The Managing Director, Kenya Ferry Services (KFS);
Civil Society Reference Group (CSRG) is a broad coalition of CSOs, religious
organizations and non-state actors operating in the Coast Region with the core
mandate of protecting and upholding Human Rights.
import of this Petition is raise with you, a number of issues emanating from our
membership and the Community at large about operations of the Kenya Ferry
Services in recent times. We thus look forward to you for responses and solutions
to the same.
is our standpoint that the key business of the Service is transporting
passengers and their property. The same is expected to be done in a manner that
respects Human Rights of commuters, international safety standards and in a manner
that manifests professionalism at the Ferry Service:
such we raise the following concerns:
It is in the public domain courtesy
of your pronouncements at a Parliamentary Committee that three ferries Mv
Nyayo, Mv Harambee and Kilindini are considered out of international standards.
They are considered unseaworthy. It is our position that this is endangering
the lives of commuters and those ferries should be replaced forthwith;
2018, the Auditor General said he could not confirm the accuracy of claims
of the building and supply of two ferries that cost KSh. 2 billion. We
have reports that there are several strands of corruption involving staff
seeking stipends from the public. Yet, we are yet to see prosecution
relating to allegations of this kind. We state that the service should
address this matter with the seriousness it deserves to enhance
accountability and win public confidence.
is the fate of the land of the Kenya Ferry Service that has been grabbed
and is in the hands of private individuals?
The following reported
incidences form part of the account that we consider as looming crisis at
October 26, 2015, eleven people were seriously injured in a stampede at
the channel as hundreds of commuters scrambled to access the ferries.
May 9, 2016, MV Nyayo was pushed by tides off the Likoni channel towards
the deep sea with commuters onboard. It was towed to the inland after
December 15, 2016, GSU officers had to be called in to calm commuters at
the Channel following the breakdown of three ferries. For about five
hours, only MV Likoni was operating. The other three ferries – MV Kwale,
MV Harambee and MV Nyayo – developed mechanical problems and had to be
19th March 2018, MV Nyayo was withdrawn from service after a
technical hitch. MV Jambo was also withdrawn from the channel under
20th March 2018, MV Jambo stalled in the middle of the Ocean.
September 2018, there was heavy traffic at the Likoni crossing channel
after three ferries developed engine problems and broke down.
August 2019, a ferry with over 1000 people almost collided with an oil
tanker. The KFS admitted the fault three weeks later.
It shouldn’t be lost on us that in
1994, MV Mtongwe ferry, capsized just 40 meters from the port. 272 of the 400
people on board died.
consider recent public pronouncements, especially on the recently launched
strategic plan as falling short in addressing urgent commuter concerns. We
hear more about bridges, cable cars, flouting restaurants and by-passes and
not basic security and safety concerns that are here on daily basis.
trends have negative ramifications on investor confidence and pushes the
coastal region to further economic challenges.
of this statement, we state:
The KFS Management should move with
speed to restore confidence in Ferry Services, more sustainable than knee jerk
reactions being observed;
The findings of investigations into
the incident of Amanda and her Mother Mariam be made public and prosecutions
That any other investigations/proceedings
regarding the progress at the ferry include the voice of the public (Commuters)
and findings be shared with the public;
The Kenya Ferry Service should
overhaul the ferries in place and purchase new ones that uphold respect and
dignity of Commuters;
The review of the Strategic Plan to
reflect realities on the ground, specifically on safety of ferry users;
Kenya Ferry Services to hire divers
and train them to International Standards; this should be considered urgent;
The matter of crowding at the waiting
lounge and incidences of sexual harassment, theft, be urgently addressed- compare
the SGR and Airport.
The faulty security apparatus should
be maintained and standards well maintained;
question of the constitutionality of the management of KFS requires rethinking
by policy makers. Unfortunately the Supreme Court threw this out on
intend to have a review meeting after two months to monitor progress on areas
The story of Everlyne
Agutu reads like that of any other middle-aged domestic work woman living in
Nairobi’s informal settlements. She contributes to the country’s economy
performing menial jobs to fend for her family of five; doing laundry,
landscaping and other household jobs in city estates neighbouring her
Kawangware home. This was the routine for the five years Ms. Agutu lived and
worked in Nairobi until January 2008 when she entered into an oral contract of
service with a gentleman to work in his Lavington residence. Based on the oral
contract; the house help salary of Ksh. 4,000 was a major milestone for Ms.
