Kenyan magistrate loses court battle against judge co-contender for top job at law body

8 December 2023 · Carmel Rickard

Kenyan magistrate Derrick Kuto made headlines in December 2021 when he became the first magistrate to head the Kenya Magistrates and Judges Association. After outvoting high court judge Patrick Otieno, by 290 votes to 113, Kuto took over as president of the association. The term of office is for two years, renewable once. Kuto has clearly expected a second two years in office, but his bid hasn’t been straightforward. It has taken a detour through the high court’s constitutional and human rights division, where the judge who heard the dispute, Enock Mwita, has now delivered a judgment dismissing Kuto’s petition.

Read judgment

It's an unusual line-up of parties to this petition: magistrate Derrick Kuto against the Kenya Magistrates and Judges Association (KMJA), with a pair of interested parties: the Independent Electoral and Boundaries Commission and a judge, Radido Stephen Okiyo, who is a member of the high court division that deals with employment and labour relations.

Kuto is the KMJA president, intent on re-election for a further two years in office, and Okiyo has emerged as a fellow contender for the position, hence his naming as an interested party in Kuto’s high court petition.

At the end of August, the KMJA sent out nomination forms, giving members 21 days to submit nominations for the various vacancies that were about to fall due. The nominations had to be in by 19 September and the forms were sent via email to the members’ email addresses as required by the KMJA’s rules.

Error – or dispute

By 19 September, Kuto’s was the only nomination for the position of president and four days later, the KMJA’s executive director sent members a list of those nominated for the various positions, including Kuto’s name for the presidential vacancy.

But then things changed rapidly: the KMJA received a complaint from Okiyo, who is a member of the association, saying that the email he had received from the KMJA hadn’t contained the nomination form and other election-related information as the association’s rules required. Okiyo had intended to stand for the presidential position, but couldn't do so because he hadn’t received a nomination form.

The KMJA is supposed to have a dispute resolution committee, but as this hasn’t been set up, the matter raised by Okiyo was sent to the association’s national council to deal with. At the end of September, the national council decided that there had been an ‘error’ (rather than a dispute) and that it could be dealt with administratively. The council decided that the nomination process should start again, from scratch, so that those who hadn’t received the full documentation could participate fully. It also decided that elections of those nominated would be held on December 16.

Rights violated

This is where Kuto drew his line in the sand. He launched a petition in the high court’s constitutional and human rights division where the judge who heard the dispute was Enock Mwita. The bottom line of Kuto’s petition was that the council’s decision to reopen the nomination process and change the election date violated several of his fundamental rights and that Okiyo had delayed submitting his name as presidential candidate beyond the deadlines set for nominations.

In Kuto’s view, his (Kuto’s) was the only nomination received by the deadline, and so he had been effectively elected, unopposed, to the position of KMJA president for another two years. He said the council’s decision to start over was unlawful, unreasonable and unfair to him.

The KMJA, however, said it had acted correctly. Others, apart from Okiyo, had also not received the nomination forms, and a re-scheduling of the election process had been the correct way forward.

Conflict of interest

It also emerged from the KMJA’s response that Kuto, as president of the association, had been present at the meeting of the executive council that first considered Okiyo’s complaint and that he had chaired the meeting. The complaint had been referred to the national council, and when it met, Kuto was again present. However, the majority of the council decided that he had to stand down from chairing the meeting and from voting because of a conflict of interest.

The council’s decision to re-start the nomination process was taken ‘to respect members’ right to participate in elections’, and it wasn’t correct that Kuto’s constitutional rights had been violated by the decision, the KMJA told the court.

Kuto’s rights weren’t ‘above those of other members’, and his claim to have been the only candidate validly nominated for the presidency ‘cannot stand in the face of the disclosed anomalies’.

‘Blocking a democratic process’

While Kenya’s Independent Electoral and Boundaries Association didn’t participate in the proceedings, Okiyo, the other interested party, had something to say: when he didn’t get the nomination forms he lodged a complaint. After the council re-opened the nomination process and changed the election date, he submitted his nomination form and later heard that he had been ‘validly nominated to vie for the position of president’.

Okiyo said that Kuto was trying to ‘block a democratic process and impose himself as … president’, and he urged the court to ‘balance’ the rights of the KMJA’s members to elect their leaders, with his right to participate as a candidate and the right of Kuto to do the same.

When the case first began before court, the presiding judge asked the parties whether they couldn’t resolve the dispute without litigating, but although this was discussed with the parties, counsel later told the court that the case would have to go on.

Electoral malpractice

The judge said that the national council had been the correct organ to deal with the electoral irregularity that had been established and that Kuto had to appreciate that ‘an election is a process. Where an aspect of the electoral process is found to have been faulty or [so] irregular as to cast doubt on the credibility of the election, it voids the entire election.’

Kuto couldn’t be allowed to benefit from the electoral irregularity that had occurred: it he did, it would infringe on the rights of Okiyo and other members of the association, and it would also ‘sanction an electoral malpractice.’

While Kuto effectively claimed the decision to reschedule the election process was unreasonable, it was not, the judge said. In fact, the reverse was true, and it would have been unreasonable if the irregular nomination process had been upheld.

Essence of procedural fairness

The judge said that ‘fair, open, transparent, accountable and democratic elections’ had to be part of all institutions in Kenya, including the KMJA, and he could find no fault with the decision to correct an irregularity that would have violated members’ rights.

He added a further sting to the judgment, questioning Kuto’s decision to take part in the deliberations of the KMJA’s executive council and its national council as he was an ‘interested party’ in the issue they were discussing.

‘Even though he was a member of [both bodies] and the chair, good sense would have required [him] to stay out of those meetings. That indeed, is the essence of procedural fairness.’

The judge concluded that there had been no violation of Kuto’s right to fair administrative action, nor to legitimate expectation, and dismissed the petition, with the only good news for Kuto being that there was no order as to costs.

Carmel Rickard

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