In 2005, everybody forgot that Lucy Kibaki had right to peace

Mrs Lucy Kibaki’s storming of Nation Centre on that fateful Tuesday night of May 3, 2005, was the last act in a chain of events that began four days earlier in an environment of biased media reporting.

On the Friday night of April 29, she had gone to the house of her neighbour, Makhtar Diop, on Tchui Road in Muthaiga, Nairobi, to stop loud music.

She was exercising her right of self-help, a remedy recognised in law. Those who criticised her, including the media, ignored her basic right to the quiet enjoyment of her property.

She was trying to abate a nuisance, to stop the commission of a tort against her rights. What she tried to do, in private law, is the equivalent of the citizen’s right of arrest to stop the commission of a crime.

Mr Diop, a Senegalese and the then outgoing World Bank country director, was hosting a farewell party at the end of his tour of duty.

The party had gone on well after midnight and the music was too loud for her to sleep. It was a “wild” party, taking place in an upmarket residential area.

Mrs Kibaki had gone to Mr Diop’s house three times to complain about the noise.

In her last attempt, in the small hours of the morning, she is reported to have shouted at Mr Diop that he could not be allowed to disturb her peace just because he was leaving the country.

“This is Muthaiga, not Korogocho,” she said. Mrs Kibaki was right. This was a clear case of actionable nuisance.

NEWSPAPER HEADLINES

The Sunday Nation, on May 1, reported that she had “gate-crashed” the party. The headline was “First Lady disrupts Diop’s party”, followed on May 3 with the headline in the Daily Nation, “First Lady storms Nation Centre”.

The Standard reported the story on May 2, with the banner headline, “Shame of First Lady”. And a Daily Nation editorial on May 4, “First Lady: Who’s in charge?” was not particularly sympathetic to the rights of Mrs Kibaki.

It said, in part: “While the issue of the First Lady’s actions over the past few days have become a hot talking point in Kenya and beyond, it goes beyond analysis of a temperamental individual to wider issues of security, protocol and the behaviour expected of people holding high office.”

However, a story by Njeri Rugene, “Lucy: Kenyans don’t understand my role”, allowed the former First Lady to give her side of the story. The band’s equipment, she said, had been hidden “somewhere in the garden” only to be fixed at night, next to her fence.

Even when they obeyed her demand to lower the music volume, they moved into the house where they resumed playing loudly, she said.

“I told them to pack up the band and play normal music, but they refused. They packed up the band and continued with loud music inside the house. I sat outside by my swimming pool until 4am because I could not sleep.”

RIGHTS INFRINGED

Earlier media reports seemed to suggested that Mrs Kibaki lost her rights for the simple reason that she was the First Lady.

However, if her rights were, in fact, infringed, the media, and anybody else, should not have expected her to wait until the following morning to go court to obtain an injunction. That would have been futile.

What she did is the equivalent of trying to expel a trespasser without having to wait for the court to authorise it.

Self-help is an acceptable remedy in these types of civil wrongs, provided there is no unreasonable use of force.

From what was reported, Mrs Kibaki did not use any unreasonable force.

Everybody, including the First Lady, is entitled to the quiet enjoyment of his or her property. This is what the media forgot to put in context in their reporting of the drama.

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