The Guy Who Went to Alliance


The Guy Who Went to Alliance

Justice Isaac Lenaola isn’t exactly your typical Alliance High School guy, the ones who never tire of reminding you that they went to Alliance. But be that as it may, Isaac Lenaola is still an Alliance guy. Top of his class in 1986, Lenaola attained the best possible score in the A-Level examination in Kenya, no mean feat for the boy from Maralal in Samburu County. It wasn’t therefore surprising that the self-described pragmatic liberal was appointed judge of the High Court in 2003 aged 36, joining an exclusive club which until then comprised justice (retired) Emmanuel O’Kubasu who made judge at 35, and justice Msagha Mbogholi who joined the bench aged 34 and still serves in the High Court.

Lenaola first shot into public limelight in 2002 when he was appointed a Commissioner to the Prof. Yash Pal Ghai led Constitution of Kenya Review Commission (CKRC). But as Lenaola took his place, while still working as Partner and Head of Litigation at Maina Wachira and Company Advocates, the CKRC faced headwinds as civil society and religious leaders initiated a parallel constitutional review process dubbed the Ufungamano Initiative, domiciled at Ufungamano House and led by Dr. Oki Ooko Ombaka. Prof. Ghai reached out to the Dr. Ombaka group, and the two camps joined forces in an expanded CKRC. Lenaola survived as a Commissioner and only left in 2003 to become a judge.

Starting out as the resident judge in Embu, then Meru, then Machakos and Kakamega, Lenaola’s judicial run in the High Court culminated in his elevation to Presiding Judge of the Constitutional and Human Rights Division in Nairobi, from where he delivered some of his most memorable judgements, anchored in his pragmatic liberalism where the law must always appreciate the societal context without being over ambitious as much as to step outside the Constitution, as if to say be progressive, but do not believe your own hype to the point of breaking sacrosanct constitutional rail guards.

However, if anyone mistook Lenaola for a playing safe-type, then they were mistaken.

In 2013 Lenaola ruled that a petitioner who was seeking to register a Lesbian, Gay, Bisexal and Transgender (LGBT) organisation had had their rights violated by the Non-Governmental Organization Board when it declined to give the greenlight for such registration. In what was a judicial milestone for the LGBTQ+ community, the judge reasoned that he wasn’t necessarily supporting the petitioners’ sexual orientation — a dicey matter constitutionally — but that he was upholding their constitutionally given right of freedom of association. It was a win orchestrated within constitutional safeguards.

That same Lenaola delivered a judgement in which he found the Railway Pension Board had violated the rights of its tenants in Muthrwa when it un-procedurally sent bulldozers to demolish hundreds of homes at dawn. Lenaola tasked the state to further explain existing state policies and legal framework of forced eviction and demolitions in Kenya in line with the international standards. Lenaola’s judgement was later adopted into the Lands Act of 2016, setting precedent on how evictions are to be carried out.

As the gift that keeps on giving, in yet another landmark ruling in 2014 which involved an intersex child who had been denied a birth certificate, Lenaola directed that the baby be issued with the same and that in addition to that, the Government of Kenya needed to put in place a task force to look into the rights of intersex persons, including their enumeration. It is out of that groundbreaking verdict that persons who identify as intersex were included as a category during the 2019 national census.

It was in the same spirit that in a judgement read on his behalf by High Court judge Justice Chacha Mwita (Lenaola had listened to the case, made a determination and was about to render the verdict when he was elevated to the Supreme Court), Lenaola awarded second-liberation stalwart Kenneth Njindo Matiba damages of close to KSh 1 billion as compensation for the suffering and loss of income he suffered in the hands of state as a political detainee, in which detention he suffered a stroke.

Out of the foregoing, it is safe to say that one of Lenaola’s strong lenses is human-rightist in nature, borrowing not only from the Kenyan context but looking outward at gains made globally in the rights realms, balanced with his pragmatic liberalism of pushing the envelope just enough, never too much.

It is possibly out of this internationalist outlook at the practice and application of the law that Lenaola always sought to expand his jurisprudential reach and influence beyond Kenya, where much as he served at the High Court he also doubled as a judge in various regional courts and tribunals.

There was a stint at the East African Court of Justice starting in 2011, where as a Deputy Principal Judge of the lower court in 2015, Lenaola issued a ruling barring the Tanzanian government from constructing a road cutting through the Serengeti National Park, arguing that the planned tarmac road from Loliondo to Mugumu/Natta was unlawful and would damage ecosystem of one of the world heritage sites. Earlier in 2013, Lenaola served as a judge in the Residual Special Court for Sierra Leone.

It was in the course of juggling these local and regional judicial assignments that Lenaola was picked by the Judicial Service Commission — in which he had served as a member between 2010 and 2013 — as a judge of the Supreme Court in October 2016. A year later, Lenaola found himself sitting as part of the second ever Supreme Court bench to adjudicate in a presidential election petition. Alongside Chief Justice David Maraga, Lenaola and two other justices formed the majority which annulled the vote and ordered for a repeat presidential election. And when that repeat election was challenged, the court unanimously upheld it, possibly not keen on annulling two presidential elections back to back.

Over time, Lenaola has collected an array of accolades, including being named jurist of the Year in 2019 by the International Commission of Jurists (ICJ), and being bestowed with rank of the Chief of the Burning Spear (CBS) in 2022, in addition to his Moran of the Burning Spear (MBS). Lenaola is a Fellow of McLaughlin College, York University, Toronto, Canada and a Fellow, Chartered Institute of Arbitrators (FCIArb). The University of Nairobi alumnus somehow still finds time to serve as president of the Advisory Council of the Strathmore Institute for Advanced Studies in International Criminal Justice (SIASIC) and president of the International Association of Refugee and Migration Judges (IARMJ).

At 54, the low-profile-keeping and occasionally jazz-jamming Lenaola faces his third presidential election petition, and pundits are cracking their minds as to which way the judge will vote, to annul or not to annul. A video recording of Lenaola decrying the limited time within which judges must listen to the presidential election petitions and render a decision has been doing the rounds, with Lenaola saying the 14 day window is insufficient. Critics have tried to throw the video at the judge, but the video hasn’t stuck. The judge has been indifferent, busy making the 14 days work for him.

But be that as it may, the fact that Lenaola comes into the petition with a history of having nullified a presidential election before means that if he finds merit in the petitioners’ case, the guy from Alliance may not hesitate to burst president-elect William Ruto’s bubble. But if Lenaola applies his pragmatic liberalism and finds the grounds not too overwhelming despite the existence of some irregularities and illegalities, then Ruto may survive. All eyes are on the guy who went to Alliance and his mates.


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