Nowrojee, the legal legend and giant, takes a final bow at 84

Some two years ago, I hitched a lift from Tigoni, Limuru, from Senior lawyer Paul Nyamodi.

Nyamodi has made a name for and drawn admiration for his constitutional law acumen, yet he is a gentleman and humble.

We had so many conversations, but one still stuck today is that he was under the tutelage of senior lawyer, Pheroze Nowrojee.

I see Nowrojee in Nyamodi on all fronts: depth, temperament, and wit. The two are like-for-like.

“Senior Counsel is the one who taught me legal practice, and he was thorough yet very humble. I practiced alongside him, and he is the one who showed me the how of constitutional law,” I recall Nyamodi telling me while his eyes were glued on the windscreen and his hands on the steering wheel as we journeyed towards Nairobi's Central Business District.

I had asked Nyamodi about the 84-year-old legal giant, as he had stopped writing his column and I had not seen him in the corridors of justice. I was an avid reader of his column, as he made law seem too easy for a layman. I also liked his prose and literature.

Of the many on my list with whom I met and interacted, Nyamodi, former Attorney General Prof. Githu Muigai, senior lawyers Paul Muite, Otiende Amollo, Kamau Karori, Yussuf Bashir and Arnold Oginga have a unique demeanour that no one else in the legal profession has.

Nevertheless, Nowrojee stood out among them like a colossus.

Whenever lawyers met on opposing sides, they referred to him as either a mentor, a teacher or a fellow soldier in the trenches in the fight for multiparty democracy.

Nowrojee, took a last bow yesterday with 57 years of unrivalled legal milestones.

“I giant has taken a final bow,” wrote the Judicial Service Commission (JSC) commissioner Omwanza Ombati.Senior Counsel Amollo Eulogized him as a quintessential advocate who presented the best in court advocacy, while Law Society of Kenya (LSK) president Faith Odhiambo said that the country had lost a man of ‘irrefutable poise and honourable character.

“It is a sad day for the legal profession as we bid farewell to a man who taught us what it means to be distinguished professionals. Our hearts sink today, for we have lost one of the greatest to have ever done it.As we honour this bastion of constitutionalism, we extend our heartfelt condolences to his family, friends, and every person whose life he touched,” said Odhiambo.

Nowrojee stuck with former Prime Minister Raila Odinga in the many presidential election petitions that the Orange Democratic Movement (ODM) contested in court. 

He argued, as the lead counsel that led to a repeat election in 2017. In 2022, he again along senior lawyers James Orengo, Phillip Murgor, Otiende,and lawyers Oginga, Jackson Awele questioned the Independent Electoral and Boundaries Commission (IEBC) split.

Yesterday, Awele said Nowrojee ran his relay nearly perfectly.

“What an honour and a pleasure it was to meet and learn from your feet SC Pheroze Nowrojee. You ran your relay near perfectly. You have earned a peaceful rest,” he wrote.

Oginga, who was the youngest in the team expressed himself with a tears emoji and a dove.

At an advanced age, 82 years, he still commanded attention from both the bar and the bench.

His argument was that the then IEBC chair Wafula Chebukati had conferred himself powers that were not in law.  The senior lawyer argued that the Chebukati gazetted himself as the national returning officer and took away the powers of the commission to verify, tally and declare the winner.

“This shift has come through the general regulations 2012  which we amended at a different rime and brings a different receiving party that is the returning officer. Instead o the IEBC verifying the votes and declaring the tally, he has put his own name, the chairman. Simply submission we have, this is subsidiary legislation and the pathway he was using is void and is total conflict with its principle legislation but the constitution itself,” argued Nowrojee.

The court heard that the gazette notice stripped the IEBC of its verification powers. Nowrojee stated that there are two checks: one on form 34As and another on form 34C.

According to him, the seven commissioners ought to check the forms 34C as there are no party agents at this point. “The six commissioners were kept away from the participation. There’s even a more dangerous thig going on here, via an amendment, there was a concentration of the entire process only on one individual,” he said.

He was of the view that if the IEBC was an auctioneer, he had something to auction. “ And this, the supreme price in politics, national lives and institutions had come to the hands on one person,” claimed Nowrojee adding that today, the ballot boxes are being stuffed with highly sophisticated forms as compared to yester years where ballots were stuffed instead.

“This is what happens when this chairman is left to do what he had carefully managed to do. Why do we always after every five years under the chairmanship of this particular officer we have a crisis?” paused Nowrojee.

According to Nowrojee, the postponement of the election in some parts of the country was illegal.  He argued that the election would only be postponed only if there is violence, a natural disaster or other emergencies or when there are malpractices.

“None of these were applicable and if there were, he did not invoke them. Mr. Chebukati lied…This is not a mistake, this is a calculated subversion and he does it on the last day.

This is a practiced artist destruction of our institution. He did it in 2017 he was caught, when court ordered he obeys certain things, he disobeyed, and now again he is here same person, same sort of tricks, this man has been practicing this for two election cycle,” argued Nowrojee.

He said the court had the power to issue directions that the certificate be made in the name of the person with the most votes.

At the same time, Nowrojee argued that Raila wanted the court to find Chebukati unfit to hold public office. Raila lost to President William Ruto in a unanimous judgment. However, the legend still made a mark in the profession.

Nowrojee is among the few brilliant legal minds remaining the country who were called barristers at Lincoln's inn, at the same time, an advocate of the High Court in Kenya.

Interestingly, he was an advocate of the High Court of Kenya, Tanzania and Zanzibar.

He was called as a barrister at Lincoln’s Inn in 1965. Two years later, he became an advocate of the High Court of Kenya.  He then joined Tanzania and Zanzibar bars in 1970 and 1989.

At the same his footprints on human rights struggle were in Ufungamano Peoples’ Commission, International Community of Jurists, National Cohesion and Integration Commission, Kenya National Human Rights Commission and many others.

Nowrojee’s father, E.P. Nowrojee, was also a lawyer. He was, in fact, the LSK president between 1968 and 1969. The father joined the society in 1949.

Nowrojee in his columns said his many visits to the courtrooms with his father sparked his love of law. At the time, the former student of Catholic Parocial Primary School would enjoy his father’s arguments before the colonial master dominated court.

Nowrojee’s father made his name as a defence lawyer during the Mau Mau trial over the Lari massacre in 1953.Nowrojee studied at Billimorja High School, India, then joined Mbobay University in Dar-es-salaam, Tanzania. He then went to the United States of America for a Master of Laws at Yale Law School.

Lawyer Willis Otieno yesterday remembered him as measured, brilliant and dignified advocate.

“A teacher, mentor, human and constitutional rights lawyer, poet, and writer , SC Nowrojee leaves behind a towering legacy of intellect, integrity, and unwavering commitment to justice. His words stirred minds, his actions changed lives. Kenya bows in honour,” he wrote.

National Assembly speaker Moses Wetang’ula eulogized Nowrojee as a a jurist of towering intellect, a steadfast defender of constitutionalism, and a refined literary soul.

“I had the honour of learning under his guidance lessons not only in law but in courage, integrity, and the duty to confront injustice with clarity and resolve. Senior Counsel was humble, rational, fearless, and scrupulously ethical in the discharge of his professional obligations,” said Wetang’ula.

In his interview with The Star newspaper, Nowrojee said what motivated him was ‘ the goal of a just nation by just means.’

The man, the teacher, the legend, the legal giant took his final bow yesterday.