She was comfortable with
the certainty of monthly income and diligently performed all tasks expected of
her with utmost loyalty. Testament to the dedication of most Nairobi domestic
workers; working conditions not withstanding; Ms. Agutu went about her work
without fuss and her monthly salary was progressively revised upwards, first to
Ksh. 7,000 and up to Ksh. 13,000 in 2013. This source of income was regular,
predictable and good enough to sustain Ms. Agutu and her family for all these
The domestic work sector
in the Kenyan economy is not properly regulated yet it plays a key role in
economic growth and development, and is a major source of employment in urban
and peri-urban areas. Domestic workers perform a range of services and tasks
including cooking, cleaning, laundry, child care, elderly care and others as
assigned. But despite performing these essential services for the well-being of
families and the smooth functioning of the national economy, they have long
been ignored in labour legislation and social policy.
Kituo Cha Sheria is dedicated
to the welfare of persons like Ms. Agutu and we recognize that the law on
domestic staff is clear, and simple! Yet the breaches of it are abundant. After
working for over 11 years in one household, Ms. Agutu was unlawfully terminated
on 16th June 2019. Sadly, in Kenya this is the fate of a majority of
domestic workers especially in Nairobi, Kisumu and Mombasa- employers quote all manner of reasons for unfair
termination- including poor performance, misconduct, petty theft, etc.
Luckily Ms. Agutu was
aware of an organization that exists to take care for justice for the poor and
marginalized people in society- she approached Kituo Cha Sheria for legal
advice and possible instructions in August 2019. Our legal officer Odero
Ramdhan took up the matter and computed terminal dues for Ms. Agutu for the 11
years and 7 months she had worked; the employer was served with the demand for
November, 2019 Everlyne Agutu and her former employer entered into an agreement
on the mode of payment of her full terminal dues in monthly installments. This
matter was resolved without recourse to the legal system- through negotiation
and all parties were satisfied with the outcome. Ms. Agutu is back to working
menial jobs but with the satisfaction that her labour rights were not violated
thanks to Kituo cha Sheria.
Kituo remains committed to helping the disadvantaged, poor and marginalized people in Kenya access justice. We will continue to empower the poor and the marginalized communities and peoples on their human rights and to create avenues for these individuals to effectively access and enjoy these fundamental entitlements.
and safety health laws refers to collection of constitutional, statutory and
customary standards and obligations meant to ensure safety in the work place.
This is a traditional and pivotal part of employee welfare program. It is
engrained in the principles of labour relations. The idea that for employees to
optimally be productive, there is need to make the working environment safe and
accessible. Legally, international instruments such as Article 7 of the
Convention on Social Culture and Economic Rights provides that employees inter alia are entitled to safe and
healthy working conditions. The ILO has also come up with over fifty instrument
all dealing with different aspect of safety at work.
statutes distinctively deal with safety to prevent deaths, accidents and
therefore work related disabilities. The Constitution of Kenya 2010 is silent
when it comes to occupational safety and health in general. However, the Occupational
Health and Safety Act, 2007 breaks down the issues that constitute occupational
health and safety law. These include: rights and duties with regards to
occupational health and safety, creation of an administration office to
implement the Act, health safety, chemical safety, amongst others.
paper is however concerned with three issues;
Are occupational health and safety laws part of disability rights?
How are occupational health and safety laws fused into disability laws and what’s the jurisprudence thereof
What is the way forward and best practice?
Health and Safety as a Disability Rights
Rights may be defined as those distinct rights elaborating sufficient standards
of protection for civil, cultural, social and economic rights for persons
living with disabilities on the basis of inclusion, equality and
non-discrimination. These Rights were born out of the realization that persons
with disabilities though are a part of the general population and social fabric;
face unique challenges and situation that require legislative interventions.
are occupational health and safety laws disability laws? The answer to this is
in the affirmative. Persons living with disabilities form part of the workforce
and therefore need specific needs with regards to occupational safety and
health. There is need to make a distinction that while the general laws are
meant to prevent and protect against disabilities- occupational safety and health as a disability is after
the welfare and safety for persons with disabilities. It ideally asks the
employees to ensure that their places of work are not only disability friendly
Health and Safety within Disability Law
laws in the Kenyan context consist of the Constitution of Kenya 2010,
Convention on the Rights of Persons with Disabilities and Persons with
Disabilities Act No. 14 of 2003. Having established that occupational health
and safety is an integral part of disability rights. It is important to interrogate
if this is covered in the disability laws. Disability Rights are given a spotlight in
Article 54 of the Constitution of Kenya 2010. While the supreme law does not directly speak
of occupational health and safety, the law requires employment of 5% of persons
with disabilities to every appointive and elective position.
