Monday, January 31, 2011

Judge with a flair for landmark rulings

File |  NATION Justice Alnashir Visram contributes to discussion at an East African Magistrates and Judges Association conference last year as Justice Benjamin Kubo looks on. Justice Visram has been nominated for the position of Chief Justice.
File | NATION Justice Alnashir Visram contributes to discussion at an East African Magistrates and Judges Association conference last year as Justice Benjamin Kubo looks on. Justice Visram has been nominated for the position of Chief Justice. 
By JILLO KADIDA jkadida@ke.nationmedia.comPosted Saturday, January 29 2011 at 21:00
In Summary
  • He has presided over several high profile cases and is well remembered for awarding Nicholas Biwott a record Sh30 million in a defamation suit

The naming of Appeal Judge Alnashir Visram as a potential Chief Justice came as a surprise to many. Justice Visram’s name did not feature in the mainstream media as one of those lobbying for the job.
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However, his name appeared in the Nairobi Law Monthly magazine as a likely candidate to replace Chief Justice Evan Gicheru.
The soft-spoken judge is described on the Judiciary website as “a creative judge with a flair for innovative approaches to judicial resolution”.
Come to Kenya
He was born in Kisii, his grandfather having come to Kenya from India at the end of the 19th century aged 15.
Justice Visram went to Kisumu Boys’ High School, where he completed his ‘A’ levels before joining the University of Nairobi. He was part of the first graduating class of the newly established Faculty of Law of the University of Nairobi in 1972, and was admitted to the Bar in 1973.
In 1978 he graduated with a second degree in law from the University of British Columbia, Canada. In 2006, he graduated with a Master’s degree in international law from the University of Nairobi.
When he began to practise, he specialised in commercial, corporate and civil law, during which time he represented several insurance companies, banks and multi-nationals.
In June 1999, President Moi appointed Justice Visram Commissioner of Assize; in March 2001, he was sworn in as a Judge of the High Court of Kenya; and in April 2009 as an Appeal Court Judge.
During his tenure, he has presided over several landmark cases.
In the case of 400m hurdler Eric Keter who had been excluded from participating in the 2000 Olympic Games for coming in fourth during trials, Justice Visram agreed the exclusion was unfair and ordered the now defunct Kenya Amateur Athletic Association to include Mr Keter in the team.
Soon after, he ordered Kenya Power and Lighting Company (KPLC) to restore electric power to a business consumer arguing that, as a monopoly company, it could not cut off power to its consumers on whim.
Leadership positions
Presently, he is a member of the Judiciary’s Training Committee, the Curriculum Development Committee and is the vice-chairman of the Strategic Planning Committee. Justice Visram has also held various leadership positions within the Ismaili Community and the Aga Khan Foundation.
Among the prominent cases Justice Visram has handled is the 2008 petition filed by Mr Stanley Livondo challenging the election of Prime Minister Raila Odinga as Langata MP.
At one point Mr Livondo sought to have the Prime Minister summoned to court but this was dismissed by the judge. Justice Visram had said the plea by Mr Livondo, who contested against Mr Odinga in Langata, was an afterthought and an attempt to go on a fishing expedition over issues not relevant to the determination of the election petition.
He noted that Mr Livondo failed to outline to the court what specific questions he wished to ask Mr Odinga. Justice Visram in the end dismissed the petition due to lack of proper serving of the court papers.
Other election petitions handled by Justice Visram include one challenging Githunguri MP Peter Njoroge Baiya’s election and one against Dujis MP Duale Aden Bare. The two petitions were also dismissed due to failure to serve the MPs with suit papers in accordance with the law.
Justice Visram is also remembered as one of the judges who gave a huge libel award against the media.
He awarded former minister Nicholas Biwott Sh30 million against Clay Ltd and Dr Ian West for defamation in the book Dr Ian West’s Casebook.

He also awarded former Appeal Court Judge Richard Kwach Sh5.5 million as compensation in a libel case against the Standard Group.

According to the Law Society of Kenya chair Kenneth Akide, this libel award given by Justice Visram cannot be faulted legally.
In court, the judge is slow to anger. He once sat through a hearing even after he was referred to as “a gatekeeper for the Kenya Anti-Corruption Commission” by a lawyer. However, he censured the lawyer in his final ruling for making abusive comments.
And on Sarturday, Mr Akide applauded the decision to nominate Justice Visram to the position of Chief Justice.
“In a society that is fairly tribal, whoever appointed Judge Visram was trying to neutralise the tribal factor,” he said.
However, the Kenyan chapter of the International Commission of Jurists disagrees with this, claiming Justice Visram “hates freedom of expression which he has, in the past, punished with the highest damages ever awarded in the country’’.
In a statement sent to newsrooms, the ICJ-K adds: “He cannot lead a free people in implementing their new and libertarian Constitution, enacted in response to injustices that he has been part of.”
However, the process of appointing the CJ is not yet over. A vetting committee will have to assess his suitability. Once the candidate passes this stage, the name is forwarded to Parliament for approval after which the President can officially appoint the judge and swear him in as the Chief Justice.
Under the old constitution, the process of appointing a Chief Justice was not as elaborate. The President simply appointed an individual and the nominee would be sworn in without extensive vetting.

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