Paul Kihara: The attorney-general who crossed into the political battlefield

By  Joseph Wangui

Correspondent

Nation Media Group

Former Attorney-General and Court of Appeal president Paul Kihara Kariuki is dead, the Judiciary has announced.

His demise marks the end of a distinguished legal career that spanned more than four decades and placed him at the centre of major judicial and constitutional developments.

His career was marked by high-profile confrontations between the Executive and Judiciary, including a threat to have him struck off the Roll of Advocates in 2020 as he navigated former President Uhuru Kenyatta's battles with the Judiciary.

In a condolence message issued on Tuesday morning, Chief Justice Martha Koome described Justice Kariuki as an accomplished lawyer, judicial leader and public servant whose contributions to the country’s legal institutions would endure.

Justice Kariuki, who served as Attorney-General from 2018 to 2022 under former President Uhuru Kenyatta, had earlier led the Court of Appeal for five years.

His career placed him at the centre of justice system, including a turbulent period when the Executive and Judiciary clashed over judicial appointments of ‘tainted’ judges and constitutional disputes. He also confronted a potential removal from the roll of advocates over the said appointments.

In his condolence message, President William Ruto said Justice Kariuki's contribution extended beyond the courtroom, particularly through his role as the founding director of the Judiciary Training Institute, where he helped shape the professional development of judicial officers.

Former President Uhuru Kenyatta mourned him as a dedicated public servant whose leadership of the Court of Appeal and the State Law Office left a mark on Kenya's institutions.

Former Chief Justice David Maraga, who first met Justice Kariuki as a fellow law student at the University of Nairobi in 1974, recalled serving alongside him after both were appointed High Court judges in 2003.

Justice (Rtd) Maraga also served with Justice (Rtd) Kariuki at the Court of Appeal, describing his successive roles as judge, training institute director, court president and Attorney-General as a lasting contribution to the administration of justice and the rule of law.

“Justice Kihara was an accomplished jurist and public servant who dedicated his life to public service in the legal profession, traversing private practice and the public service,” Justice (Rtd) Maraga said.

Lawyer Donald Kipkorir said Justice (Rtd) Kariuki was a rare jurist whose integrity was beyond reproach, describing him as an excellent judge and Attorney-General who was also gifted in acting and remained incorruptible throughout his legal career.

“He was above suspicion. I never heard one lawyer who said Justice Kihara Kariuki could be compromised. Fare Thee Well Jurist & Thespian!,” said Mr Kipkorir.

Justice (Rtd) Kariuki’s career presents an important public record of the relationship between courts and the Executive.

In March 2018, he moved from presiding over the appellate court to defending the Executive's legal positions, including during disputes over appointment of 41 judges and the Building Bridges Initiative (BBI).

Born in Kiambu in 1954, Justice (Rtd) Kariuki graduated with a law degree from the University of Nairobi in 1977. He was also an honorary legal advisor of the Anglican Church of Kenya.

Clean bill of health

Parliament’s 2018 vetting report recorded more than 40 years of legal experience at the time of his nomination, including 15 years as a superior court judge. 

Following his nomination as AG, the Parliamentary Committee on Appointments did not receive any memoranda on his move to Executive.

“So, the public, in essence, gave a clean bill of health to Justice (Rtd) Kihara Kariuki,” the motion mover for his appointment told the House at the time.

He began legal practice at Hamilton, Harrison and Mathews before co-founding his own firm in 1986 with other advocates. He later became principal and chief executive of the Kenya School of Law, overseeing its move to Karen, and director of the Judiciary Training Institute.

Justice (Rtd) Kariuki joined the High Court in October 2003, appointed by President Mwai Kibaki. In 2006, he chaired an integrity review committee appointed by Chief Justice Evan Gicheru. It examined the Judiciary’s financial management and recommended administrative changes.

In 2009, he became the first director of the Judiciary Training Institute, an institution providing structured training for judges and judicial officers. It later developed into the Kenya Judiciary Academy.

His next major assignment was at the Court of Appeal. In March 2013, he became the first president elected by fellow judges under the 2010 Constitution, serving until 2018.

As president, he helped develop the Court of Appeal Bill and a strategic plan. The Judiciary says he championed decentralisation, bringing appellate services closer to litigants outside Nairobi.

In February 2018, President Kenyatta nominated Kariuki to replace Prof Githu Muigai as Attorney-General. Parliament approved him in March, and he was sworn in the following month to become the country’s seventh Attorney General.  Its vetting committee reported no public objections to his suitability.

His appointment raised expectations that his judicial experience might improve relations between the Executive and courts. Instead, his four-and-a-half-year tenure coincided with a major dispute over judicial independence.

The sharpest confrontation followed President Kenyatta’s refusal to appoint 41 judges recommended by the Judicial Service Commission (JSC), which was chaired by Kariuki.

President Kenyatta claimed he had received adverse intelligence reports on some of the appointees.

The 2019 impasse led to a court case and order requiring the President of the JSC to appoint and swear-in the judges.

Former Chief Justice David Maraga challenged the decision and complained about disobedience of court orders and cuts to the Judiciary’s budget.

The Law Society of Kenya (LSK) also threatened to have Kariuki removed from the Roll of Advocates over alleged professional misconduct, accusing him of failing to advise President Kenyatta to appoint the 41 judges. It accused him undermining the rule of law and administration of justice.

The dispute escalated in June 2020, when LSK also accused him and former Solicitor-General Kennedy Ogeto of failing to gazette advocates as essential service providers during the Covid-19 curfew, despite a court order. The two, however, obtained interim High Court orders restraining the LSK from expelling them pending determination of their case.

Kariuki defended the Executive, saying it would implement court orders subject to lawful limits, stays and pending appeals.

He accused Maraga of “grandstanding and populist brinkmanship” and said the Chief Justice was revealing “his disposition and prejudices” on constitutional questions that could reach the Supreme Court.

The judges were eventually appointed, although President Kenyatta initially left out six over integrity concerns. They were sworn in after William Ruto became President in September 2022.

Kariuki’s other defining assignment was the Government’s defence of the Building Bridges Initiative. The project followed the 2018 handshake between Mr Kenyatta and opposition leader Raila Odinga. It proposed governance changes but faced legal challenges over the constitutional amendment process.

Kariuki appealed against decisions that invalidated the initiative. In March 2022, the Supreme Court rejected key parts of the appeal and upheld findings that the process was unconstitutional. It agreed with the Government on some questions, including presidential immunity for official actions.

After President Ruto won the August 2022 election, Kariuki said the Attorney-General would not oppose petitions challenging the result. This differed from the approach taken by his predecessors in 2013 and 2017.

The disputes over judicial appointments and BBI remain central episodes of his public service. His career also spanned private practice, legal education and judicial administration.

CJ Koome said his “contributions to the administration of justice and the development of Kenya’s legal institutions” would remain part of institutional history. She extended condolences to his family, colleagues and friends.

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