His appearance before the JSC is certainly the most awaited of all the interviews for the post of Chief Justice. Pundits place him ahead of the pack and so do ordinary observers. Admitted to the bar in 1980, he has 40 years plus experience in legal practice – more experience than not only all the other candidates but all those lawyer members of the JSC who will be interviewing him.
Mr. Ngatia is currently running a solo practice in Nairobi at ACK Bishop Towers under the name and style of Ngatia & Associates advocates. From a perspective of number of staff or volumes, his firm may be considered small as compared to big players such as Anjarwalla & Khanna, Coulson & Harney, Kaplan & Straton, Hamilton Harrison & Mathews (HHM), MMC Africa and IKM.
But the size of Ngatia’s firm should mislead one to imagine he is a small hitter. Quite to the contrary, he is the most sought advocate in do-or-die matter due to his winning abilities. In 2019, he was ranked amongst a few others as the top lawyer in dispute resolution in Kenya by the global lawyers’ audit firm Chambers and Partners and this is what the report said of him:-
“Fred Ngatia was recently conferred the rank of senior counsel, and is notably at the forefront of constitutional and judicial review actions in the country. His practice also includes public procurement litigation. His peers say his “arguments are always well reasoned and concise,” adding that “he is extremely intelligent.”
True to the ranking statement, there is no doubt that Ngatia is a person who possesses a high level of intelligence. He makes his argument in a soft, slow crisp voice moving from premises to premise before reaching a water tight conclusion of his arguments.
He was born in 1956 in Laikipia County but is said to have roots in Mathira within Nyeri County. He is therefore 65 years and if successful, would only be the Chief Judge for 5 years only.
He began his legal career journey at the University of Nairobi where he graduated with a degree in law (LLB) in 1979 and then proceeded to the Kenya School of Law where he obtained a post graduated diploma in law in the year 1980. He was subsequently admitted to the roll of advocates in the same year – 1980.
His practice commenced at the State Law office where he worked as a state counsel for 7 years. In between, he proceeded to the London School of Economics & Political Science where he undertook and was awarded a Masters Degree in law from the University of London in 1984. His Masters Degree thesis was entitled “The legal difficulty in delimiting the Kenya/Sudan boundary”. He continued to work at the State Law office only leaving in 1987 to run a partnership that was known as Kagia and Ngatia Advocates till 1996. He thereafter went solo and has remained as such to date. He recently earned a Masters of Applied Philosophy and Ethics from Strathmore University in 2019. In the year 2020, he was conferred with the rank of Senior Counsel.
He is not only a highly experienced lawyer but a connected one as well. He has handled high level matters and precedent setting cases for President Uhuru Kenyatta, the Republic of Kenya, Ministries including the Ministry of Interior and Coordination of National Government, high profile individuals such as Billionaires Vimal Shah of Bidco, Narendra Raval of Devki Steel Mills Ltd, major corporates and parastatals. Some of the major cases he has been involved in include the following:-
- 2013 – Raila Odinga Vs. Uhuru Kenyatta – The presidential petition where he won and had the Petition dismissed.
- 2017 – Raila Odinga vs. Uhuru Kenyatta – The presidential petition which he lost.
- Judicial Commission of Inquiry Goldenberg Affair – he represented former late Vice President George Saitoti who upon being mentioned adversely by the Bosire Commission he proceeded to obtain a controversial court order expunging certain findings against him from the report. This finding was among the reasons for Judge Justice Nyamu lost his job during Vetting after he was accused of “…contributing to a culture of impunity by judicial frustration of efforts to investigate alleged large-scale corruption.”.
- Represented a number of Judges including Deputy Chief Justice Philomena Mwilu & Justice Onyancha before the Judges and Magistrates Vetting Board, Justice Hatari Waweru in a defamation case against Mediamax Networks Ltd
- Represented British American Asset Managers Ltd against Cytonn Investments Management Limited and Acorn Group Limited
- Alongside Kioko Kilukumi represented Francis Karioko Muruatetu and Wilson Thirimbu Mwangi in the now famous case (Muruatetu decision) at the Supreme Court which abolished the mandatory nature of the death sentence in murder and Robbery with Violence cases.
- Extradition Case – represented Samuel Kimuchu Gichuru and Chris Okemo against the extradition to Jersey where the Court of Appeal in a precedent setting case determined that the AG rather than the DPP is the one who was to process the request.
- Miguna Miguna deportation case – He represented the Ministry of Interior and Coordination of National Government as well as the Director of Immigration Service where he returned to court a perforated passport.
- He was a key witness during the removal of former Justice Mutava from the bench for misconduct.
There is no doubt that Fred Ngatia, SC is a brilliant advocate who fully qualifies for the position of Chief Justice. He has been on the right side of the Jubilee government from inception to date. Having represented the President at his greatest hour of need, he has shown that he can be trusted by the executive and may win the hearts of the majority government leaning commissioners of JSC as well as the government side if he proceeds for vetting before Parliament. The frosty Maraga experience must have taught Uhuru Kenyatta that he needs a CJ he can relate well with. Uhuru loves trusting his personal lawyers with huge portfolios. That is why Ken Ogeto is Solicitor General and Gershom Otachi is NLC Chairman. It wouldn’t be a surprise if his Lawyer becomes Chief Justice.
However, his affiliation with the state may also be counterproductive and hurting to his interests. His appointment will appear not to bode well for judicial independence and separation of power since he may be deemed to be a puppet of the state and the Jubilee Party.
His role in controversial cases may also be raised including his appearances before Judges who were his clients such as Justice Onyancha in the Britam Vs. Acorn cases. On the issue of ethnicity, the fact that Hon Njoki Ndung’u is on the bench at the Supreme Court is an upset.
Though the Commission is under a duty to ensure that there is ethnic diversity, it would amount to discrimination on grounds of ethnicity (contrary to Article 27 of the Constitution) to solely deny the Senior Counsel the position on the basis of his ethnicity alone. Section 7 of the National Cohesion and Integration Act, 2008 imposes an obligation on all public establishments to seek diversity of the people of Kenya in employment of their staff and that not more than one third of the staff may be from one ethnic community. It would appear that having 2 Kikuyus on the bench would not breach the 2/3 ethnic diversity rule.
Though he hasn’t openly supported any side of the government outside court, it will be interesting to watch how this Senior Counsel will meander through questions particularly those pertaining to his political affiliations.
Surprisingly, Nelson Havi the LSK President in his Memorandum to the JSC adversely mentioned a number of Applicants such as Prof. Kameri Mbote, Lady Justice Koome and Phillip Murgor but not Fred Ngatia. The only entity that has publicly opposed his candidature is the Atheists Society of Kenya which claims that Ngatia is unsuitable due to his closeness with the executive.
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