At 87, Khaminwa remains a gallant courtroom warrior

Senior Counsel John Khaminwa speaks during the motion to impeach Agriculture CS Mithika Linturi. [Elvis Ogina, Standard]

At the right corner of John Khaminwa’s office is a fireplace

It is right behind the table that the senior lawyer sits when penning or editing court documents in preparation for hearings and filing of cases.

An earthen pot lets out whiffs of aromatic steam as it endures embers of fire.

From the inside, the pot is boiling hot but from the outside, it appears unperturbed by the heat.

 “Is this the gentleman from The Standard? This is Dr Khaminwa,” he identifies himself as if we were meeting for the first time, with his eyes still glued to a paper he is signing.

Just like the earthen pot, Khaminwa has endured many hot embers from life but remains unbroken.

From our mobile phone conversation earlier in the day, it is clear to me he wants to let off steam about what happened in Parliament during the motion to impeach Agriculture Cabinet Secretary Mithika Linturi.

He instructs me to follow him to a first-floor room. A portrait of former Deputy President Kijana Wamalwa hangs on the wall and a mirror is right before the door. He ushers me to a room that I assume to be a library. Former President Mwai Kibaki’s portrait is the first thing that calls for attention.

Then there are two arched windows on each side of the wall that create an awe-inspiring, light-filled space inside.

He looks at me and I quickly fish out my notebook and tap my mobile phone recorder thinking it's time to start the interview. But no. He had carried with him some orange halves which he starts to eat.

This was not my first time with the 87-year-old friend. He had summoned me previously for an exclusive when his client, the now late lawyer Paul Gicheru, decided to quietly surrender to the International Criminal Court (ICC).   

Another time, he called me for a presser about an alleged abduction of Kenyan drug lord Ibrahim Abdalla Akasha grandchildren.

A week ago, he looked at Linturi eyeball-to-eyeball and told him that the only honourable thing to do over the fertiliser scandal was to resign.

Today, he looks at me up close, rubs some strands of white hair that have escaped the edges of his signature brown fedora hat and tells me that it is time to start.

“You record what I say,” he directs as I press him to tell me about his five decades of legal practice.

This is the first time he is opening up after his client, Bumula MP Jack Wamboka, lost in a seven-to-four vote by the committee that was tasked to either exonerate or hold the Agriculture CS to account.

From the two-hour-long conversation, which is 90 per cent a soliloquy, it is clear Khwaminwa was disappointed for what he refers to as being treated to a charade.  

"It was a trial in a chamber of wolves," he says.

“The way the proceedings were conducted and the results announced by the select committee gives the impression that all is not well with respect to parliamentary proceedings.”

“Why were the seven members who had voted to shoot down the motion from the start selected? What forces led to the selection? Was justice served when the committee was a set up? Was this consistent with the principles of justice?” he pauses before a siren disrupts us.

His face is a forlorn mask of despair as he narrates how two advocates who were assisting him in the Linturi impeachment hearing walked away and left him worried sick thinking that they had been abducted.

Khaminwa narrates about past instances when he was anxious about his life, including his exit from the position of Deputy Council to the East Africa Community after Idi Amin Dada took over Uganda on February 2, 1971, a week after the coup that toppled President Milton Obote.

“I served during the reign of Mzee Jomo Kenyatta, Julius Nyerere and Milton Mbote but I left the position when Idi Amin took over,” Khaminwa recalls.

He is emphatic that the situation of missing lawyers during a crucial trial was a dire one.

“I was extremely worried because they may have been abducted. The mover of the motion had also complained that his life was in danger and as a matter of fact, I raised it before the committee.”

Khaminwa’s phone rings and he steps out. The break gives me an opportunity to have a peek at the repository of books neatly arranged on the shelves. An immediate segment on the shelves is religion.

Khaminwa is a Quaker. Others are law, politics and women's rights.

A book titled ‘How to Do Things with Rules’ attracts my attention. It was written by William Twining and David Miers and it is about how rules are made, interpreted and applied.

Behind my seat are two portraits. One is that of Justice Joyce Khaminwa, his wife of 48 years who died in 2014, and son Albert Khwaminwa, who followed her three years later. Albert followed in his parents' footsteps by joining the legal profession.

Then there is a sketch of Justice Dame Elizabeth Kathleen Lane. The Briton had several firsts: First female judge of the High Court, first lady judge to be referred to as ‘my lord’ and she chaired the committee that worked on the Abortion Act in 1971.

When Lane was appointed a judge, she posed the first problem to the English lawyers who were used to the term ‘my lord’. The title that came close was ‘Mrs. Justice’ but did not sound learned or friendly.

After agonizing over what to call her, the lord chancellor’s office decided to call her a mister in order to fit in as ‘my lord.’ She became His Lordship Mr. Justice Lane.

Khaminwa, a corridor of justice-hardened lawyer, also struggles with what to call the conduct of the two assisting lawyers.

