The clear misses in Githongo's Sh27m defamation ruling

When writing a final judgement at the end of a case, it is usual for a judge to discuss the history of the case, especially when this is needed to explain the outcome.

In a departure from this practice, however, Justice Joseph Sergon delved straight into an analysis of the evidence and the law, when he sat to write the judgement awarding former Internal Security Minister Chris Murungaru Sh27 million against former anti-corruption czar, John Githongo.

If he had included a narration of the history of the case, Justice Sergon would have indicated that he was not the original trial judge in the case, and that he inherited it from another High Court judge, Justice David Onyancha, who has since retired.

Filed in 2006, Justice Onyancha handled the case until March 2015, when he suddenly disqualified himself from the hearing. By then, the plaintiff had closed his case, all the evidence on his behalf having been tendered. In disqualifying himself, Justice Onyancha explained that there had been an attempt to compromise him, as a result of which he had decided to stop hearing the case.

While no details were provided as to the nature of the attempted compromise, the manner in which Justice Onyancha handled the disqualification was also mysterious. Rather than meet the parties to the case, who had attended court for a scheduled hearing, Justice Onyancha wrote a brief ruling that was then read on his behalf by another judge. This meant that there was no room for the judge to explain himself to the parties, who seemed bewildered by this development.

While the reported attempt to compromise Justice Onyancha was a serious matter, the manner in which it was handled effectively covered it up, introduced a sense of intrigue into the proceedings and prevented an investigation. For justice to have been seen to be served, this incident, without which Justice Sergon would not have come into the case, should have been managed differently.

On his part, Justice Sergon should reasonably have discussed the incident in his judgement, possibly expressing his understanding of the effect the incident might have had on the case, as this is what gave him an entry.

When narrating the evidence as part of his judgement, Justice Sergon indicated that Murungaru, as plaintiff, had called four witnesses while Githongo brought only one witness besides himself. In fact, this is an incomplete account of what transpired during the trial. While it is true that the sole witness for the defence was Joseph Odindo, then a senior editor with the Nation newspapers, Githongo had also intended to call former Prime Minister Raila Odinga as his witness, but Justice Sergon did not allow him to do so.

In preparation for his role as a witness, Raila had already written a statement for Githongo. On the date that he was to testify, Githongo’s defence submitted a letter from Raila, already the AU High Representative on Infrastructure, indicating that he had travelled out of the country on official duty and would not be available on that day.

Raila had indicated alternative dates on which he would be available to testify if the court allowed the adjournment that the defence was now seeking. However, Justice Sergon declined the application for an adjournment, bringing an unexpected closure to his case. 

The former premier had sat on the Cabinet committee on anti-corruption chaired by the president, and for which Githongo acted as secretary. Murungaru sat on the committee as Minister of state for Internal Security, together with Kiraitu Murungi, then minister of Justice, David Mwiraria, then minister of Finance, Amos Kimunya, then minister of Lands and Musikari Kombo who, in addition to ministerial duties, was chair of the African Parliamentarian Network against Corruption. Odinga pleaded for a change of hearing date due to official commitments, but these were dismissed by Justice Sergon in late 2018.

Again, although it was probably a significant occurrence in the management of the case, Justice Sergon did not discuss the decision not to allow Raila's evidence in the final judgement.

A key part of the defence that Githongo mounted was a number of tape recordings of conversations that he had allegedly held with key officials, including Cabinet ministers. Githongo claimed the contents of the recordings would absolve him from the allegations by Murungaru.

As some of these recordings were not clearly audible, or were ostensibly in the Kikuyu language which would need a translation into English, Justice Onyancha had allowed a court-supervised process by which the contents of the recordings would be transcribed into text which would then be admitted into evidence. The transcription was managed by a court official in the office of one of the lawyers in the case, a process that lasted several days, themselves spread over months.

Although most of the tapes were transcribed, and the text of their contents filed in court, there was no reference to the tapes in the judgement or the manner in which whatever information they contained was handled. It remains unclear if the judge considered these in his final judgement.

In an article discussing judgement drafting styles, Judge Lee Muthoga, formerly of the UN Mechanism for Rwanda, explains that “judgement [writing] is about telling the losing party why it lost. It is best to approach it by explaining its position because it is the party most interested to know why it did not win and also most likely to appeal.”

It is difficult to argue that the judgement by Justice Sergon does not give Githongo reasons to feel aggrieved.

Besides underrepresenting issues of process in the final judgement, Justice Sergon totally ignored questions of context. The suit against Githongo arose from the Anglo Leasing scandal that gripped the country in 2006, giving rise to a tumultuous political situation that almost toppled the young Kibaki government.

The fallout from the scandal included the resignation of Githongo from government before he went into exile in the United Kingdom. Also, a number of high officials, including Murungaru and Mwiraria, eventually lost office or were charged in court in relation to the scandal over which there was significant public outrage.

With allegations of corruption against him commonplace, Murungaru came to be viewed as the face of the scandal, a fact that was not the making of Githongo but a robust media representing the views of an outraged public.

Allowing Murungaru’s claim against Githongo has given judicial approval to a blinkered and contrived self-view by the former minister, which is at variance with how the general public has come to view him after the Anglo Leasing scandal.

In this regard, the outcome of the Murungaru case mirrors that of a previous famous defamation case, the one by Nicholas Biwott. While the public had come to view Biwott as a key suspect in the murder of his cabinet colleague, Robert Ouko, the High Court nevertheless awarded him colossal damages for defamation based on allegations in a book that merely reproduced this widely-held view.

Like Biwott before him, Murungaru has weaponised the Judiciary to silence a legitimately-held view about his performance while in public office, and has collected a colossal sum of money as bonus.

In his judgement, Justice Sergon even found, based on the testimony of only a single witness, that the publication by Githongo is what made him lose his parliamentary seat in the subsequent election. 

In the debate in the National Assembly during which the report of the Public Accounts Committee on the Anglo Leasing was adopted, the following is part of what Billow Kerrow, a member of the PAC said: "We tried to find out from those who gave evidence before us what sort of person Mr Githongo was before he fled the country. We tried to find out the credibility of Mr Githongo. We were told by none other than Ambassador (Francis) Muthaura who is the Head of the Civil Service that he could vouch for the integrity of Mr Githongo. We then tried to find out why after he left the service some honourable members are now saying this man is a liar, irresponsible he is a spy?

It is very clear that without the decision of this gentleman to stand up and tell the truth about this matter, we would be groping in the dark. This country would be losing billions of shillings today. This country owes him an apology for the way he has been vilified by some honourable members of this government for speaking out. Public servants need to emulate him.

It remains to be seen how an appellate court would handle these issues if it was provided with a chance.