Revealing the Bones in the closets of Kenya’s senior counsels

By Vanquished Vanquisher
The rank “Senior counsel” is a revered title in the Kenyan legal profession. It is conferred by the president upon lawyers who are said to be of “high professional integrity” and who have served as Advocates for a period of more 15 years. The honour is a local mirror replica of the English “Queen’s Counsel.”

Muite
Save for the Attorney General and the Director of Public Prosecutions, Senior Counsels take precedence in addressing the court. They are also entitled to the front desks in courtrooms. In addition, where they are alleged of being involved in professional malfeasance, the Advocates Disciplinary Tribunal has no jurisdiction over them. They have their own tribunal.
Argument has been, these favours need to be accorded to the senior counsels as a recognition given their irreproachable professional lives that made them deserving the conferment of the title.

Chairmen to seniors
In year 2003, president Kibaki conferred the first batch of persons with this distinguished honour. President Moi, perhaps having seen the vanity of such classification, never in his entire term as the president conferred any lawyer with this title. But President Kibaki had to. And in his honouring, almost all the initial beneficiaries were the former LSK chairpersons. Its immensely guffawing how by mere virtue of one holding a political post that is LSK chair would promote one to be a “distinguished practitioner of irreproachable integrity.”

Fortunately, this conferment is no longer a sole discretion of the president. Currently, there is a committee on Senior counsels which is tasked with vetting prospective candidates and making recommendations to the president.
Their distinguished careers not withstanding, most men and women holding this rank carry on them, like a camel hump, baggage of their past controversies and unresolved ignominies. For senior counsels are said to be of irreproachable conduct, that irreproachable must be easily discernible from their career history.

In this brief, we shall sample ten of the men holding this title, men who are said to be of irreproachable professional conduct and famed as ‘distinguished practitioners’ and in the course, reveal the bones encased in their closets.

1. George Oraro
Oraro strides the Kenyan Legal profession like a colossus. He is a respected veteran with a stellar career spanning over decades. He has has been involved in high ticket litigation, earning him both fame and fortune. However, he has stains; big, indelible stains.

The Law Society of Kenya, in the report titled “Realising Integrity Law; Walking The Talk” listed names of various individuals allegedly to have been involved in human rights violations, corruption and other economic crimes, obstruction of justice among other terrible vices.

The LSK report is lurid with details on the murder of Robert Ouko. It recounts that at the scene when Robert Ouko was being killed, George Oraro was present. Oraro accompanied the assassins as they finalised their killing rituals? What was he doing there? Ensuring appropriate legal rituals were being followed? The report adds that LSK gave Oraro a chance to respond to these grave allegations but he was not interested.

The senior counsel has never been cleared on this issue. Even after our intense labour in research diligence, we could not get any press release by him denying his involvement in Ouko’s murder as alleged by the LSK report. His only riposte on the issue is instituting a defamation suit against former Kisumu MP, Gor Sung’u, when the latter said publicly that Oraro was involved in the murder.

The court slapped Sung’u with 3 Million defamation damages in favour of Oraro. But this did not make the allegation dissipate. As things stands now, the issue is and still remains a bone in his closet. How are the juniors supposed to revere a man with such grave and vile accusation against him? Does he merit the senior counsel tag when such suspicions are still live?

2. Fred Ojiambo
Fred Ojiambo is a thoroughly-bred, adept and a refined litigator. He is the managing partner of Kaplan & Stratton, one of the Kenya’s premier white shoe law firms. His legal prowess, and that of the firm he leads, has attracted both the blue chip corporates and masked ghosts seeking his services.
Masked ghosts here include among others mobitelea, the undisclosed shareholders of Safaricom and the wife of Rwandan Fugitive Felician Kabuga who are clients of Fred Ojiambo. Granted, there may be no issue in this. Lawyers are allowed to represent ghosts, provided the ghosts pay their legal fees.
But there are issues. In the year 1994 or thereabouts, Fred Ojiambo was appointed and duly served as the secretary to the Commission on Devil Worship. This was a bogus commission established by president Moi and chaired by the late Nyeri archbishop, Nicodemus Kirima. It was tasked to investigate the rising cases of devil worship in the country.
It’s unbelievable that a lawyer of Ojiambo’s calibre could consent to being a member of such a bullock contraption. This may be a vivid indicator that Ojiambo is a man of minutia virtues and principles, whose rise to the pinnacle was fueled by dalliance with crooked regimes of passed past.

3. Githu Muigai
Githu Muigai, apart from being a respected professor of law, he also holds an infamy of being a self-declared legal mortician. Even before rising to the post of the Attorney General, Githu had made a name in the field of academia as well as legal practice.
But as the Attorney General, Githu changed. The Nairobi Law Monthly once labelled him the “bungling attorney” on a feature they did on him. And for bungling he has. For it is Githu who commandeered the process of paying the Anglo fleecing fat cats after messing up the Kenyan arbitration case in London. Tony Gachoka, being hosted by Jeff Koinange in his KTN late night talk show- JKL- would later reveal at cost of heavy contempt of court penalties, that the Anglo leasing figure heads paid was one Jim Wanjigi, who is said to be a friend of both Githu and the man in charge of the presidency.

Githu, as the Attorney General, he is the titular head of the bar in Kenya. He is expected to structure the state law office to be an exemplary law firm. But Githu has been unable to champion any meaningful reforms there. Even students who intern at his office as pupils receive no stipends. Instead of being their pupil master, for his stinginess, Githu has turned state law office into a slave master. He has failed to live up to the seniority that his senior counsel status was bequeathed.