When he resumes the interview, he says he is still puzzled by the fact that the lawyers decided to keep off the trial without giving him an explanation.

“I do not know why they did not appear and failed to explain to me what happened. I have not spoken to them,” he says and adds that the juniors had a duty to explain why they did not turn up.

Khaminwa states that he strategized how to approach the motion with the two advocates but only Lady Asha, whom he refers to as a gallant soldier, stayed by his side to the end.

It was the first time a Cabinet Secretary was facing impeachment motion before the National Assembly.

The lawyer says Linturi's case was the second time the country had come close to dealing with portfolio corruption. In both instances, he was at the centre of the case.

The first time, according to him, was when President Mwai Kibaki appointed a judicial commission of inquiry into the Goldenberg scandal. The chair of the commission was Justice Samuel Bosire while Justice Daniel Aganyanya and senior lawyer Peter Le Pelley were commissioners.

The assisting counsels were Waweru Gatonye, Khaminwa, Dorcas Oduor and Kamau Kuria. Later, Aganyanya was replaced with lawyer Nzamba Kitonga.

Khaminwa insists the Marsabit County MP Naomi Waqo-led select committee squandered the opportunity to unravel how the fake fertiliser got to the farmers.

He is of the view that Linturi’s former partner, Aldai MP Marianne Kitany, journalist John Allan Namu, Agriculture Principal Secretary Kiprono Rono and KEL Chemicals Chief Operating Officer Devesh Patel, should have been star witnesses for Kenyans to appreciate ‘what ate what.’

Back to the books, there is one on women rights. Khaminwa is known for the famous SM Otieno’s burial rites saga case of 1986.

He represented Otieno’s widow, Virginia Wambui, while the Umira Kager clan, was represented by lawyer Richard Kwach. Wambui put up a spirited fight to have her husband interred in Ngong, as he wished, but the clan wanted him buried in his rural home in Nyalgunga, Siaya County.

At the High Court, Khaminwa won the bare-knuckle legal war that pitted traditional customs against modernism. Justice Frank Shields ruled in his client's favour. The case moved to the Court of Appeal which then ordered a full trial before Justice Bosire.

On February 13, 1987, Bosire ruled in favour of the clan. Wambui appealed but lost.

On Kitany, he believes that she was a victim of circumstances who became central to the Linturi’s ouster only because she is a woman. Waqo, he says, should have given a fellow woman a chance to tell her side of the story if it was about jilted love as it had been alleged.

“These issues cannot be swept under the carpet,” he says.  

Khwamiwa concludes that my two-hour conversation with him could be summed up into mambo matatu, a jingle coined by President William Ruto.

He states that one, Kenyans lost Sh6 billion in the fertiliser saga. Two, farmers were sold fake fertiliser and lastly, nobody has been punished or called to account for the two crimes.

I close my notebook and stop recording audio thinking we are done. I rise up as he does.

“Oh, there is something else, please write this,” he exclaims.

Khaminwa avers that although Parliament failed to send Linturi home, that should not the end of the matter. He says President Ruto should invoke his powers and reshuffle the Cabinet or appoint a judicial commission of inquiry to probe the fertiliser scandal.

“The way forward for me is for the President to revisit the entire issue as portfolio corruption has become prevalent. This has an adverse effect on investment and stability of the country. Would it be appropriate for the President to consider a judicial commission of inquiry to investigate this matter?” he poses.

He then revisits the National Assembly’s conduct. He criticizes Speaker Moses Watangula’s decision on the select committee.

He insists that lack of individual independence for MPs and politics played along party lines are drawing the marrow of the remaining skeletons of the second arm of government.

He moves to a room next to where I am at and comes back with a book. The cover has a Kenyan flag.  Khaminwa goes ahead to open a page and tells me that Wetang'ula should have made reference to Article 259 of the Constitution.

“Should the CS have been held liable as the executive in charge? Was it even necessary to have adduced evidence? Can Kenyans have confidence in Parliament when it is clear that justice has not been upheld for the farmers?” he asks.

We both rise to leave. At the parking lot, he reminds me that if I forget everything we talked about, I should, at least, write about his ‘mambo matatu.’

It sparked a question about how many hours he put to prepare for the trial. With a hearty laughter, he tells me that for the three days, he stayed up until 3am to study every bit of the claims and counters.

“An 87-year-old still up at 3am?” I wondered.  

Khaminwa’s longevity in practice has earned a special place in the bar. With 54 years under his belt, he is the eldest practicing advocate in Kenya. And he has not lost his charisma and legal acumen. He remains the ever-alert and astute lawyer.

His passion to fight for people's rights has not faded with age. The only lawyer whose seniority matches Khaminwa's is Pheroze Nowrojee, who retired a few years ago.

Another ring from his ‘analog’ mobile phone marks the end of our after-interview.

I leave, but still with questions on my mind about how he reads so well without glasses, how he remembers so many things to precision, why he does not own a smartphone and what makes him stay up until 3am when he has already achieved so much in life.