Constitution of Kenya 2010 also reiterates the obligation to treat persons with
disabilities with dignity. This in no uncertain terms means inclusivity and
therefore boils down to access and safety at the work place. In addition to
this, access and free movement for persons with disability is also a key element
of Article 54.
Convention on the Rights of Persons with disabilities which is part of the laws
of Kenya pursuant to article 2 of the Constitution 2010, gives member states an
obligation to ensure that persons with disabilities have access in the work
place; are appreciated for their skills in the labour market and work in a safe
environment. The Parent Act- the Persons with Disabilities Act, just like the
Constitution of Kenya; while it touches on related provision on work, access
and the standards of public building; it is silent on matters of safety at work
with regards to persons with disabilities.
about Jurisprudence from the Courts?
lot of matters regarding disability rights and mainstreaming have been canvased
within the legal system since the promulgation of the Constitution of Kenya in 2010.
There is however very little jurisprudence on the matter of occupation health
and safety for persons with disability. The prevailing attitude is one looking
at these provisions as preventive of disability but not rights for persons with
disabilities. Is there a lacuna in the
Which Way Forward?
Convention on the rights of persons with disability promotes integration and
disability mainstreaming. This means having an inclusive look in every aspect of
life for a person with disability. While prevention is key, disability laws
majorly focus on those with disabilities. Occupational health and safety laws
would therefore ensure that these persons are safe at work and are able to be
productive in spite of disability.
therefore propose the following interventions: –
There is need to change
the attitude on disability. Kenya has to start looking at persons with
disabilities as an integral part of the society. I therefore propose an
integral and inclusive way of looking at the law and resultant jurisprudence.
interventions- there’s need to amend the parent disability statute to include
matters of welfare, health and safety in the workplace for PWDs.
There is also need to
have awareness in this subject. Create rules and regulation- subsidiary
legislation that touches on specific hazards are meant to protect the
vulnerable such as PWD’s in case of emergencies at the place of work.
Mr. John Mukoma had
decided to be generous enough to donate 2 acres of his land to his brothers as
part of the inheritance share his late father was to divide among his sons. Mr.
Mukoma, who had already acquired some land next to his father’s saw it fair to
contribute to the share of land his brothers, who had none, would get. His
generosity was however to be abused by his brothers who decided to turn against
him and demand for more from their brother after the death of their father.
Things got worse when his
brothers turned to violence against Mr. Mukoma and got beaten to near death
prompting him to seek legal redress to solve the issue. Mr. Mukoma looked for a
city lawyer to help him file a criminal suit in 1998 but would later drop him
after he left the country.
Mr. Mukoma would later
hear of Kituo Cha Sheria on radio in 2001 and sought the organization’s help. After
visiting Kituo and having his case taken up by Kituo, the plaintiff sought
orders from the court barring his brothers Michael Kabiti, Josiah Mburu and
Patrick Njubu as 1st, 2nd and 3rd defendants
from laying claim to the parcel of land and stop the encroachment. He was able
to prove to the court that he was the rightful owner of the suit parcel of land
No. Gatamaiyu/Kamburu/714. The defendants claimed that Mr. John Mukoma was only
holding the land in their trust, a claim that was challenged by the plaintiff.
After a long court case
characterized with notable no-shows from the defendants, John Mukoma would
later breathe a sigh of relief after the court granted his wishes on 7th
April 2003 declaring that the plaintiff had proven that he owns the land and
does not hold the suit property in trust. The magistrate also questioned why
the defendants would wait for the death of their father to claim.
However, the defendants
would later file an appeal seeking to set aside the judgment of April 2003. The
application was canvassed before Justice Nambuye J (as she was then) and a
ruling was delivered on 24th April 2008 where the initial judgment
of 2003 was set aside and the defendants were granted an opportunity to appear
in court and present their evidence. However, the matter came up severally in
court and the defendants together with their advocates were always absent even
after being served with court papers. In view of this, the plaintiff’s evidence
was not challenged and the court asked for further supporting documents.
The case was therefore
heard in the absence of the defendants and the court upheld that Mr. Mukoma was
the rightful owner of the parcel of land while also finding the defendants
guilty of trespass and ordered awarded the plaintiff KSH. 500,000 in damages.
