The Office of the Attorney General has come under scrutiny following concerns raised by the High Court in Kitale over its apparent reluctance to appear in court and represent the government in cases where it is named as a respondent.
Justice Robert Limo made the remarks following the repeated failure by the Office of the Attorney General to appear in court during the hearing of a constitutional petition filed by Kitale-based businessman Bonface Ndura, who is challenging Kenya’s bigamy laws.
“The Office of the Attorney General has been missing in action, not only in this matter but in many other matters involving the government, leaving the public exposed,” Justice Limo said.
He directed the court’s Deputy Registrar to write to the Office of the Attorney General seeking an explanation for the apparent failure to attend to matters involving the office before the court and to establish the reasons behind the continued non-attendance. The directive underscores the court’s concern over delays in the administration of justice caused by repeated absences.
The petition, which was filed in 2024, has never had a representative from the Office of the Attorney General appear before the court, despite the office being the principal respondent in the matter. The absence has contributed to repeated adjournments and delays in the hearing process.
On several occasions, the Attorney General’s office has communicated that its officers were unable to attend court due to personal reasons, forcing the court to adjourn the proceedings and set the matter down for hearing on another date. These repeated adjournments have raised concerns about the efficiency and accountability of government legal representation.
Addressing the media outside the court, Mr. Ndura’s advocate, Wanyama Mutaki, welcomed Justice Limo’s decision to direct that a formal complaint be lodged against the Office of the Attorney General over its apparent reluctance to respond to the petition. He accused the office of repeatedly shifting the goalposts and delaying the determination of the matter.
“We were prepared to highlight our submissions, but the absence of a representative from the Office of the Attorney General has made it impossible for the matter to proceed. We share the court’s concern over the continued non-attendance by the Attorney General’s office. We now have to wait for the mention of the case on July 29,” said Mr. Mutaki.
In his petition, Ndura contends that Kenya’s existing marriage laws are discriminatory because they prohibit Christians from entering into polygamous unions while permitting the practice under certain other religious and customary legal frameworks. The petition raises key constitutional questions on equality and freedom of religion.
He contends that key sections of the Penal Code and the Marriage Act, which enforce monogamy for Christian marriages, violate Articles 32 and 45 of the Constitution, which guarantee freedom of religion and the right to marry according to personal beliefs.
