Wandimu’s estate.

But the step-daughter confronted the court with the question of whether children born posthumously are entitled to inherit her father’s estate.

Ms Wangechi said she wanted all the eight children to share the land equally since they were born and lived on the same land.

But in her ruling, Justice Gitari ordered that the deceased’s estate be shared in five portions among the four children he had sired in his lifetime and Ms Wangechi, the widow.

“The (other) four children are excluded as beneficiaries. The distribution should be in accordance with the number of children. The widow is an additional unit,” said the judge adding that her decision on distribution of the estate is according to Section 40 of the Law of Succession Act.

Justice Gitari also ordered that the land be surveyed to ensure that each beneficiary’s portion has access to the water canal.

She also said the money for compensation from NIB shall be shared equally by the beneficiaries.

Equity bank bought student's song for a song

A university student who claims to have composed a popular song used by Equity Bank to promote its business has gone to court over a Sh10 million pledge, among other constitutional and fundamental reliefs.

Eric Obiero Nyadida, who was prosecuted at the instigation of the lender for forgery alongside his brother Geoffrey Nyadida Odongo then acquitted in October 2017 for lack of evidence, has urged the High Court to prohibit the bank from using the song to advertise its Wings to Fly education sponsorship project for bright but needy children.

LEGAL RIGHTS

Testifying before Justice Wilfrida Okwany, Mr Obiero said his rights were violated when he was locked up in a police cell with adults when he was 16.

He says he was denied his legal rights and access to his parents while in detention at Kileleshwa Police Station.

Mr Obiero, who is pursuing a Journalism course at a private university, told Justice Okwany over the last six years he has suffered mental anguish and violation of his property rights.


He said he was dragged through a criminal trial because he asked the bank to pay him Sh10 million as promised by senior officials of Equity Bank (Kenya) Limited and Equity Group Foundation (EGF) for using his song.

The petitioner says the lender has continued to use his work with no direct benefit going to him.

He is now asking the High Court to issue a conservatory order restraining EBL and EG) from using his piece of music in any of its advertisements on the internet, television, radio or any other media to popularise its EGF Wings to Fly project pending the determination of the suit.

Mr Obiero is also seeking costs of the case. Hearing continues.

Can settling an hospital bill count in inheritance?

A man’s bid to have a stake in his dead sister’s estate on account of having paid her medical bills has been thwarted by the High Court in Murang’a.

Mr Julius Kiruma failed to prove to the court his claim for half of his sister’s piece of land on grounds of the money he spent to settle her hospital bills.

He told the High Court that he contributed Sh214,000 towards the medical needs and upkeep for Hannah Wanjiru.

EXPENSES

Mr Kiruma even produced a list of the expenditure.

The court was told that Mr Kiruma also built a house for his sister and that the expenses were converted to two acres.

Mr Kiruma said he bought the four-acres jointly with his brother Mwangi Ruhohi and “I am therefore entitled to half the share”.

His claim was backed by two Wanjiru’s children – Gladys Waigumo and Mary Wanjiku – who said there was an agreement to the effect that their uncle’s expenditure would be returned with half of the land in question.

Ms Wanjiku said Wanjiru had called all her children and informed them about it.

To protect his interests, Mr Kiruma placed a restriction against the land in October 2016 because he also wanted to be an administrator of his sister’s estate.

However, a lawyer advised that one of Wanjiru’s daughter named Esther Wangari be instead appointed the administrator.

Ms Wangari filed the case seeking the removal of the restriction by Mr her uncle against developing or transferring the land.

She told the court that the restriction had no legal grounds and that the land had been sold to Mr Ruhohi by her mother.

The restriction by Mr Kiruma prevented the transfer of the property to Mr Ruhohi.

Ms Wangari said she had instructions from her mother to effect the transfer of the land to Mr Ruhohi because he had paid for it fully.

