The man who had shortest stint as CJ

At 39, Kitili Maluki Mwendwa became Kenya’s youngest — and first African — Chief Justice, but he also went down in history as the man who served the shortest term in office.

Three years after he landed the job, he resigned following accusations that he was part of a military plot to overthrow the government of founding President Jomo Kenyatta. MP Gideon Mutiso and the then army commander, Brigadier Joseph Ndolo, were also linked to the coup plot.

Mwendwa was born an “aristocrat” on December 24, 1929, his father having been a paramount chief. And in 1968, he was appointed the CJ after the retirement of the then acting Chief Justice Arthur Dennis Farrell. When he left the Judiciary three years later, he was succeeded by Sir James Wicks.  

In the 1960s and 70s, Mzee Jomo Kenyatta’s administration appeared politically vulnerable and Mwendwa’s appointment was seen as part of a wider scheme to have the Judiciary play a part in fulfilling Kenyatta’s political ideals.

His predecessor, Mr Justice Farrel, was retired after he reduced the sentence of Bildad Kaggia from one year to six months. Kaggia, one of the Kapenguria Six, had been jailed for holding a political meeting without a licence. When he appealed, Mr Justice Farrel and Mr Justice Dalton upheld the conviction but reduced the sentence to six months.

The day he delivered the ruling, Mr Justice Farrel was sent packing while Mr Mwendwa was appointed CJ. Until then, anyone acting as CJ would have been confirmed to the position.

The then powerful Attorney-General, Mr Charles Njonjo, is said to have persuaded Kenyatta to appoint Mwendwa as CJ after a stint as the Solicitor General. He was seen as a good bet to Africanise the Judiciary.

Asked to comment on Mwendwa, Njonjo was then quoted in a local daily, saying he was an eccentric man who had a passion for vintage cars and drove at high speeds.

The man from Matinyani village in Kitui chose his associates carefully. However, although he would hobnob with presidents and rich businessmen, he would also be found in lowly places.

When he took over as CJ, the High Court had 11 judges who included Justices Farrel, Sir James Wicks, Chunilal Madan, Chanan Singh, Cecil Miller and Alfred Simpson.

It had been widely expected that Kenyatta would appoint Chanan Singh or Chunilal Madan given their successful legal and political careers and having participated in the struggle for self-rule.

“In my view, the two would have been likely candidates for appointment,” said a lawyer in a posting at the Kenya Jurist on September 2010. “The question one would ask is: Why would Kenyatta appoint his young Solicitor General, without judicial experience, to be the Chief Justice?

A shrewd businessman who operated a bus service even when he became the CJ, Mwendwa was said to have been an intelligent man who would listen to evidence in court without recording the proceedings. But this, according to legal experts, was suicidal as an appeal requires scrutiny of the entire recorded proceedings.

His short span as CJ was insufficient to gauge his intellectual qualities.

However, one of the most conspicuous criminal cases Mwendwa presided over and which became a matter of serious debate as an authority in determining subsequent suits, was the famous Republic vs El Mann case of 1969.

According to the facts of the case, El Mann was charged before a resident magistrate with contravention of the Exchange Control law.
El Mann moved to the High Court to challenge the constitutional validity of a provision of that Act.

The case revolved around the meaning and interpretation of section 27 (1) of the Constitution which provided that “No person who is tried for a criminal offence shall be compelled to give evidence at his trial.”

The court had two choices to make; It could have adopted a narrow interpretation that would limit the compulsion to the trial itself or it would take a more expansive view that the compulsion included acts prior to the trial in order to give the legal protection full meaning.