Judge Mwita defends decision in medical case where a child died

High Court Judge Chacha Mwita on Thursday defended his decision to require a parent serve documents to a hospital on an urgent intervention where a child was in critical condition.

The minor allegedly passed away. Justice Mwita, in an interview with the Judicial Service Commission, said the application was written in a way that his orders would finalise the case before it was heard, adding that the parties came later to him and explained that they had struck a deal that the minor had been discharged.

He said the predicament he faced was that the case was to be handled by another judge. He said the Kenya Medical Practitioners and Dentists Council (KMPDC) had indicated that the child was transferred to another health facility before the parents approached the court. He said that this was a month before.

He said the catch was in the KMPDC report. According to him, he felt it may have been a trap as the predicament was whether the nurse would be in the former hospital, the new hospital or the minor’s parents’ home. He said he sympathised with the family, but it was not the consequence of his inaction.

“That patient was in another facility. If I gave the orders, and the file belonged to another Judge, there is a possibility the other side would say nimeonekana. I would ask the commission to look at the decision by the council and, in particular, paragraph 135. I am being asked to give these grave orders, including a nurse, that the patient is in another facility. As a judge, we are in a very difficult situation, you are being asked to give a nurse and now that the patient is in another facility and the patient was discharged almost a month ago, and the other averment is not in the pleadings,” said Mwita.

In the meantime, High Court Judge William Musyoka has suggested that Kenya needs to amend the law to allow widows enjoy the life interest of a matrimonial property upon death of a husband.

During the interview for the Court of Appeal judges, Justice Musyoka told the JSC that the current regime, where women are presumed to be dependents alongside children, the surviving spouse ought to be weighed on a larger scale than children, as the wealth was acquired during a marriage.

“The issue of life interest is now being highlighted, and the argument is that it is to the disadvantage of the widow. The scheme of inheritance under the Succession Act envisages the transfer of wealth to another, from the generation of a dead person to the children and in that scheme, the surviving spouse would be at the same level as the parent who has died and therefore would not be counted as one of the inheritors because the ultimate destination is to the children, and that is why she is only given a life interest to enjoy in her lifetime and when she dies, it devolved to children absolutely,” he said.

He said other countries, such as the UK, where Kenya got the model, have moved away and now are 50 per cent to the surviving widow and the other half goes to the children.

Chief Justice Martha Koome said there is a serious issue with the current model. She asked Justice Musyoka whether there was an issue if an injustice as a woman would only be given a life interest while the man has a full right to inherit as a beneficiary.

He said the law was passed in 1972. “Those are many years, and we need to review,” he said, adding that in his book on the law of succession, he has pointed out that the question of matrimonial property arises in succession cases.

His colleague, Justice Francis Gikonyo said there is a need to formalise customary marriages. He said Christian and civil marriages are registered and have a formal document for recognition; nevertheless, in customary marriages, there is nothing to show that couples are married.

“I think it is because of the way those marriages are contracted under our cultural practices that the difference comes in. The people feel that once they have done it, then they are properly married, and they do not have to register. I think we need to do something it formal to be incorporated to be incorporated within the traditions. How does it get into the government’s books? Then we require compliance,” he said.

Meru High Court Judge Edward Muriithi, said corruption in the Judiciary is both perceived and actual. He was of the view that various judicial officers and judges were involved in corruption.

On the other hand, he said perception has been a historical injustice against judges as it is believed that Judges are corrupt magistrates. He suggested that the judiciary should teach Kenyans about the system of justice so that when one loses a case, he or she will be content with the outcome.

“All this time, we have been trying to clean this image, even internationally, so that the members of the public in Kenya and internationally need to be disabused that the Kenyan judiciary is corrupt… It need not be that when you lose a case, the Judge must have been seen in the night. The public needs to know that you can lose a case based on the law and evidence,” said Muriithi.

He asserted that the Judiciary should actively deal with corrupt judges, while at the same time ensuring that corrupt persons should not be judges.