Ex-intelligence boss Mwangi Muriithi's failed bid to get justice

Before he fell from grace, Mr Stephen Mwangi Muriithi had assumed that he was an ally of President Daniel Moi. After all, he was the deputy director of intelligence — a position that gave him access to the top secret inventory.

For the last few years however, the ageing Muriithi has been fighting in court corridors seeking justice, with little luck.

But there is a bit of history that follows this old man that has not been appreciated.

He was actually the first Kenyan to question the wide presidential powers enjoyed by President Moi in the old constitution, and he paid for it together with his lawyer John Khaminwa.

As the deputy of James Kanyotu — the unostentatious and self-effacing director of intelligence — Muriithi was in a position that put him close to power, until May 1982 when he was arrested and detained without trial.

BUSINESS

The actual reason: Nobody knows. What we know is that Moi, Kanyotu and Muriithi owned equal shares in a company by the name Mokamu Limited, a combination of the first two letters of their names.

They also had shares in Fourways Investment which then owned a prime building at the junction of Muindi Mbingu Street and Moktar Daddah Street — now known as Family Bank towers.

The only other shareholder was Nairobi businessman Sadru Alibhai, the Golden Biscuits brand baron — and who in 1985 bought the Peugeot franchise in Kenya from Marshalls Universal PLC for Sh55 million.

Fast-forward to 1988, Alibhai sold his company to Ketan Somaia, a 26-year-old Kisumu shopkeeper, and now in jail in UK, who was being used as a front by Hezekiah Oyugi, the powerful permanent secretary for Internal Security.

That is how close Mr Muriithi was to Moi — or so, he thought. It was a perfect mix of business, politics and money.

Moi had earned his presidency by feigning an underdog status and allowing the likes of Charles Njonjo, Dr Njoroge Mungai and Mbiyu Koinange to underestimate his lethal strike.

TRANSFER

Many, including Mr Muriithi, thought that Moi was a political pushover; a softie — or what they used to say behind his back “a passing cloud”.

This is the period when, long before any civil servant could dare to challenge President Moi, Mr Muriithi dared to decline a transfer from the Special Branch to become the General Manager of the troubled and struggling Uplands Bacon Factory in Lari.

Mr Muriithi was irked, nay piqued, for this effectively ended his 23-year career in the police service.

Rather than take up the position, and in an unprecedented move, the Nyeri-born sleuth went to court to argue that President Moi had no powers to remove him from the police service.

He argued that those powers rested with the Public Service Commission. Legally, he was right; but politically he had made a goof.

It had all started on April 14, 1981 when Mr Muriithi received a letter from Mr Kanyotu asking him to hand over government property and to take up a new post at Uplands Bacon Factory. At best, it was a demotion, and at worst a chance to get rid of him.

COUP

Political pundits say that the fall of Muriithi was connected to a revenge mission undertaken by Charles Njonjo, the Minister for Constitutional Affairs, following the dragging of his name into the Muthemba Affair. He blamed Muriithi for it.

Mr Muriithi had led the investigations that led to the March 19, 1981 arrest of a Nairobi businessman, Andrew Mungai Muthemba, a distant relative of Mr Njonjo, who was charged with attempting to overthrow the government.

It was an intriguing case that Attorney-General James Karugu and Chief Public Prosecutor Sharad Rao sought an urgent appointment with Moi on how to handle it. Mr Rao was Njonjo’s friend; Mr Karugu was not.

The two, it is now known, had disagreed on what to do with Mr Muthemba’s flirtation with some military personnel.

What was known at that time was that between December 15, 1980 and February 23, 1981, Mr Muthemba had tried to get Corporal Joseph Njiru Shimba to steal 10 hand grenades, 10 remote controlled devices, and an unspecified number of aircraft bombs.

He had also tried to get Captain Ricky Waithaka Gitucha to steal 100 grenades, mortars, machine guns and ammunition, rifles, plastic explosives, bomb timers, and remote controlled devices.

JUSTICE

Whether the removal of Muriithi and the resignation of Attorney-General James Karugu in June 1981 was related is not clear.

While Karugu quietly left, Muriithi reached out to, perhaps, the only lawyer willing to take up his case: John Khaminwa, then 46.

Mr Khaminwa had personally approached Justice Eugene Cotran, one of the few Jewish judges in Nairobi, and told him he had an urgent application to make, according to court records.

He wanted the judge to make a temporary declaratory order reinstating Mr Muriithi back to the police service.

It was also to declare his purported retirement null and void. But the case was taken up by Justice Hancox, leading to a court tussle on why the Chief Justice transferred the file from Justice Cotran.

