By Terry Moraa*
"Although the Courts do not ordinarily conduct business on Sundays and weekends, there is no rule of law or procedure that prohibits them from doing so and in an appropriate case when moved…. Perhaps it is time for the Chief Justice to issue practice directions for the hearing of urgent matters on weekends and public holidays where necessary…."[i]~ Justice David Majanja.
Introduction
This piece reflects on the judicial excellence of Justice David Majanja through three lenses. The first lens highlights his determination to guarantee the constitutional right of access to justice. The second lens focuses on Justice Majanja's pursuit to guard the integrity of our Constitution. The final lens examines the influential jurisprudence of this learned judge, particularly his acclaimed taxation rulings, which are recognised for their insight. This piece concludes by affirming that Justice Majanja's judicial excellence is one that will live on and continue to shape our comprehension of judicial duty.
Justice beyond bounds: A legal steward's sabbath service
In his ruling, Royal Media Services Limited v Attorney General and 2 others[ii], Justice Majanja finds support in the Holy Book of Luke 14:5:
"He said to them, 'Which of you, having a son or an ox that has fallen into a well on a sabbath day, will not immediately pull him out?"[iii]
In this verse, Jesus used a theoretical situation to examine how the Pharisees interpreted the laws of the sabbath day. While the sabbath is a day of rest, kind-heartedness and feasibility should take precedence over the strict observance of rules when someone needs help. The chamber summons of the Royal Media case which was filed before court had been brought to Justice Majanja on a Sunday, when the Court does not typically sit.[iv] Reaffirming the spirit of the Bible in Luke 14:5, Justice Majanja's dedication in ensuring judicious justice when he convened court on a Sunday illustrates his compassionate and pragmatic approach to legal duty. This made him the first judge in kenya to sit on a weekend.[v]
Justice Majanja did not stop at this in guaranteeing the constitutional right of access to justice. In another landmark judgment, Dry Associates v Capital Markets Authority and anothe[vi]r, the learned judge expanded the confines of 'access to justice' to factors including availability of physical legal infrastructure.[vii] The case remains a leading authority regarding access to justice. Furthermore, the case is also an authority in securities regulation as it reaffirmed the principle of vicarious liability for licensees of the Capital Markets Authority.
Justice Majanja was indeed committed to justice above strict adherence to conventional practice.
Judicial vigilance: A guardian of constitutional integrity
Justice Majanja upheld constitutional integrity through his outstanding jurisprudential judgments notably in the case of Okoiti Omtatah Okoiti and 6 others v Cabinet Secretary for the National Treasury and Planning and 3 others.[viii] This high-profile case centred on the controversial Finance Bill of 2023 and the very much debated housing levy.
Justice Majanja, alongside other judges, declared that the introduction of the housing levy through the amendment of the Employment Act vide section 84 of the 2023 Finance Act lacked a comprehensive legal framework hence contravened the Constitution, including Article 10.[ix] The Court held that the imposition of the levy against persons in formal employment to other categories of income earners to support the national housing policy was unfair, discriminatory, irrational and without justification.[x] Section 84 of the Finance Act contained legal gaps that contravened constitutional principles. The court emphasised the importance of public participation and added that it should not only be facilitative but also reasonable.[xi] This decision was a relief to both employees and employers who were obligated to each contribute 1.5% of their gross monthly salary.
In Republic v SOM[xii] Justice Majanja declared the unconstitutionality of Section 166 of the Criminal Procedure Code to the extent that it takes away the judicial function to determine the nature of the sentence contrary to Article 160 of the Constitution by vesting discretionary power to the President to determine the nature and extent of the sentence, ultimately being inimical to the duty of the judiciary.[xiii] This judgement has helped in directing that part of the Criminal Procedure Code that gives the President authority to pardon some of the forensic patients held in mental asylums for reasons of insanity, to be reviewed.[xiv] Justice Majanja further backed this position by holding that human rights standards have prompted the advancement of the conditions and treatment of persons with mental disability in the criminal justice system.[xv]
A master of tax jurisprudence
Serving at the High Court, Commercial and Tax Division, Justice Majanja acquired acclaim and repute for his consistent astute rulings in taxation cases. One of his notable cases that I read during my study of taxation law in third year is the Commissioner of Domestic Taxes v Thika Road Baptist Church Ministries.[xvi] The decision barred the Kenya Revenue Authority (KRA) from demanding tax from the Thika Road Baptist Church. KRA wanted the church to pay 5.5 million, arguing that the church had failed to produce a tax exemption certificate. Whereas churches are exempt from taxes, KRA insisted that the churches are exempt from tax subject to various conditions. Justice Majanja held that it was unnecessary for the church to seek an exemption because tithes, offering and free will donations are not income chargeable with income tax.[xvii] This judgement came as a major relief to churches.
