Omtatah, MP lose case challenging the validity of new currency

Saturday, September 28th, 2019 00:00 |
Activist Okiya Omtatah moved to court yesterday seeking to stop the President from extending the BBI team’s mandate. Photo/PD/FILE

The High Court on Friday dismissed a suit challenging the validity of the new currency.

Activist Okiya Omtatah and EALA MP Simon Mbugua had filed the suit separately contesting the use of the image of founding President Jomo Kenyatta's statue, claiming it was a portrait.

However, in a judgement in which one judge dissented, Justices Kanyi Kimondo and Asenath Ongeri ruled that the image of the founding President Mzee Jomo Kenyatta was not a portrait as alleged by the two.

“The said statue does not fit the definition of a portrait as stipulated in the Constitution,” ruled Justice Kimondo.

The two judges said the statue as presented in the new currency notes is not frontal and does not appear in isolation as in the old notes, and that it was part of KICC.

“None of the petitioners was able to demonstrate that the impugned image is either a portrait or a sculpture,” said Justice Kimondo.

The judges further dismissed claims that there was no public participation. They said the general public was adequately involved in the new designs, noting that two gazette notices were issued by the Central Bank of Kenya (CBK).

“There was adequate public participation in the printing of the new design. The respondent also sought an opinion from the Attorney General after the Cabinet approval of the new designs,” ruled Justice Kimondo.

Justices Kimondo and Ongeri further ruled that the withdraw of the old Sh1,000 notes by CBK was valid.

“We find that the respondent had powers to withdraw the 1,000 notes and that it notified the public about the withdrawal... the period of four months was reasonable,” noted judge Kimondo.

According to the two judges, CBK had the power to withdraw the one thousand notes in order to stem illicit financial flow which included corruption, money laundering, terrorism and counterfeit notes.

In a dissenting judgment, Justice Antony Mrima noted that the images used in the currency should not be of recognisable or identifiable persons.

“The promulgation of the new Constitution marked the rebirth of the nation. Kenyans desired a change from associating currencies with any person, communities or even political leadership,” he ruled.

He noted that the image of Mzee Jomo Kenyatta is easily recognisable as that of the founding father of the nation and that it is enlarged and it is not proportional to the tower.

He opined that the image of the impugned statue on the new currency notes infringes the permissive part and as such contravenes the Constitution.

“On remedies, since the new currencies are already in circulation I would have suspended the declaration of the invalidity of those notes for a period of at most one year so as to accord the respondent time to issue legally–compliant currency notes,” he ruled.

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