The judgment was delivered at the Environment and Land Court at Thika by Judge
L. Gacheru on 24th May 2019.
Mr. Mukoma expressed his gratitude to Kituo and particularly to Mr. Kivungi, Advocate Mwariri and Boniface Muinde for walking with him throughout the court case period. Indeed, justice is the tolerable accommodation of the conflicting interests of society, and I don’t believe there is any royal road to attain such accommodation concretely- Judge Learned Hand.
& GIZ-CPS Kenya: On Friday, 20th September 2019,
Kituo Cha Sheria and GIZ-CPS Kenya celebrated a 10-year partnership in promoting
access to justice for the most vulnerable people in Kenya. The colourful evening
event took place at the Desmond Tutu Conference Centre, Nairobi. The Civil
Peace Service (CPS) has been supporting civil society partner organizations in
Kenya since 2009 – and in recent years increasingly also governmental partner organizations.
KITUO is a long-term partner of GIZ-CPS Kenya; we are honoured to be among the
initial partners GIZ-CPS Kenya engaged with in 2009. Together, Kituo has implemented
3 projects- the Peace Justice and Reconciliation Project (PJRP); the Alternative
Justice Systems (AJS) Project and the Mental Health and Psycho-Social Support
(MHPSS) Project with great successes. Kituo Cha Sheria’s partnership with GIZ
began in 2010 with the Peace Justice and Reconciliation Project which was
informed by the need to review the structures of governance as they relate to
security, human rights, the rule of law and democracy after the 2007/2008
Kenyan post-election crisis. The project was to ensure many Kenyans,
participate in the Transitional Justice Mechanisms, by facilitating effective
community representation and participation. KITUO and GIZ-CPS have since
collaborated in the implementation of Alternative Justice Systems which
are mechanisms of solving disputes or/and conflicts between parties
without recourse to the courts. The methods used in the AJS processes include
mediation, negotiation and where ever possible reconciliation. Through AJS, the
conflicting parties are brought together to dialogue and agree on a voluntary
basis in order to forge a way forward. Kituo Cha Sheria and GIZ have worked together since 2017 in providing
mental health and psychosocial support to refugees in urban areas through the
Mental Health and Psycho-Social support Services (MHPSS) which is under the
Forced Migration Program. Speaking at the 10th Anniversary celebration;
Mr. Justus Maithya Munyithya, Advocate and the Chairman of Kituo’s Board
of Directors lauded CPS-Kenya for their support and the focus on peace
journalism, alternative dispute settlement and on establishing dialogue
structures that encourage people to resolve conflicts without violence. Kituo was
also represented at the evening event which started with a market expo by officers
Tobias Mwadime, Martha Ogutu, Jane Corazon, Charity Wangui, Roy Kiarie and Shem
Friday, 20th September 2019 we celebrated a 10-year partnership in promoting
access to justice for the most vulnerable people in our society. KITUO is a
long-term partner of GIZ-CPS Kenya; we are honoured to be among the initial
partners GIZ-CPS Kenya engaged with in 2009.
we have implemented 3 projects- the Peace Justice and Reconciliation Project
(PJRP); the Alternative Justice Systems (AJS) Project and the Mental Health and
Psycho-Social Support (MHPSS) Project with great successes.
PEACE JUSTICE AND RECONCILIATION PROJECT (PJRP)
Kituo Cha Sheria’s
partnership with GIZ began in 2010 with the Peace Justice and Reconciliation
Project which was informed by the need to review the structures of governance
as they relate to security, human rights, the rule of law and democracy after
the 2007/2008 Kenyan postelection crisis. The project was to ensure many
Kenyans, participate in the Transitional Justice Mechanisms, by facilitating
effective community representation and participation.
Kituo with the partnership
of GIZ-CPS Kenya worked with the Truth Justice and Reconciliation Commission
(TJRC) and the International Criminal Court (ICC) to address historical
injustices and post-election violence; advocated for an IDP policy and
legislative framework. PJRP made a contribution to strengthening human rights
and good governance to ensure increased access to justice through legal
intervention and advocacy.
KITUO in its mission to
offer legal aid, empower and represent poor and marginalized individuals and
groups in Kenya decided to support these efforts to deal with the past and to
promote Kenyans’ transitional justice agenda. In line with this vision, PJRP
aimed at ensuring victims’ participation in the Transitional Justice mechanisms
available in the country and the promotion of rights of victims of violence in
PJRP particularly targeted
Internally Displaced Persons (IDPs) and other post 2007/8 general elections
violence victims. The overall goal was to ensure effective and meaningful
inclusion of the key target group in the then ongoing truth and justice
processes as well as to establish a referral mechanism to improve their
KITUO worked closely with
the survivors and relevant stakeholders from the grassroots to the national
level in developing policies and promoting Peace, Justice and National Reconciliation.
