WILLIS OLUGA/HANDOUT

As the country mourns the late former Lugari legislator, Cyrus Shakhalanga Khwa Jirongo, the role he played in the advancement, development and growth of the law cannot go unnoticed. His contribution was not limited to legislation in Parliament. There is another angle.

 

In Kenya, just like in many Commonwealth countries, there are different ways through which laws are developed. The most common method, of course, is through Parliament. However, laws are also developed through courts. This method is known as “judge-made law.” It operates through what is called “the doctrine of precedent” under which the decisions of superior courts are binding on the courts in the lower hierarchy.  

Cyrus Jirongo was in and out of courts. He sued and was sued in equal measure. In the process, he contributed to the growth and development of the law, what is known in legal parlance as jurisprudence.  

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One of the notable precedent-setting cases filed by the late former Member of Parliament was handed down by the Supreme Court in 2021. The case pitted Jirongo against the Director of Public Prosecutions (DPP), among others.

The Supreme Court reminded the DPP that in exercising the constitutional mandate to prosecute crimes, the DPP ought to always act judiciously and promptly. The Supreme Court upheld the right to fair trial and underscored the importance of promptness in the resolution of disputes. 

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In 1991, Cyrus Jirongo entered into an agreement with Sammy Boit Arap Kogo and Antoinette Boit for the sale of a parcel of land in Nairobi’s Upperhill Area at Sh20 million.

In October 1992, Jirongo charged the property to Post Bank Credit Limited for a sum of Sh50 million.

Nearly 23 years later, in 2015, Sammy Boit Arap Kogo and Antoinette Boit alleged that Jirongo had executed the charge in favour of Post Bank Credit Limited fraudulently.

They filed a civil case over the alleged fraud. They also lodged a criminal complaint pursuant to which Jirongo was charged with several offences, including obtaining execution of security by false pretenses and making a document without authority.

Aggrieved by his criminal prosecution, Jirongo moved to the High Court where he succeeded in having the criminal charges quashed.

The High Court stated that it would be unjust to prosecute Jirongo for an offence which was allegedly committed nearly two and a half decades earlier and particularly when the relevant documents may have been lost, misplaced or tampered with.

The DPP appealed to the Court of Appeal. The High Court decision was reversed, giving the DPP the greenlight to proceed with the criminal prosecution against Jirongo.

Jirongo challenged the decision of the Court of Appeal at the Supreme Court. In its judgment, the Supreme Court ruled that although there is no limitation of time to institute and prosecute criminal offences, where the delay has the effect of denying a suspect the legal tools to mount a credible defence, then the High Court is properly mandated to step in and stop the intended prosecution.

Similarly, where the delay was occasioned by deliberate inaction on the part of a complainant with the intent of getting at a suspect to force the suspect’s hand in say, a different transaction between them at a later date or even use the complaint to force settlement in ongoing civil proceedings, then, again the High Court must step in because the intended prosecution is tainted with malice and not the otherwise unassailable intent to furnish criminal wrong doing, promptly.

The Supreme Court was emphatic that in resolution of disputes, fairness must necessarily include the promptness of action and the inhibition against unreasonable delay.

The court frowned upon the use of the criminal justice system to coerce another person to admit a debt or settle a pending civil case, terming the approach as “most unfair” and one that “fatally taints the fairness of the resultant prosecution.”

It is not uncommon in Kenya for individuals to use the police or the criminal justice system to coerce another person to admit a debt or to settle a pending civil case.

The case of Cyrus Jirongo versus the DPP, which emanated from the highest court on the land, remains an authority. It set the legal precedent that criminal prosecution ought to be mounted within reasonable time and that the use of the criminal justice system to achieve ulterior motives is frowned upon by the courts.

It is a caselaw that binds all courts below the Supreme Court in hierarchy and which will most likely be cited and be applied for years to come.

In another case filed by Cyrus Jirongo against National Social Security Fund, Post Bank Credit Limited and two other persons, precedent was set when the Court of Appeal ruled that leave (permission) of the court has to be obtained before a case is filed against a company which is in liquidation.

In the case, Jirongo had sought an order of injunction to restrain Post Bank Credit Limited, which was then in liquidation, from selling his properties to recover loan advanced under a charge.

Willis Oluga is an Advocate of the High Court of Kenya.