Profiles

Daniel Musinga: soft-spoken but firm jurist

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Court of Appeal President Justice Daniel Musinga at the Supreme Court in Nairobi on May 24, 2021. PHOTO | DENNIS ONSONGO | NMG

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Summary

  • When Daniel Musinga is out on the streets running his errands, he goes unnoticed partly due his calm and laid back demeanour.
  • But when he sits on the bar, Justice Musinga who was early this week elected President of the Court of Appeal is a different man— delivering hard-hitting and landmark decisions.

When Daniel Musinga is out on the streets running his errands, he goes unnoticed partly due his calm and laid back demeanour.

But when he sits on the bar, Justice Musinga who was early this week elected President of the Court of Appeal is a different man— delivering hard-hitting and landmark decisions, earning him praise and a promotion to the country’s second highest court.

Justice Musinga who joined the Judiciary in 2003 was in 2011 crowned jurist of the year following a series of bold decisions he made between 2009 and 2011.

The milestone decisions included one in which he quashed the controversial appointment of appointed Judge Alashir Vishram and lawyer Githu Muigai as Chief Justice and Attorney General, respectively by President Mwai Kibaki during the coalition government.

In 2009, he nullified the creation of new districts, saying the units, which were done in a period of more than 10 years by President Kibaki and Daniel Moi, contraved the constitution.

Over the years, the two former Presidents had created a total of 256 districts but Justice Musinga nullified 210 of them saying they were created in total disregard to the law. The decision left 46 districts, which he said were legally created.

In 2013, Justice Musinga sat in a bench that faulted the High Court decision to redraw electoral boundaries following a petition over the creation of 80 new constituencies. Before that in 2008, Justice Musinga had nullified the elections of two MPs where he was the presiding judge of the High Court in Kisii.

While awarding him as the jurist of the year 2011, International Commission of Jurists – Kenya Section said Justice Musinga had tirelessly and fearlessly shown commitment to the rule of law.

“His past decisions have helped assert the independence of the Judiciary and have at all times aspired to uphold the Constitution, even in the face of considerable external pressure to do otherwise,” ICJ said.

The Commission further said Justice Musinga’s initiatives are forward thinking, and would bring future benefits to the judicial processes and the legal system in Kenya generally.

“These are the types of qualities all jurists aspire to, and are essential for promoting democratic principles in a free and open society. This is especially important now, during Kenya’s transitional period, which began in earnest with the creation of the new Constitution.”

Mr Musinga was admitted as an advocate in 1988 and practiced in Mombasa before he was appointed as a member of the tribunal to investigate the conduct of suspended High Court judges in 2003. He was appointed a judge in October the same year and was posted to Nakuru as the presiding judge.

Early this year, Justice Musinga was appointed to chair the Judiciary Committee on Elections (JCE), taking over from High Court judge Msagha Mbogholi.

JCE was launched in August 2015, as a standing committee to provide a sustainable mechanism to assist the Judiciary continuously prepare for and discharge its mandate on election dispute resolutions.

The CJ appointed the new leadership to prepare the Judiciary to handle petitions arising from the 2022 General Election. After his election as the President of the Court of Appeal, Justice Musinga’s first task will be to appoint a bench to hear an appeal filed by the government, over the quashing of Building Bridges initiative (BBI).

All eyes will be on the judge as the bench will either uphold the decision of the High Court, which faulted President Kenyatta for driving the plans to change the constitution or give the BBI a new lease of life.