PJRP assisted the TJRC to reach out to victims groups all over the country; the
victims gave statements to the TJRC and informed them about the intervention of
the International Criminal Court (ICC).
Moreover, PJRP advocated
in order addressing historical injustices and post-election violence for
domestic accountability as well as for an IDP policy / legislative framework.
PJRP played an active role
in ensuring community awareness and victim participation and collaboration
among civil society engaged in the process. KITUO pushed for the adoption of
the national IDP policy, ratification of the Kampala Convention and enactment
of necessary legislation. KITUO was actively involved in the promotion of the
IDP Act and cooperated therefore with the Parliamentary Committee for Internal
contributed through advocacy and training to strengthen human rights and good
governance, to ensure increased access to justice through legal intervention.
contributed in drafting of the National IDP policy which provided an avenue for
legal protection of IDPs.
also contributed to empowering victims to participate in the Transitional
Justice Mechanisms in Kenya through legal aid, advocacy and community outreach
through the project joined various networks for its intervention on Internal
Displacement issues with the then Ministry of Special Programmes, Ministry of
Justice, National Cohesion and Constitutional Affairs (MOJNCCA), National
IDP-Network Protection Working Group, especially United Nations High Commission
for Refugees (UNHCR), IDP self help groups in urban settlements, Nairobi
Peoples Settlement Network (NPSN), Kenya National Commission on Human
Rights(KNCHR) among other organizations, together with other CBOs in Nyanza,
Rift Valley, Western and Nairobi Provinces.
became a member of the Truth Justice Network Kenya and re-activated
KITUO’s membership in the Kenya for
Peace Truth and Justice Network. KITUO initiated the creation of an ICC-sub-working
group which meets regularly and effectively coordinates its activities.
was represented at the NGO roundtable of the International Criminal Court in
‘’A community is
democratic only when the humblest and weakest person can enjoy the highest
civil, economic, and social rights that the biggest and most powerful possess.”
ALTERNATIVE JUSTICE SYSTEMS PROJECT
Since the 1992 General Elections, there was and remains a possibility of
Post Election Violence (PEV) re-occuring. This unfortunate cycle of PEV needs
as much as possible to be mitigated so that its recurrence is reduced or
stopped altogether. Post Election Violence (PEV) has led to various obstacles
like massive loss or destruction of property especially land as well as other
serious forms of violence.
Considering the adversarial formal Justice system, the communities deserve
a judicial mechanism that fosters forgiveness, peaceful co-existence and
justice considering the status quo.
This can be achieved through an Alternative Justice System mechanism. Alternative Justice System (AJS) with a
participatory approach incorporates dialogue, trust building as well as
capacity building in order to address in an appropiate setting, the past, the
present and possible future conflicts inorder to establish a mechanism that
allows people to reflect on issues involved and herewith establish a system
that leads to a more peaceful co-extience.
KITUO and GIZ-CPS have since
collaborated in the implementation of Alternative Justice Systems which
are mechanisms of solving disputes or/and conflicts between parties
without recourse to the courts.
The methods used in the
AJS processes include mediation, negotiation and where ever possible
reconciliation. Through AJS, the conflicting parties are brought together to
dialogue and agree on a voluntary basis in order to forge a way forward.
The Alternative Justice Systems (AJS) Project mechanism
model is made up of Commissioners and Adjudicators.
Commissioners include the victims, offenders, elders, and representatives
of organizations in the society. The work of the commissioners is to create AJS
awareness or rather outreach in the community.
On the other end, Adjudicators comprise only of respectable and people of
high moral standing in the society who are neither IDPs nor Offenders.
Both commissioners and adjudicators are nominated by the community. The
work of the adjudicators is to facilitate using various conflict resolution mechanisms
like, mediation, negotiation and other techniques, in order for the disputing
parties to reach an amicable solution to their dispute.
