Court stops Matiba compensation as kin and lawyer fight

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SAM KIPLAGAT

By SAM KIPLAGAT
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The High Court has stopped further payments to the late multiparty politics hero Kenneth Matiba, pending the determination of a lawsuit filed by his lawyer John Mburu.

Mr Mburu, through his advocate Nicholas Ombija, told the court that the government had quietly paid Matiba’s family Sh200 million behind his back yet he was the lawyer on record and who successfully prosecuted the matter.

Mr Ombija told Justice James Makau that the government was planning to disburse a further Sh500 million to the family in June, without consulting Mr Mburu. The first instalment was paid around April 14.

“The payment was made completely without (the applicant’s) knowledge,” he said in a sworn statement.

In the petition, Mr Ombija said that by paying the family the money directly and clandestinely, the government was usurping the advocate’s role of determining who was the rightful beneficiary of his late client’s money under the decree.

“In colluding with the deceased’s family to pay them behind the applicant’s back … the respondent was actuated by malice, nepotism and clear corruption,” reads part of the petition.

He said the sum of Sh202,715,839 is the fees payable to Mr Mburu pursuant to taxation of the party and the party bill of costs, which was made on February 1, 2018 under the provisions of the 2014 Advocates Remuneration Order.

The ex-minister was awarded Sh978 million as special and general damages by Justice Isaac Lenaola, then a judge of the High Court. The court also awarded him Sh15 million in damages and for violations suffered, and another Sh18.1 million for medical expenses. The amount has risen to more than Sh1 billion because of interest.

Justice Lenaola, now a Supreme Court Judge, agreed with Mr Mburu that the multiparty politics hero was the founder, leader and the motivator behind the success of his companies and his detention and ill treatment affected his business empire. The illegal detention led to the collapse of his empire and deterioration of his health, the judge noted.

All was well until the family started harassing Mr Mburu over the issue of the minimum advocate-client fees due to him. He said the family began “illegal and unethical attempts” to interfere with the party and party fees by various means, including trying to force him to file a party and party bill comprising a paltry sum for instructions fees, which they calculated unilaterally and whimsically.

He said the family later purported to arrogate themselves ownership of the entire amount to the exclusion of the advocate and treated it as their sole property to which he has no claim.

Mr Ombija said the family relegated Mr Mburu to the position of an intruder, yet he obtained the judgment after giving a lot of time, extensive research and huge documentation to win the case.

Mr Mburu said the family has “paradoxically developed a deep resentment for him and reduced him to a bitter enemy” for merely harbouring a legitimate expectation of his minimum fees.

He reveals that, at the time he took instructions from Mr Matiba to file the case, the latter’s mental and physical health was severely compromised and he was incapable of giving instructions personally.

The instructions, he said, were therefore substantially given to him by his daughter, Susan Matiba Mwamto, who held a general power of attorney.

Mr Matiba’s deteriorating health was traced to the time he spent in detention following his arrest in July 1990 while agitating for the return of multiparty politics. While in detention, he suffered stroke on May 26, 1991, but officials did not get him medical help and he remained in that state for a week.

Mr Mburu argued that his arrest and subsequent detention were a violation of his fundamental rights and freedoms guaranteed by the Constitution. They included the rights to have a political opinion and to liberty and security, freedom of conscience, expression, assembly and association, and freedom of movement.

Justice Makau directed the case to be mentioned on June 5 for further directions.



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