Mr Khaminwa, in his objection to Justice Allan Hancox taking over the case, alleged that the matter was fixed before Cotran and the file “wrongly transferred from him as a result of a telephone conversation” said to have taken place with Chief Justice Sir Alfred Simpson from the Judge’s chambers.

By then puisne judges of the High Court were appointees of the president and even though the Judicial Service Commission could recommend an appointment — such an appointment was not legally binding.

Thus, foreign judges always had to toe the presidential line to secure their contracts.

RIGHTS

It is not known why Justice Simpson decided to take the case from Justice Cotran to Justice Hancox — but this would later become a judicial trend during Moi’s reign where political cases would be heard by some select judges; who always ruled in favour of the government.

Thus, when he appeared before Justice Allan Hancox, Mr Khaminwa argued that Mr Muriithi’s retirement should have been through the Commissioner of Police, Ben Gethi, and not from Mr Kanyotu.

Mr Khaminwa argued that the effect of compliance with that letter would be that Mr Muriithi loses all his rights as a police officer.

Attorney-General Charles Njonjo had sent Mr Frank Shields — then a State Counsel — and he argued that “the Government has a perfect right to ask for the return of its property which is only given to the plaintiff for the purpose of the performance of his duties.”

He also argued that a private individual “has no right” to sue the government. “When those duties end, then they have,” argued Mr Shield — and Justice Hancox seemed to agree with him.

“Mr Shields is absolutely right and there is no such remedy against the Government as a temporary order declaratory of the parties’ rights,” he said, closing doors on Mr Muriithi’s bid for reinstatement.

DETAINED

Undeterred, he decided to challenge the ruling at the Court of Appeal, but before it was heard, Mr Muriithi was detained; thus becoming the first person to be detained without trial by President Moi, who had in 1979 promised to do away with such underhand moves to silence critics.

The detention of Mr Muriithi — followed closely by Mr Khaminwa — caught everyone by surprise. It had revealed the dark side of the Nyayo regime: intolerance.

Mr Muriithi was at his house on May 22, 1982 when police drove in shortly after 9.30 am.

He was asked to accompany the police to the CID headquarters, where he was well-known, and he was driven by his driver, John Mwangi Ndina.

But on arrival, both were detained — and Mr Ndina was released at 8.30pm. By then, Mr Muriithi’s detention orders had been signed.

But Muriithi was not a critic of President Moi, per se, but a business ally and civil servant — a stickler to rules.

Mr Khaminwa decided to challenge the detention before Justice Chesoni, who made a ruling that would be used later to defeat any application for a writ of habeas corpus.

CRITICS

Mr Muriithi’s wife, Jockbed Muthoni, had asked the court to direct the Director of Criminal Investigations Department to have the body of Mwangi Stephen Muriithi produced before the court and the said Director to appear with the original warrant or order for the detention to show cause why Mr Muriithi should not be released.

It was Deputy Public Prosecutor Sharad Rao, assisted by Principal State Counsel, Mr Bernard Chunga, later Chief Justice, who informed the court that Mr Muriithi was detained under the Preservation of Public Security Act — which had been used by both the colonial and Kenyatta governments to silence critics.

Justice Chesoni ruled that although the rules governing habeas corpus are found in the Criminal Procedure Code, “a habeas corpus application is in reality a civic matter. What gives it the criminal touch is that by and large where the subject is in public custody the restraint of his liberty resembles criminal detention”.

Muriithi has been arguing in courts — with little success — that his detention in 1982 was orchestrated by Moi, who was his business partner, for the sole purpose of dispossessing him of his proprietary rights in some three limited liability companies, namely Fourways Investments Ltd, Sheraton Holdings Ltd and Mokamu Ltd, in which the two were shareholders.

COMPENSATION

In April 2011, Justice Jean Gacheche awarded Mr Muriithi Sh80 million being “his share of the proceeds” from the sale of the properties of the three limited liability companies and Sh50 million as punitive damages.

But on May 90, 2014 the Court of Appeal set aside the judgment of the High Court and argued that the decision of Justice Chesoni “conclusively determined the legality” of Mr Muriithi’s detention under the law as it then existed.

It also argued that Muriithi had failed to table evidence on the ownership and sale of the properties.

“Submissions cannot take the place of evidence. (Mr Muriithi) had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it,” the Court of Appeal ruled.

It was the sad end to Muriithi’s bid for justice; a fall from grace to grass. At times, “the law is an ass” as Charles Dickens once wrote.

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