Alternative Justice Systems derives its authority from Article 159 (2) (c) of the Constitution of Kenya, which states “….alternative
forms of dispute resolution including reconciliation, mediation, arbitration
and traditional dispute resolution mechanisms shall be promoted subject to
KITUO, through the project
has conducted training of Commissioners and Adjudicators as paralegals and were
trained on land, property, and succession laws to empower them in promoting
reconciliation in the community by settling more PEV related and community
disputes in different areas that were greatly affected by the 2007/2008
post-election violence especially in the Rift Valley and former Nyanza
Some successes, so far, of the Alternative Justice Systems (AJS) project
with Future Perspectives include:-
Establishment of an effective Alternative Justice
Establishment of a community sensitive approach
that promotes sustainable reconciliation initiatives as well as future
orientations on peaceful cohabitation for the IDPs and the (host-) communities.
Provision of a safe space for interaction of
IDPs, stakeholders and the host communities with a holistic approach, which
allows all actors to address issues leading to more peaceful co-existence.
Through the AJS Future Perspective Training,
the IDPs have identified
their strengths as well as capacity that will help them transform into a stage
of self-mobilization in order to break the cycle of re-victimization.
A functional and skilled team of commissioners
has been established in accordance to the AJS mechanism.
The IDPs and the (host-) communities are
comprehensively familiarized with the methodologies of conflict resolution that
the AJS mechanism uses, that is mediation and negotiation.
The IDPs and the (host-)
communities have obtained the knowledge of legal structures in place.
KITUO’s AJS Taskforce has
also established networking structures for the IDPs and the (host-) communities
from the sub-county to the national level in order to initiate collaborations
with other official structures and NGOs.
KITUO’s partnership with
GIZ-CPS Kenya; has made it possible for the AJS Taskforce to realize acceptance
by the Judiciary through presentations made to Magistrate, Court Registrars,
Civil Procedure Rules Committees and Court Users Committees.
KITUO through the project
has demonstrated that AJS is relevant to the Judiciary’s Transitional Framework
as it will reduce the backlog of civil cases at the court by dispensing prompt
The idea of AJS mechanism
has been received positively by all the stakeholders involved but most
importantly by the communities due to the advantages it has over the formal
judicial system in dealing with civil cases. The formal judicial mechanism is
largely adversarial, too costly, uncertain (power relations) and takes too much
time before arriving at a solution.
It is only Alternative
Justice Systems (AJS) that fosters forgiveness, reconciliation, prompt Justice
as well as the possibility for the individual and community to reflect on the
various levels of violence including structural violence. For instance, there
are already requests from other IDP communities like the Go-down and Chepchoina
IDPs who would like to be included in the AJS project moving forward.
MENTAL HEALTH AND PSYCHO-SOCIAL SUPPORT (MHPSS) PROJECT
Cha Sheria and GIZ have worked together since 2017 in providing mental health
and psychosocial support to refugees in urban areas through the Mental Health
and Psycho-Social support Services (MHPSS) which is under the Forced Migration
THE (MHPSS) PROJECT
MHPSS program at Kituo cha Sheria is part of urban refugee MHPSS working group
comprising of UNHCR, RCK, HIAS, DRC, CVT, ReFuShe, NCCK, Hesed Africa, AAA, MSF
and REFUGE POINT. The program is also an active member of SGBV (sexual gender
based violence) and IPPL (integrating psychosocial peace and legal) working
focus is on refugees and the host community with emphasis on mental health
awareness creation, individual counseling, group counseling, community forums,
training of key stakeholders like the police, judiciary and other government
officials on the mental health concerns among the persons of concern (refugees
and host community). In addition, the program offers self care and team
training to the Kituo staff and has been of support to the team in terms of
debriefing and emotional support.
With refugees prone to psychological trauma due to the challenges they encounter pre-migration, during migration and post migration and psychological trauma and related issues like depression being leading causes of ill health and disability worldwide, KITUO and GIZ found it necessary to create a program which offers mental health support to the KITUO staff and urban refugees in particular with some exceptional cases from the host community.
Article 48 of the Constitution of Kenya specifically advocates for access to justice for all. Kituo Cha Sheria has established Prison Justice Centres that are managed and run by trained prison paralegals to assist them self-represent in court, offer legal advice to the other inmates, educating them on criminal law and guiding them on how to confidently represent themselves in Court and empower the entire prison community. Kituo has played a big role in supervising these centres and providing technical assistance in legal matters that need the attention of an advocate. To date, Kituo has established Prison Justice Centres at Shimo La Tewa Men & Women Prisons, Lang’ata Women’s Prison, Kamiti Maximum Prison, Kodiaga, Nyeri Main (King’ong’o) G.K. Prison, Kakamega GK Prison and Meru GK Prison. As a result, inmates and Prison Officers have been able to offer legal aid services to inmates and from 2010 to date 12,000 + inmates have been released following interventions by trained paralegals. The Prison justice centers have significantly contributed to the decongestion of prisons and at the same time made justice accessible to those who could not afford the services of an advocate.
