SUCCESS STORY OF EVERLYNE AGUTU NYAGWA

SUCCESS STORY OF EVERLYNE AGUTU NYAGWA

Ms. Everlyne Agutu (in red dress) at Kituo Head Office after the mediation agreement was signed.

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. Agutu.

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 years.

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 the same.

On 7th 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.

By:

RCKM

Kituo Cha Sheria

SUCCESS STORY OF JOHN MUKOMA

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.

By:-

RCKM

Kituo Cha Sheria

Success Stories-Kodiaga Prison Justice Centre

KODIAGA PRISON JUSTICE CENTER- KISUMU

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…

PARALEGALS’ REPORT 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 remand prisoners.
  • 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:-

ACHIEVEMENTS

  1. 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 pending.
  2. 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 at Kisumu.
  3. 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.
  4. 130 submissions have been written to the Court of Appeal, High Courts and to different Magistrate’s Courts within the region.
  5. We have recorded 24 acquittals in different High Courts within the region as a result of the submissions drafted by our members.
  6. We have recorded 15 acquittals in the Court of Appeal at Kisumu as a result of the submission drafted by our members.
  7. 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.
  8. 32 remanded self-represented prisoners whose cases were managed by the paralegals were acquitted either for no-case-to-answer or at the judgment stage.
  9. We have also made several correspondences with various High Courts within the region whereby status of delayed appeals has been reduced.

Kodiaga 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 Court.

We however, have faced some challenges in the course of our work and the same are highlighted as follows:-

CHALLENGES

  • Due 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.
  • We experience inconsistent supply of stationery like printing papers, foolscaps, note books and pens.
  • Our 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.
  • Lack of a legal expert to support us in technical matters still remains a challenge despite several promises of visitation from CLEAR advocates.
  • Lack of an up dated library to consist of recent precedents.
  • Our 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.

Dated & Signed this 30th Day of August, 2019.

WRITTEN & COMPILED BY: 

KMU/576/12LS

CHARLES ENOS MA KOKHA – SECRETARY

APPROVED BY:

KMU/364/08LS

ELIUD MOSES APWAPO – CHAIRMAN

CERTIFIED BY: 

GEORGE O. DIANG’A (ACP)

OFFICER IN CHARGE

KISUMU MAXIMUM PRISON

Success Story- Meru Prison Justice Centre

SUCCESS STORY- MERU PRISON JUSTICE CENTRE

CLIENT’S NAME: JULIUS KOOME IGWETA

OFFENCE: MURDER- HCCR.NO: 72/2005

CONVICTING COURT: MERU HIGH COURT

DATE OF SENTENCE: 26/05/2006

K.C.A APPEAL NO.164/2011: CONSTITUTIONAL PETITION NO. 12 OF 2016.

CASE PREAMBLE:

Julius 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 disallowed.

Having 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.

Among the issues raised by the petitioner were:

  1. That 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.
  2. That 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
  3. That the petitioner has new and compelling evidence which will be adduced before this court during the time of hearing of this application.
  4. That the petitioner be allowed to recall both PW2 and PW4 to give their testimony as new and compelling evidence.
  5. That 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 Constitution.

In 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.

The 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 Intervention

With 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.

Conclusion

The 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.

On12th 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.

Report Compiled by:

 Joel Katorima

Human Rights Officer-Meru Prison Justice Centre

Success Story of Moses Ndegwa Ngugi

Success Story of Moses Ndegwa Ngugi

Republic vs. Moses Ndegwa Ngugi – Crim. Case No.602/17

Moses Ndegwa (in white t-shirt,center) poses with Kituo members of staff at the Head Office after receiving the ruling. [RCKM].

Moses Ndegwa Ngugi heaved a sigh of relief and shed tears of joy after receiving a positive judgment from the Chief Magistrates’ Court at Gatundu, Kiambu; the Chief Magistrate L. M. Wachira found that Moses had no case to answer and acquitted him under Section 210 of the Criminal Procedure Code. Moses Ndegwa Ngugi was charged with the offence of robbery with violence contrary to Section 296 (2) of the Penal Code.

The facts of the case being that the prosecution alleged that on 1st June 2017, at around 1.15am, the accused person with others not before the court armed with crude weapons namely axes, pangas and craw bars invaded the house of one Lucy Wanja Waiganjo and gained entry into her sitting room after cutting the window grills with an axe and robbed her of her wedding ring, mobile phone make infinix and Kshs.3, 000/- all valued at Kshs.22,700.

The accused was identified in a police parade allegedly based on his voice. Kituo Cha Sheria advocate, Rhoda Maina was on record on behalf of the accused person and during the hearing, the prosecution called 5 witnesses and after closing its case, Ndegwa’s advocate filed her submissions. The Court strongly considered the circumstances of identification as narrated by the witness and in their considered view; circumstances on the night were stressful and not suitable for positive identification of any assailant. The Court further found serious doubts on the evidence on the question of identification of the suspect who had been arrested in a police swoop. The Court concluded that the evidence on record did not put forward a proper case of robbery with violence and if the accussed was to be placed on defence and chose to remain silent; the evidence would not sustain a conviction. Accordingly, the accused was set at liberty and accordingly acquitted under section 210 of the Criminal Procedure Code in a ruling delivered on 12th April 2019.