On seeking to obtain the consent of the Land Control Board to transfer the ownership of the plot, the process was halted because of the restriction, Ms Wangari said.

She admitted that Mr Ruhohi and Mr Kiruma are her uncles, but added that the latter should not have any interest in the land because Wangari had refunded his Sh400,000 before her death.

APPROPRIATE REGISTER

The court dismissed Mr Kiruma’s claim, saying there was no contract between him and Wangari on settling the medical bills.

“The defendant has not shown any evidence of a written contract as provided in law to support his claim of buying half the share of the land. He did not file any counterclaim in furtherance of his defence that he is a purchaser. His claim is unsupported,” the court said.

The law provides that the Lands Registrar can place a restriction against a plot in order to prevent fraud, improper dealings or for any other sufficient cause.

The registrar may place the restriction either with or without the application of any person interested in the land, lease or charge.

According to Section 76 of the Act, the restriction may be expressed to endure for a particular period of time, until the occurrence of a specific event or when another directive is made.

The registrar may prohibit or restrict all dealings or those that do not comply with specified conditions, and the restriction should be registered in the appropriate roll.

In the Murang’a family case, the High Court ruled that the restriction was unjustified as Mr Kiruma failed to prove his claim on his sister’s four-acre piece of land.

The High Court ordered the Lands Registrar to have it removed immediately.

Karua loses to Waiguru on a technicality

The Supreme Court has dismissed a petition by Narc Kenya leader Martha Karua, challenging the election of Anne Waiguru as Kirinyaga governor.

Karua had moved to the Supreme Court after losing at the High Court and Court of Appeal where the case had been dismissed.

The ruling, read by  Justice Lenaola on behalf of five judges, agreed with a High Court verdict that had described the procedures of filing the case as a nullity since the timeframe for filing the suit had been exhausted.

Justice Lenaola said that as a result, the Supreme Court had no jurisdiction in handling the matter.
“We must sympathize with the petitioner who, without any fault of her own, has been locked out of the seat of justice. We know the long time the process has taken, the huge financial resources that have been used by both parties,” he stated.

The judges thus ruled, “The final orders of the court, therefore, are as follows. The petition is hereby dismissed. The cost of the suit shall be borne by each party.”

The High Court in Kerugoya twice dismissed Karua’s case prompting her to move to the Court of Appeal where it was also thrown out.

In her suit papers, Karua claimed that her agents were barred from accessing polling stations. She also cited allegations of bribery and canvassing. She was not given a chance to prove this on a technicality.

Can evidence from a dying person be admitted?

A dying declaration is admitted as evidence in court, but it is treated with a lot of caution and needs some corroboration.

Why?

1. The guiding principle is that it was made in extremity when the maker declaration is at a point of death and the mind is induced by the most powerful considerations to tell the truth.

2. The maker of the declaration cannot be put under cross-examination.

Case 1. Josphat Maina Kamura 

One evening, Mr Kibata heard a motorbike drop his neighbour Josphat Kamura. As soon as the motorbike left, Mr Kibata heard screams. He and another neighbour ran to the scene of the screams and found Mr Kamura bleeding profusely from his head.

Before passing out, Mr Kamura narrated to them that he had been attacked by some young men including Grace's husband. They took Kamura to hospital. However, he was pronounced dead on arrival.

Three people were arrested, among them a man identified as George Mwani Kabira, the husband of Grace.

In his defence, Mr Kabira argued that Grace is a common name among women and many have husbands. Justice Mary Kasango agreed and acquitted him.

“Since the dying declaration of the deceased was that it was Grace’s husband who had attacked him, that single evidence against the accused was indeed very weak,” the judge said.

Justice Kasango concluded that there can be no justification for convicting him simply because his wife’s name was Grace. “If that was to be so, then one could convict many people whose wives are called Grace for the murder of the deceased,” the judge said.