This a report presented during the Access to Justice Day Celebration at the Kodiaga Prison Justice Centre…
ON PRISONER’S ACCESS TO JUSTICE DAY
We feel humbled to
have you here today as we celebrate this year’s prisoner’s justice day. Kisumu
justice center was established in the year 2015 after a training of 30
paralegals including 5 prison staff courtesy of KITUO CHA SHERIA who partnered
with other organizations such as ICJ, HAKI MASHINANI, KNCHR and LEGAL RESOURCES
FOUNDATION. We have today become the pillar of justice in prisons within the
entire western region. Prisoners enjoy free legal advice as well as case
management in terms of erecting sound grounds for their defense cases and
drafting their petitions of appeals to the appellate courts and submissions and
as a result, many have regained back their freedom.
We therefore wish to
register our sincere appreciations to KITUO CHA SHERIA and their partners for
having thought it wise to enjoin us in their vision of making justice
accessible to all.
Today, Kodiaga Prison
Justice Center-Kisumu is glad to report that a positive impact has been
realized by prisoners within the entire western region as far as accessibility
to justice is concerned. Expeditious determination of trials and appeals are
among the reasons why, today, we celebrate this prisoner’s justice day. We
attribute the gains that are being enjoyed by the otherwise considered society
misfits to the interventions made by organizations such as KITUO CHA SHERIA,
ICJ, HAKI MASHINANI, KNCHR and LEGAL RESOURCES FOUNDATION among others.
Our roles as
paralegals at the Kodiaga Prison Justice Center-Kisumu include:-
Advising and enlightening all
prisoners in matters of law.
Draft petitions and notices of appeal
as well as submissions for convicted prisoners.
Managing cases for unrepresented
Sensitizing all prisoners of their
fundamental rights as enshrined in the constitution.
Offer orientation to newly convicted
inmates and bring them up to speed with their obligations as per the prison
rules and regulations
Draft inquiry letters elating to
appeals for prisoners to different court registries.
Act as a link between fellow inmates
and the prison administration.
As a result of our
work, we have managed to register remarkable achievements in the last one year
and the same include:-
A total of 154 petitions of appeals have been lodged to various High Courts within
the region with some of them already heard and determined while the others are
We have managed to lodge 139 notices of appeal to different High
Courts within the region for intending petitioners to the Kenya Court of Appeal
We have done 101 petitions for re-sentencing to various High Courts within the
entire western region with some of them already heard and determined while the
others are pending.
submissions have been written to the Court of
Appeal, High Courts and to different Magistrate’s Courts within the region.
We have recorded 24 acquittals in different High Courts within the region as a
result of the submissions drafted by our members.
We have recorded 15 acquittals in the Court of Appeal at Kisumu as a result of the submission
drafted by our members.
We have recorded 21 reductions of sentences from submissions done by our members in
various High Courts within the region and the Court of Appeal at Kisumu.
remanded self-represented prisoners whose cases were managed
by the paralegals were acquitted either for no-case-to-answer or at the judgment
We have also made several correspondences
with various High Courts within the region whereby status of delayed appeals
has been reduced.
Prison Justice Center-Kisumu also hosted the President of the Court of Appeal Hon.
Mr. Justice William Ouko and we were accorded an opportunity to present
our clients’ grievances and have the same addressed with several petitioners being
issued with notices to attend court for case management and hearings. The Judiciary
in Kisumu also promised to be making regular visits to the prison to address challenges
facing prisoner’s cases and expedite matters; this was partly thanks to the good
work done by our prison paralegals in presenting quality written submissions to
however, have faced some challenges in the course of our work and the same are
highlighted as follows:-
to the increased workload as a result of the facility’s Maximum Security status
holding inmates serving long term sentences from the entire western region, our
single computer (Desktop) is highly overwhelmed hence a need for an additional
one. We also have a challenge with our HP LaserJet printer which often runs out
of the toner and maintaining the same is untenable due to inconsistent funding.
We wish to request that your office deem it fit to provide us with another
model, preferably EPSON L220.
experience inconsistent supply of stationery like printing papers, foolscaps,
note books and pens.
team is lacking motivation in terms of personal effects such as toiletries,
tooth paste, soap and others. We wish to urge your office to consider providing
us with consistent supply of the same to boost our morale in providing the
services on pro-bono basis.
of a legal expert to support us in technical matters still remains a challenge
despite several promises of visitation from CLEAR advocates.
of an up dated library to consist of recent precedents.
strength has gone down to 14 against the initial 25 due to transfer to other
prisons for the purpose of hearing of their appeals while some have been
released on completion of their sentences and successful appeals or petitions.
