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also be cited as the reason for the undue delay in disposing of Civil Appeal No. 266 of 2008. 54. Thus in summary, it is the Commission's findings that: (a) Miscellaneous Civil Application No. 22 of 2004 was initially delayed by the Chief Justice; (b) the Complainant's challenge to opposing counsel (the so called side show) did not delay Miscellaneous Civil Application No 22 of 2004 as (i) the High Court dismissed the challenge and proceeded to deal with the preliminary objections to substantive matter, and (ii) the challenge did not prevent the courts from proceedings with Miscellaneous Civil Application No 22 of 2004, including when it became Civil Appeal No. 266 of 2008; (c) in the circumstances the delays are attributable to the Respondent State which (d) does not offer a convincing or any justification for the delays. Consequently, the procedures for local remedies are unduly prolonged. This applies to clai1n_s "(a), "(b)", "(c)", "(e)", "(g)", and "(h)" as enumerated at paragraph 16 above1jn respect of which }:le sought to present his grievances for adjudication. 55. The undue prolongation does not apply to c;laim " (d)" pertaining to the imprisonment for contempt of court. The C_o mplainant does not state that he made any attempt to challenge the imprisonment by way of appeal, or in separate subsequentproceedings, or, indeed in Miscellaneous Civil Application No 22 of 2004- as a violation of his ri~hts. TheComplainaiit does not suggest that it was impossible to do so. Accordingly, the Complainant did not exhaust, let alone attempt, local remedies regarding his imprisonment for contempt of court. This pal'ticular claim cannot be admitted on .the pretext that procedure for local . ' . remedies was unduly prolonged, for no procedure was engaged. 56. On the other hand, the complaints about the High Court's decision permitting a private la-w:yer to intervene and raise preliminary objections to his substantive case, and the Court's refusal to grant him leave to appeal against that decision (claim "(f)" at para. 16 above), are admissible because the Complainant ultimately exhaust~d local remedies. Notably the High Court's refusal of leave to appeal gave rise to Court ofAppeal Civil Application No. NAI 260 of2007 in which sought the leave from the Court of Appeal. This application stalled for 4 years and 4 months before it was heard on 23 February 2012 and a decision rendered on 20 April 2012. Had the Complainant submitted the present Communication in the intervening period, a case could probably have been made about the procedure being unduly prolonged. He did not. He waited. More importantly, when the Court of Appeal rendered its ruling on 20 April 2012, he pursued the issue further by lodging Petition No. 2 of 2012 in the Supreme Court, e'il< Hu~-;: · cRETAR judicial body for the Respondent State. The Supreme Court dismisse · -----=---- . . "'o -<) ' r r:;, \ :~ 8 \ ·.c - l ~ ?? "' _Cl J ,__ .r <:J . c.,--, I . u ,, -'lf'1?,cA1N\'o O , 'v"' ' 0,);,Iv c.,\§v ~, 7£' ET DES I'"~ ~~ ........

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Communication 432/12 – Peter Odiwuor Ngoge v Republic of Kenya

ACHPR Decision

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Type of Document

Decision

Keywords

Elections / Referendums
Equality
Equality Before the Law
Participation in Government
Personal Liberty
Right to be Heard before a Competent Court
Right to Fair Trial

Case Head Notes: The Complainant states that, in 2003, he applied to be elected as Speaker of Parliament. However, his application was blocked, and another candidate was declared speaker. The Complainant sought leave for judicial review and, after the application was dismissed, the Complainant insinuated that the judge was acting on instruction to shield the Respondent. Consequently, the judge convicted him of contempt and sentenced him to one week imprisonment. In 2004 the Complainant commenced new proceedings and the matter was certified for urgent hearing. However, the Complainant states that the Chief Justice deliberately stalled the hearing of the matter. The Complainant also, in ensuing litigation attempts, brought up concerns regarding the participation of various members of the Respondents, and, in 2012, he states that one of the two judges of the Supreme Court, who dismissed his application, was a member of Parliament, when he applied to be elected Speaker, and that, therefore, she sat as a judge in her own cause in dismissing the appeal. The Commission found no violation of Article 3 because they state that, at all times, the Complainant enjoyed unfettered access to the law and courts and that his personal dissatisfaction cannot amount to legal grounds to conclude that his right to equality before the law was violated. The Commission found no violation of Article 5 because they could not find any evidence that state officials intentionally inflicted psychological pain or suffering on the Complainant, and they did not consider the facts relied on by the Complainant to be an attack on his inherent dignity. The Commission found no violation of Article 6 because there was no breach of Article 6 identified, and the Commission cannot find a violation for perceived future conduct. The Commission found no violation of Article 7 because they state that the Complainant did not suffer any substantial prejudice that could support a claim, and that the allegations of procedural irregularity in prosecuting his appeal do not amount to a denial of access to justice. Noting that the Complainant freely participated in the elections for Speaker of Parliament, the Commission found no violation of Article 13. The Commission stated that the contention that the Complainant was entitled to a fresh election was without merit, and that, allowing the Complainant to appoint his own date to contest in the election would amount to nullifying the will expressed by the people of the Respondent State. The Commission found no violation of Articles 19, 22, and 24 because the facts on which those allegations are based were outside the scope of issues on which the original complaint was based.

Country

Kenya

Outcome: Decided on Merits

Year Decided: Jun 3, 2024

Rights Alleged to be Violated (ACHPR Provisions)

ACHPR 7: Right to Fair Trial
ACHPR 9: Right to Receive Information and Free Expression
ACHPR 13: Right to Participate in Government
ACHPR 13.1: Right to participate freely in government
ACHPR 13.2: Right of equal access to the public service of the country
ACHPR 13.3: Right of access to public property and services
ACHPR 19: Right of All Peoples to Equality and Rights
ACHPR 2: Freedom from Discrimination
ACHPR 27.1: Duties towards family and society, the State and other legally recognized communities
ACHPR 27.2: Obligations of individuals when exercising rights and freedoms
ACHPR 3: Right to Equality before the Law and Equal Protection of the Law
ACHPR 5: Cruel Inhuman and Degrading Treatment
ACHPR 6 : Right to Personal Liberty and Protection from Arbitrary Arrest
ACHPR 9.2: Right to Express and Disseminate Opinions Within the law

Rights Not Violated (ACHPR Provisions)

ACHPR 7: Right to Fair Trial
ACHPR 1: General Obligations
ACHPR 13: Right to Participate in Government
ACHPR 19: Right of All Peoples to Equality and Rights
ACHPR 2: Freedom from Discrimination
ACHPR 22: Peoples' Right to Economic, Social and Cultural Development
ACHPR 24: Right to a General Satisfactory Environment
ACHPR 3: Right to Equality before the Law and Equal Protection of the Law
ACHPR 5: Cruel Inhuman and Degrading Treatment

Duration of Procedure

Oct 2, 2012 ~ Jun 3, 2024

Country Geolocation

Latitude: -0.023559

Longitude: 37.906193

Country Geolocation (linked ACHPR Decision): Kenya

Primary Documents

(432-12) Peter Odiwuor Ngoge v Kenya.pdf
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African Human Rights CLA 2.0

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Communication 432/12 – Peter Odiwuor Ngoge v Republic of Kenya

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