Case 2: Mwambu Chiruu Mwambui

Mr David Chipolu was seated outside a shop at Kasidi market, at Rabai when he was joined by Philip Nzaka, who lived in the same neighbourhood. Moments later, Mwambui joined them. After a while, Nzaka led Mwambui by the hand as the conversed. The next moment, Mr Chipolu saw Mr Mwambui lying down with his intestines protruding and a knife stuck in his belly. There was no one else in the vicinity save the three. Mr Chipolu prevented for Mr Nzaka from freeing and raised an alarm.

When Mwambui’s wife, Betty Chivizi, arrived from the market, she was told that her husband had been stabbed. She rushed to the scene and found him lying in a pool of blood. He told her, “Bye, I’m going. I’m dying because I have been stabbed by Nzaka”.

Nzaka was convicted for the murder by Justice Martin Muya and sentenced to death. However, on appeal, the Court of Appeal noted that Mr Chipolu did not see the stabbing

The judge said although the Mwambui's attempt to flee the scene is indicative of his guilt and may be relied on as evidence that corroborates the prosecution case, no one saw Mr Nzaka stab Mr Mwambui and hence the so-called evidence was hearsay. Additionally, he said, the accused was not in possession of the murder weapon.

Conclusion

The evidence of a dying declaration must be admitted with caution because it is not subject to the test of cross-examination and the circumstances leading to the person’s death may have caused confusion in him and rendered his perception questionable.

While it is not a rule of law that a dying declaration must be corroborated to find a conviction, nevertheless the trial court must proceed with caution to get the necessary assurance that a conviction founded on a dying person's declaration is indeed safe.

A dying declaration must be satisfactorily corroborated to justify a conviction.

Is Drunk and Disorderly a crime in Kenya?

Although it may be argued that the crime of being drunk and disorderly is a primitive poor man’s offence and an abuse of the legal process, the law remains in the Kenyan statutes.

Rarely are rich people charged with being drunk and disorderly. Therefore the arrests are seen to be made more to solicit bribes than to stop any felony. You have to part with money or spend the weekend in custody.

Being disorderly (even without being drunk) is an offence. You risk being jailed or fined if you trample on other people’s rights by being disorderly. Unfortunately what constitutes disorderly conduct is difficult to define. As a result, people are arrested while going about their businesses just for the sake of filling the cells on Friday or Saturday.

Police also use this excuse to limit the number of people loitering at night to make their work of monitoring criminals easier. But if the suspects arrested were to go to full trial, there would be no witnesses because the prosecution has to call the people who were offended by the suspects.

At the station, the suspects, mostly young people, the officers demand Sh1,000 in order to release them and avoid the embarrassment of being detained and paraded in court. While some pay the amount readily, others need a bit of coercing. They are advised to plead guilty because the charges do not attract harsh punishment but if they deny the charge, they would be remanded awaiting trial. Remand cells are on ordeal many people want to avoid. Most pay up at this point and some are released without paying anything while others end up in court.

The sentence can range from, fine, community work for a day to six months in jail.

Why court found Githongo liable for slandering Chris Murungaru.

Former anti-corruption boss turned whistle blower, John Githongo, had immunity from prosecution regarding his role in unearthing corruption in the government.

So why did the court rule he pays Sh27 million to former Cabinet Minister Chris Murungaru for maliciously linking him to graft?

Mr Githongo had told the court he that as the Permanent Secretary in charge of Governance and Ethics, he authored and forwarded the exposé to President Mwai Kibaki and to the director of the anti-corruption commission in 2005. He argued before High Court Judge Joseph Sergon that where a private citizen makes a report to the anti-corruption commission or to the president as an  informer, one is immune to demands for damages and that the dossier cannot, therefore, form the basis of a defamation suit against him.

Justice Sergon agreed with him. But the judge said there was evidence that Mr Githongo caused the letter he had sent to the President and anti-graft body to be published by media houses, both in print and electronic and also he personally gave his story to Michela Wrong and even read the manuscript of the book titled It’s Our Turn to Eat, and approved it for publication.