We wish to request your office to consider training more paralegals.
K.C.A APPEAL NO.164/2011: CONSTITUTIONAL
PETITION NO. 12 OF 2016.
Koome Igweta was charged with the offence of Murder C/Sec203 as read with Sec 204 of the Penal Code. The
particulars of the offence were that on 12thday of August, 2005 at
Giatune Sub- Location, Mpuri location in Meru Central killed Dorcas Kaguri. The
trial court convicted and sentenced the accused to suffer death as the law
provides. Aggrieved and dissatisfied by the decision of the trial court the
appellant exercised his rights of appeal within 14 days by appealing to the Court
of Appeal in Nyeri vide K.C.A.No 164/2011.
Through a judgement that was delivered on 24thJune 2016 the same was
exhausted all appeal avenues the petitioner filed a constitutional petition under
Article 50 (6) of the Constitution of Kenya 2010 seeking leave to move the
court on matters of New and Compelling Evidence. This was barely two months after
the dismissal of the appeal.
the issues raised by the petitioner were:
the petitioner has suffered both physical and psychological torture for being
deprived the right of life arbitrarily contrary to, or in breach of Article
26(1)(3) of the Constitution of Kenya.
the law was not fully observed when convicting and sentencing the petitioner,
which denied him access to Justice thus breached the provisions of Article 48
of the Constitution of Kenya
the petitioner has new and compelling evidence which will be adduced before
this court during the time of hearing of this application.
the petitioner be allowed to recall both PW2 and PW4 to give their testimony as
new and compelling evidence.
the Mandatory Death Sentence meted
to the petitioner was excessive, arbitrary and inhuman, and deprived the
petitioner’s right to a fair trial contrary to Article 50(2) of the
the end the petition which was before Hon.
Justice Said Chitembwe partly succeeded as follows:
There was No New and Compelling
Evidence to warrant having a retrial,
That the death sentence meted out
to the petitioner is set aside.
The petitioner shall serve twenty
(20) years imprisonment and that the sentence shall run from 10th November, 2005 up to the
date the sentence is completed in 2025.
sentence expiry date being already defined; the appellant was unable to benefit
from the Remission of sentence by
the prison authority.
Paralegal and Human Right Officer
the knowledge that the jurisdiction to adjudicate and determine the issue of
remission of sentence falls within the sole purview of the Kenya Prison Service
as per section 46(1) of the prisons Act
(Cap 90 Laws of Kenya) which gives prison
authorities the power to grant remission of sentences based on good character and industry. Following
his character and good conduct, the petitioner deserved remission to his
sentence as per the above section. Since the judgment delivered on 1/10/2018 limited the prison authority from exercising
this mandate as it defined the expiry date of the sentence as it stated that
the sentence shall run from 10thNovember,2005 up to the date the
sentence is completed in 2025; the Human Rights Officer Mr.Joel Katorima,
through the officer in-charge MeruG.k prison, took the initiative of writing to
the Deputy Registrar Meru High Court seeking
clarification in respect to the petition and advice on how to harmonize it with
the provisions of the Prisons Act as stated above.
indefatigable efforts of the Officer In-Charge
Meru Main Prison- A.C.P. David W. Ndumu and the Human Rights Officer attracted the
unbiased assistance of the office of the
DeputyRegistrar, the office of the D.P.P,
who in turn consulted the higher authorities involved and got a positive
response in favor of the petitioner.
July 2019 a Production
Order was issued by Meru High Court instructing the Officer In-Charge to
produce the petitioner in question before Meru High Court. The petitioner with
the basic knowledge of paralegalism explained himself to the learned
judge,Hon.Said Chitembwe who delivered a judgement in favour of the petitioner
as it reads “The judgement which was delivered
on 1/10/2018 is hereby reviewed. The appellant to serve twenty(20) years
imprisonment from 10/11/2005 and the petitioner to be entitled to remission
under the prison laws”. The matter is
now a success story in that the judge rectified the apparent error and allowed scope for the prison authority to institute
remission of sentence by undoing the definition of the expiry date of
sentence from the judgment. As at now, the
appellant is reintegrated back to the society having benefited from the
remission of sentence.