Mr. Ndegwa, a young man who was staring at a future despair, was ultimately very grateful for the assistance offered to him by Kituo Cha Sheria throughout his journey in the justice system.

This is yet another small victory for a Kenyan who had nowhere to turn to but Kituo Cha Sheria, the people who care for justice for the poor and marginalized people in society.

RCKM

Kituo Cha Sheria

SUCCESS STORY FROM KAMUKUNJI COMMUNITY JUSTICE CENTRE – VINCENT ONANO ONDEGO

Success: Vincent Onano Ondego
Vincent Onano Ondego approached the Kamukunji Community Justice Centre (KCJC) seeking legal advice and possible representation regarding a dispute with his landlord. Vincent Onano Ondego, a humble, middle-aged man with a family of seven children approached the justice centre in 2018, seven years since he’d heard about the services offered by the justice centre.

Sometime in 2011, a friend living with Onano in Nairobi’s Majengo neighborhood had informed him of legal assistance he got from the justice centre in a dispute with his tenant. Mr. Onano had worked as a night guard for much of his adult life struggling with raising his family when he unexpectedly lost his job in 2015. Even with this setback, life had to move on and Onano set up a makeshift ‘kibanda’ on an open space adjacent to his house to start a shoe-making and repair business. Mr. Onano, the cobbler thrived in this area and worked at his station until sometime in August 2018 when he served his landlord with notice to move house. The landlord turned hostile and claimed ownership of the business operation space as part of his property. Onano could not fathom this claim as he had painstakingly built up his premises over time and it was the only source of livelihood for his family.

Afterwards the landlord locked his work station illegally, Onano visited the Kamukunji Community Justice Centre to get assistance. He was directed to the assistant chief who offered authorization for Onano to continue with his work as the kibanda was on a road reserve and not on the landlord’s property. The justice centre also wrote a letter to the landlord asking him to cease the illegal eviction. Armed with the two letters, Mr. Onano went back to continue with his work, however, the wealthy landlord co-opted other local administration officials and police officers to disregard this legal position. Guided by the community paralegals, Onano approached the rent restriction tribunal and filed a claim. The tribunal is established under Section 4 of the Rent Restriction Act, Cap 296, Laws of Kenya and is mandated to determine disputes between landlords and tenants of protected tenancies, which are residential buildings whose rent does not exceed Ksh. 2500.

On 26th November, 2018 the hearing was conducted and Mr. Onano got orders protecting him from eviction even as he self-represented himself with the guidance of the community paralegals. The orders were served to the area police division head for enforcement and after a tedious process of follow-up process, the business premises were opened and Mr. Onano was back in operation. Mr. Onano was very grateful to the Kamukunji Community Justice centre and the community paralegals for walking the long journey with him to protect his rights. A lot of time was lost when his kibanda was illegally closed but now Mr. Onano is a happy cobbler fending for his family and serving the community.

RCKM

Kituo Cha Sheria

SUCCESS STORY FROM KAMUKUNJI COMMUNITY JUSTICE CENTRE – JOSEPH ONYANGO

Success Story: Joseph Onyango
J
oseph Onyango approached the Kamukunji Community Justice Centre (KCJC) seeking legal advice and possible representation regarding a succession matter in his rural home in Siaya County. Mr. Onyango was a founding member of KCBONET, a local Community Based Organization which is the host entity of the Kamukunji Community Justice Centre. He was therefore not new to the work undertaken by the centre. He sought legal assistance on a succession matter undertaken in 2013.

As a resident of Majengo, Nairobi, Mr. Onyango was not aware of the process of succession that was initiated and completed illegally by a member of his family of seven brothers. The area land registrar undertook sub-division without consultation and disinherited some members of the estate. In December 2016, with assistance from the justice centre coordinator Mr. Ezekiel Njenga; Mr. Onyango started the journey of correcting an injustice. They revived and followed up the case at the Siaya and Kisumu Law Courts, for three years they together uncovered a lot of misinformation, lies and forgeries in the succession documents used including fake names and signatures.

Their hard work paid off when the Confirmation of Grant was issued by the Court sitting in Kisumu for the Estate of Mzee Obaki to be re-distributed correctly and involve all members of the Estate. The Court issued orders for the title deeds to be surrendered to the land registrar. The succession process will kick-off on the 31st of January, 2019.

Mr. Onyango says he’s been helped a lot by the community justice paralegals and while the process has been long the family has got another opportunity to do the right thing and be mindful of all family members.

RCKM

Kituo Cha Sheria