Mr Githongo further republished the offensive publication when he granted interviews to various television stations.

In the circumstances, the defences of qualified privilege and public interest could have only been available to him had he restricted the dossier’s dissemination to the President and the anti-corruption commission director.

The court found that the publication depicted Mr Murungaru as one who engaged in corruption, lacked integrity and was dishonest. It also portrayed him as the mastermind of the, Anglo-Leasing type of contracts. But Mr Githongo presented no evidence linking the former minister to corruption.  Therefore, in the absence of evidence to establish the truthfulness or justification of the content of the dossier means that the publication is and was defamatory to Mr Murungaru

In particular, Mr Githongo had admitted that he was not aware of Mr Murungaru being charged with any corruption-related cases; he was not aware of any monies being traced to Mr Murungaru’s accounts; and that he had told  President Kibaki that Mr Murungaru’s colleagues told him that the minister was corrupt, but they gave him no evidence.

“In light of Mr Githongo’s testimony, it is clear that there was no factual basis to assert that Mr Murungaru was engaged in corruption.“It cannot be stated by any stretch of imagination that Mr Githongo’s job description as a permanent secretary mandated him to defame Mr Murungaru. Therefore, he is personally liable for his actions,” Mr Sergon ruled in a verdict dated May 2, 2019.

The judge also said there was evidence that as a result of the publication, Mr Murungaru’s supporters, business associates and friends lost confidence and faith in him.

Abortion Clinics must Perform Ultrasound Scan before an Abortion

Pro-lifers in Kentucky, America won when a three-judge panel of the Sixth Circuit Court of Appeals upheld the state’s law requiring abortionists to give women the opportunity to view ultrasound images of their children before an abortion.

Enacted in 2017, Kentucky’s Ultrasound Informed Consent Act requires abortionists to perform ultrasounds prior to committing abortions, display and explain the images, play the audio of any foetal heartbeat, and offer women the opportunity to view the images. It does not force women to view them.

The left-wing American Civil Liberties Union (ACLU) sued the state on behalf of Louisville abortion facility EMW Women’s Surgical Centre, and later that year U.S. District Court Judge David Hale blocked the law from being enforced. Now a 2-1 ruling from the Sixth Circuit has reversed that injunction, Courthouse News reports.

He explained that the ultrasound provides relevant information that gives a patient greater knowledge of the unborn life inside her. This also inherently provides the patient with more knowledge about the effect of an abortion procedure: it shows her what, or whom, she is consenting to terminate.

Informed consent is extensively regulated without controversy in most areas of medicine. But pro-lifers support while abortion activists oppose ultrasound requirements for their ability to convey the humanity of preborn babies and dissuade women from abortion.

Pro-life groups Save the Storks says four out of five pregnant women who see one of their free ultrasounds ultimately choose life. The similar ICU Mobile says its ultrasounds have convinced 56 per cent of women who had already decided on abortion to change their minds and 87 per cent of those who were undecided to choose life. In addition, a 2011 study by Quinnipiac University’s Mark Gius concluded that ultrasound laws had a very significant and negative effect on the abortion decision.

Are Married Daughters entitled to inherit a share of their father’ s property?

The case of the Estate of Ibrahim Wathuta Mbaci appeared before HON. A. Mshila, and judgement delivered on the 13th day of December 2018.

Ibrahim Wathuta Mbaci, (deceased) who died on the 16th August 1994 aged 84 years had two wives; Ruth and Mary. The First wife Ruth, was deceased. Wathutas’s estate consisted of three properties namely:
(i) Thegenge/Kihoro/69
(ii) Eusonyiro/Suguroi Block VII/377
(iii) North Tetu Farmers Co. Ltd Plot No. 0063
The first wife, Ruth, had four children (one dead), while Mary had 12 children, including the son he walked into the marriage with and a dead daughter.
Mary applied for and was granted Letters of Administration. Later she applied for the Confirmation of the Grant and proposed a mode of distribution of the deceased husband's property registered in her name that purported to have been signed by all her children.
Subsequently, SAMUEL WACHIRA KAMUHIA and JOSPHAT MAINA KAMUHIA, both Mary’s Children, filed protests against the Grant of Confirmation.
Also, two daughters of Ruth jointly filed their Affidavit of Protest.