Conclusion
As we honour Justice David Majanja, we reflect on a judge whose constant insightful impact on legal scholarship will continue to shape our comprehension of judicial duty. In this reflection of Justice Majanja's judicial excellence, we are reminded of the wisdom in the Holy Book of Proverbs 21:3:
'To do what is right and just is more acceptable to the Lord than sacrifice'.[xviii]
Justice Majanja's career embodied this principle, leaving a lasting and excellent legacy of integrity and a commitment to justice. His legacy goes beyond mere legal precedents and symbolises a commitment to justice tempered with compassion, ethical fortitude and unswerving allegiance to the rule of law. His legacy will continue to inspire generations, both in the legal profession and beyond.
In lasting legal honour!
* The author is a finalist at Kabarak University
[i] Royal Media Services Limited v Attorney General and 2 others, Constitutional Petition 59 of 2013, Judgement of the High Court of Kenya at Nairobi, 03 February 2013, para 2.
[ii] Royal Media Services Limited v Attorney General and 2 others, para 2.
[iii] Holy Bible New International Version, Luke 14:5.
[iv] Royal Media Services Limited v Attorney General and 2 others, para 1.
[v] The Standard, 'When an ox fell into the pit on Sabbath Day', 2013, <https://www.standardmedia.co.ke/article/2000076997/kenya-when-an-ox-fell-into-a-pit-on-sabbath-day>on 13 July 2024. See also Zakheem Rajan, X post, <https://x.com/zakheem_rajan/status/1825881831285182677?t=1yZwyb9MNQFKnEdeCKSyBA&s=19> on 10 September 2024.
[vi] Dry Associates Limited v Capital Markets Authority and another, Constitutional Petition 328 of 2011, Judgement of the High Court of Kenya at Nairobi, 02 March 2012, eKLR.
[vii] Dry Associates Limited v Capital Markets Authority and another, para 110.
[viii] Okoiti Omtatah Okoiti and 6 others v Cabinet Secretary for the National Treasury and Planning and 3 others, Constitutional Petition E181, E217, E211, E219, E221, E227, E228, E232, E234, E237 & E254 of 2023 (Consolidated), Judgement of the High Court of Kenya at Nairobi, 28 November 2023, eKLR.
[ix] Okoiti Omtatah Okoiti and 6 others v Cabinet Secretary for the National Treasury and Planning and 3 others, para 220.
[x] Okoiti Omtatah Okoiti and 6 others v Cabinet Secretary for the National Treasury and Planning and 3 others, para 216.
[xi] Okoiti Omtatah Okoiti and 6 others v Cabinet Secretary for the National Treasury and Planning and 3 others, para 152.
[xii] Republic v SOM, Criminal Case 6 of 2011, Judgment of the High Court of Kenya at Kisumu, 30 April 2018, eKLR.
[xiii] Republic v SOM, para 19(a).
[xiv] Republic v SOM, para 18.
[xv] Republic v SOM, para 18; Lizzy Muthoni Kibira and Kevin Kipchirchir, 'Between arrest and sentence: Treatment of persons with intellectual and psychosocial disabilities in Kenya's criminal justice system' in J Osogo Ambani and Humphrey Sipalla (eds) Mental health and the criminal justice system, Kabarak University Press, 2023, 97-98.
[xvi] Commissioner of Domestic Taxes v Thika Road Baptist Church Ministries, Tax Appeal E024 of 2021, Judgment of the High Court at Nairobi, 31 May 2022, eKLR.
[xvii] Commissioner of Domestic Taxes v Thika Road Baptist Church Ministries, para 20. See, Laureen Nyamu, 'The taxing issue of church taxation: A legal analysis of the taxation of churches in Kenya' Kabarak Law Review blog < https://kabarak.ac.ke/klrb/the-taxing-issue-of-church-taxation-a-legal-analysis-of-the-taxation-of-churches-in-kenya-1 > on 10 September 2024, for a discussion of churches as altruistic endeavours or profit-making entities.
[xviii] Holy Bible, New International Version Proverbs 21:3.
