Standstill as lawyer demands judge conducts court case in Kiswahili
A stand off ensued at the Milimani High court in Nairobi on June 20, 2023 when a lawyer demanded proceedings of the first constitutional application drafted and drawn in Kiswahili be conducted in the same language.
Lawyer Harrison Kinyajui who was prosecuting the suit filed by an activist Enock Joseph Aura demanded that Justice Lawrence Mugambi carry out court business in Swahili.
But the request was vehemently opposed by a state counsel and Justice Mugambi who directed a registrar of the court appear before him to translate the proceedings from Swahili to English.
“I wonder how these proceedings will be conducted if this court will record proceedings in English language yet I am addressing the court in Swahili. Where is the meeting point. This case has been drafted in Swahili,” Kinyanjui told the judge.
But the judge begun by addressing the parties in the English language although the Petition by Aura is fully expressed in the Kiswahili language.
While protesting the move by the judicial officer, Kinyanjui stated that the Petitioner 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.
This was met with opposition from both Justice Mugambi and the Advocates representing the Attorney General Justin Muturi and the Chief Justice Martha Koome, who 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 the 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 does not permit it.
But Kinyanjui stated in the AG filing documents in the English language while the Petition is framed in the Kiswahili language, was in violation of Article 7 of the Constitution of Kenya, which was supreme to all other laws.
The Judge on his part addressed the parties in the English language, at which point lawyer Kinyanjui requested 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 had lapsed 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 have trivialized the proceedings to the point of laughing in Court.
The judge however adjourned the case to July 19,2023 for the Deputy Registrar to secure the services of a translator in the case.
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