Mary’ Children Case
Samuel and Josphat testified that their stepmother, Ruth, died in 1987 and their father ten years later. Since their father did not lock out his step-sisters from tilling his land, they proposed that

1. The three properties are divided equally between the 1^sthouse and the 2^nd Further that Mary is given a life interest over her houses portion.
2. Since each wife had been given their portion, and that the 1st wife was buried on the portion granted to the 2^nd house, they proposed that a swap of the portions be done and the portion where the 1^st wife was buried be given to the 1^st house and vice versa.

Ruth’s Daughters case
They complained that Mary had only involved her own children and that she had not obtained Consent from Ruth’s children when she filed for the Letters of Administration. Mary’s intention was therefore to disinherit them.
They proposed that each of the two houses of their father should get half a portion of each property.

Mary’s case
Mary testified that her late husbands’ wishes were that she becomes the administrator of his estate.
She proposed that since only sons were allowed to inherit properties in Kikuyu customary law, and since her co-wife’s daughters were married and were therefore not entitled to benefit, she wanted the estate divided among the six sons of Wathuta and registered in her name as she was the surviving widow of the deceased.
After hearing the presentations the court framed the following issues;
 (i) Whether all the children of the 1st house were beneficiaries and whether they are entitled to benefit from the deceased’s estate;
(ii) Distribution of the estate of the deceased.

Conclusion
As to the only dispute was whether the married daughters are entitled to a share of the deceased’s estate, the court found the applicable provision of the law is Section 29 of the Law of Succession which defines a dependant, and it reads as follows;

“Section 29:  For the purposes of this Part ‘dependant’ means- (a) the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;

It concluded that from the reading of the above section was clear that the succession laws disregard customary law and that it allows all the deceased’s children inclusive of those daughters who had gotten married whether or not maintained by the deceased prior to his death to benefit from his estate
Since Wathuta’s marriage was polygamous, section 40 of the Law of Succession was found to be applicable. It reads;

“Where an interstate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate shall, in the first instance, be divided among the houses according to the number of children in each house but also adding any wife surviving him as an additional unit to the number of children.”

The estate of a polygamous deceased should be distributed according to the number of children and not the number of houses. The court concluded that the married daughters are dependants and beneficiaries of the deceased and qualify to inherit the deceased estate. But due to the consensus by the siblings on the mode of distribution, the court decided to adhere to the method proposed by them. Mary’s method of distribution was found to be unfair and discriminatory.
The first house is found to comprise of four daughters. Although one is deceased, the surviving sisters had invited their deceased sister’s children to claim their late mother’s portion. This then translates to four units. The second house comprises of eleven members and Mary is the extra unit bringing the total in this house to twelve units. Overall total number of units is therefore 16.
The deceased’s estate shall be distributed as follows;

1. Thegenge/Kihora/69: Shall be apportioned equally between the 1st house and the 2nd house. The 1st house shall take the portion that hosts their deceased mother’s grave. Mary shall hold a life interest in the 2nd house’s half portion share, and upon her death, this portion shall be divided equally between her surviving children.
2. Eusonyiro/Suguroi Block VII/377-shall be divided on a ratio of 4/16 for the first house; and 12/16 for the second house; Mary shall hold a life interest of the second houses share the life interest to terminate upon her death and shall then be shared equally between all her surviving children.
3. North Tetu Farmers Co. Ltd Plot No.0063–the property to be divided according to the determined ratios; Mary shall hold a life interest of the second houses share and upon her demise it shall be shared equally amongst all her surviving children.

