State officers who make charged remarks which land them in court are entitled to representation by the Attorney general and not counsels at their expense, a court has affirmed.

High court judge Anthony Mrima ruled in a case involving former interior CS Fred Matiang'i that the officials remain firmly protected and will be defended in court by the AG for any infraction that does not teeter to criminality.

In the case, Matiangí was sued for his utterances during a heated campaign stop in Kisii and Nyamira counties during the 2017 presidential polls cycle 

At the time, he was drumming support for then-president Uhuru Kenyatta and his deputy William Ruto to be re-elected for a second term.

Clips that emerged showed the former CS speaking in his native Kisii and which were translated to suggest he was warning that he would unleash proscribed ethnic groups from the region on people opposed to the political direction he was taking.

The remarks in question were allegedly made by the former CS on October 20, 2017.

The petitioner also took issues with the remarks he made on October 10 and 11, 2020 which were now against Ruto.

One John Kaburi petitioned to court to have sanctions levelled against Matiangí. He also applied to have the court disqualify the AG from representing him in the matter.

“It was the Applicant’s case that the 1st Respondent [Matiangí] was sued in his personal capacity and not in his position as the Cabinet Secretary for the Ministry of Interior and Coordination of National Government which he held and as such he ought not to be represented by Hon. Attorney General or the Government.”

“The Applicant recounted that the Petition was only calling upon the 1st Respondent to account for his conduct in the context of the inciteful remarks he made in public.”

At the time, he was drumming support for then-president Uhuru Kenyatta and his deputy William Ruto to be re-elected for a second term.

Clips that emerged showed the former CS speaking in his native Kisii and which were translated to suggest he was warning that he would unleash proscribed ethnic groups from the region on people opposed to the political direction he was taking.

The remarks in question were allegedly made by the former CS on October 20, 2017.

The petitioner also took issues with the remarks he made on October 10 and 11, 2020 which were now against Ruto.

One John Kaburi petitioned to court to have sanctions levelled against Matiangí. He also applied to have the court disqualify the AG from representing him in the matter.

“It was the Applicant’s case that the 1st Respondent [Matiangí] was sued in his personal capacity and not in his position as the Cabinet Secretary for the Ministry of Interior and Coordination of National Government which he held and as such he ought not to be represented by Hon. Attorney General or the Government.”

“The Applicant recounted that the Petition was only calling upon the 1st Respondent to account for his conduct in the context of the inciteful remarks he made in public.”

He told the court that it was inappropriate for the AG to use taxpayers’ shilling to defend the CS for the alleged infractions he committed while on personal political campaigns.

“It was submitted that the seriousness of the inciteful remarks was not in the public interest and necessitated that the Petitioner be held personally accountable as they were meant to unjustly cause tribal chaos.”

In response, advocates for the AG said that Matiangí acted as a state officer and hence was clothed in the protection of Section 2(1) of the National Government Coordination Act “and as such, all legal proceedings against him, except criminal proceedings, the Hon. Attorney General ought to represent him.”

The AG also argued that the government was an abstract entity whose life is only relative to the people filling the offices and that the people have immunity from personal liabilities arising from the actions.

As per Section 22 of the National Government Coordination Act, nothing done by a public officer in good faith could render such an officer personally liable, it said.

In determination, the court found that the utterances made by Matiangí were in the context of addressing a security situation in the country, which was within remits of his interior docket.

He was therefore discharging his duty, hence deserved the defence by the AG.

“From the translation of the words tendered by the Petitioner, it appears that the words were uttered while the 1st Respondent was addressing security concerns surrounding the then pending General elections. …. it goes without saying that security in relation to the elections was one of the duties under the docket of the 1st Respondent," the judge ruled.

The court is yet to substantively determine the petition.

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