4. Paul Muite
Muite’s is a lawyer of immense charisma. He has built a reputation as a fearless advocate. Further, he has credentials of a national leader and was even one time considered as a serious presidential contender. He is a humble man with easy mien. Fame has never gotten into his head like his contemporaries. Within the corridors of court, he mingles freely with others lawyers and even spares a minute for a chat.

During his tenure as the LSK chairman, Muite championed accountability. He was the Czar lampooning Goldenberg conveyers. Amid a refusal by the government to take action against the perpetrators of the scandal, Muite instituted a private prosecution against Kamlesh Pattni, who the image of the multi-billion-shilling scam.
Everything crumbled when in 1999 when Pattni sensationally claimed that he had bribed Muite with Sh20 million in return for Muite going slow on him.

Muite denied the allegation. Nzamba Kitonga, the LSK chair then, constituted an independent probe to look into the allegation. The probe concluded that payment of Sh15 million to Muite had been established, putting the last nail into Muite’s standing as a man of honour and credibility.

5. Keriako Tobiko
It has been reported elsewhere that Tobiko has solid academic credentials. Before his appointment as the Director of Public Prosecutions, which was then a post in the Attorney General’s office, after abrasive Philip Murgor had been purged, not much was known of Tobiko. On his appointment, critics said the Kibaki regime had specifically cherry picked him for the post because he was a man who could be fine-tuned to compliance unlike Murgor. As history evolved, critics were vindicated.

The Pandora’s box on Tobiko was opened when he was being vetted by a committee of the National Assembly for the re-established post of the DPP. The first bullet was shot by the former Permanent Secretary Sammy Kirui who told the vetting panel that Tobiko was a corrupt individual who had demanded a 5 million shillings bribe from him. Professor Yash Pal Ghai and PLO Lumumba also appeared and told the committee that Tobiko was used as protege of the government to undermine and eventually scuttle the 2005 constitutional review process. Yash Ghai has proved to be a man of honour and there is remote possibility he could publicly make such allegation if they were false. And yet, we have Tobiko as a senior counsel!

6. Gaturu Muthoga
Muthoga is a veteran lawyer who has served the profession with dedication. In addition, he has served as a judge in the International Criminal Tribunal for Rwanda.

Muthoga issues comes from the family of J.M Kariuki. A section of Kariuki family has consistently claimed that Muthoga destroyed the JM’s will when he acted as the family lawyer. In view that a will is the key probate document, and without it the administration of the estate of the deceased is done through the very clumsy intestacy procedures, this was an extremely vile act, whatever the reasons there may have been. How can Muthoga therefore be said to be of “irreproachable professional integrity”?

7. Mutula Kilonzo
The late Mutula Kilonzo cut his niche as a lawyer who would do anything in defence of president Moi. As far as Mutula was concerned, Moi could do no evil, devise no evil and execute no evil.

Mutula’s real shade was revealed, quite unfortunately, after his death. Even before a requiem mass was held, a young woman aged 23 years by the name of Eunice Nthenya rushed to court claiming that Mutula was the biological father to her 8 year old son. This means she got the child when she was only 15 years. The senior counsel was sleeping with a minor aged 15 years? In Kenyan law, that is defilement. The senior counsel deserved no less than two decades in jail. Much to the taunted ‘irreproachable conduct’.

8. Kenneth Akide
Who is this now? Not much is known of this man. The only public account of him is that once upon a time, he served as the LSK chairperson. And he was very colourless chair at that. And that made him the senior counsel? Totally outrageous! He is not known in academia. He is not known to have convictions on public policy discourses. No reputation precedes him as well-bred litigator or expertise in any area of law. And yet he is a senior counsel. Just like that.

9. Ahmednasir Abdullahi
Ahmednasir, the Grand Mullah, is a popular figure in the legal circles. Unlike his contemporaries, he has tried a hand in academia and even published a book, even though its about burials.

Equally, he runs a Nairobi Law Monthly magazine which publishes various budding and established writers. He is reputed to be abrasive, but to his credit, he has substantially utilized this arrogance for public good by unleashing his potent bile upon corrupt judicial officers, leading to many of them being sent packing.

However, if Ahmednasir was a professor in a university, most certainly, he would be appointed without opposition as the dean, the faculty of hubris and arrogance. In addition, his qualification as an advocate has been questioned, allegation being he faked his pupillage. His pupil master, one Mr Simani, whose signature Ahmednasir purportedly forged, did not help matters by refusing to come to Ahmednasir’s defence. Mr Simani would later die in the West gate Terrorist attack. Most of the suits probing the Grand Mullah’s qualification were dismissed on limitation of actions grounds. The allegation that he faked pupillage is not conduct which can be termed as of irreproachable, demanded of a senior counsel.

10. Tom Ojienda
In a report by the Ethics and Anti-corruption Commission presented to Parliament by President Uhuru, there were details on how Professor Tom Ojienda colluded with Nairobi Governor Evan Kidero to defraud Mumias Company of Sh280 million. In this scheme, Ojienda invoiced Mumias for legal services he did not render. These acts led to the collapse of Mumias Company. And yet Ojienda is a senior counsel expected to earn the reverence of the junior lawyers. Like seriously?