Can Muslim Girls wear the Hijab in a Church Sponsored Public School?

Supreme Council of Kenya Muslims Mombasa coordinator Sheriff Mundhar Khaitany holds a press conference at Mbaruk mosque on January 26, 2019, following the Supreme Court ruling giving schools the mandate to decide on the wearing of hijabs by Muslim girls.

By KEN OGUTU

The recent Supreme Court ruling on whether Muslim girls can wear the hijab in a Methodist Church-sponsored school has elicited sharp opinions.

But the outrage shows that many have rushed to condemn the court without having understood the decision.

This can be partly blamed on media misreporting of the judgment despite the Supreme Court issuing a two-page summary of it to help reporters capture it accurately.

The controversy started during the annual prize-giving day in June 2014, when the Isiolo County deputy governor requested St Paul’s Kiwanjani Day Mixed Secondary School to permit Muslim students to wear hijab and white trousers with their uniform.

Before the request was granted, the students started wearing hijab and, when asked to adhere to the school uniform, protested.

PETITION

After several meetings, the county director of education ordered the principal to permit Muslim students to wear hijab even though the stakeholders had voted not to allow it.

The principal was also transferred. The church then sued the official in a petition in the high court asking it to declare that permitting Muslim students to wear hijab would be discriminatory, unconstitutional and contrary to the school rules.

Mr Mohamed Fugicha, a parent of one of the girls, asked to be enjoined in the case as an interested party and the court agreed.

He then filed a replying affidavit, indicating that he would cross-petition the court for orders that Muslim students should be permitted to wear a limited form of the hijab.

When one is sued, he can file a cross petition, by which he raises his own case against the petitioner rather than simply responding to the case against him.

DISCRIMINATORY

That often raises issues that were not in the original petition, which is why courts require sufficient detail for the other side to respond.

After declaring that it was discriminatory to allow Muslim students to wear the hijab, the High Court also found that the cross petition did not comply with procedure and allowed the church’s petition. Mr Fugicha moved to the Court of Appeal.

The appellate court disagreed with High Court on the preliminary issue of whether the cross petition was properly before the court.

The judges said the Constitution and the rules no longer require such petitions to strictly follow procedure and the other parties were aware of it and had a fair opportunity to respond.

In the substantive dispute, it disagreed with the High Court.

The Supreme Court also had to deal first with the preliminary question of whether the cross petition had been raised properly at the High Court.

RULING

This is where the Supreme Court differed with the Court of Appeal.

Four of the five judges took the view that, since Mr Fugicha was only an interested party in the High Court petition, he had no right to file a cross petition and it did not meet the procedural rules.

The judges ruled that, in permitting the cross petition, the appellate court denied the other parties their right to a fair hearing.

It is solely on this point that the Supreme Court differed with the Court of Appeal.

However, the Supreme Court did not overturn the Court of Appeal decision, saying the latter was wrong in its decision over hijab — it did so owing to the appellate court’s failure to grant all parties a fair hearing. As such, reports that the Supreme Court gave schools the final say on their uniforms, which includes the power to ban the hijab, are simply false.

ESCAPIST

Indeed, the Supreme Court said the hijab issue was an important question but that it would not address it until the matter had been properly raised and determined by the High Court and the Court of Appeal.

We should not be angry at the Supreme Court for allowing church-sponsored schools to ban hijab — it said no such thing.

Instead, we should criticise the apex court for elevating procedural technicalities above substantive issues — which goes against the Constitution as it demands that the Judiciary administers justice without undue regard to procedural technicalities.

It is unfortunate that the highest court in the land chose an escapist route, thereby wasting an opportunity to deal decisively with a hotly contested issue that threatens to divide Kenyans right in the middle.

Mr Ogutu teaches law at the University of Nairobi. kenogutu@uonbi.ac.ke