Meet Nakuru surgeon taking on Ruto government with public interest litigation
Dr Magare Gikenyi, a consultant Trauma and General Surgeon has been fighting for justice and the rule of Law in Nakuru City in his office on February 24, 2024.
"I recall my brothers and I being pushed to the side of the spring as other boys from our village fetched water. Sometimes the other boys didn't even want to fetch water.
"So we stood there and watched them. That was the price we had to pay for being poor."
These are the words of Magare Gikenyi, a Nakuru doctor who has become the new thorn in the flesh of President William Ruto's government.
He has filed a string of petitions challenging what he has consistently argued is the infringement of the Constitution.
But his ‘public interest’ petitions did not start with President Ruto; he did so for his predecessor Uhuru Kenyatta having felt the sting, as well as Nakuru Governor Susan Kihika.
Standing at five foot six inches tall, Dr Gikenyi is clad in a dark blue suit, white shirt and a red tie.
He spots a high fade haircut that seamlessly connects with his thick dark unmanicured beard.
He gives a firm handshake to the ‘Nation’ crew while apologising for keeping us waiting.
This was not the first time I was meeting Dr Gikenyi.
In fact, we initially met in late 2022, at Tower One, the building where the Nation Media Group Nakuru Bureau office is situated.
At that time, he had just successfully filed an injunction stopping the vetting of the proposed County Executive Members by Governor Kihika on the grounds that the list of nominees failed to reflect a national outlook according to section 35 of the County Government's Act, 2012.
The act says; “The governor shall, when nominating members of the executive committee, ensure that to the fullest extent possible, the composition of the executive committee reflects the community and cultural diversity of the county.”
Nakuru prides itself in being a melting pot of all ethnic groups in Kenya, owing to its central geographic location.
"If you look at the Nakuru County case, the governor had picked most of the CEC nominees from one tribe. The way I see it, counties, just like the national government, is are like a cake, and since we all are children of this mother called Kenya then let us all have a piece of that cake," he explains
The governor eventually made changes to her list of nominees and they were vetted and sworn into office.
However, this is not the beginning of Dr Gikenyi's story and his aptitude to swap roles from his surgical scrubs and a scalpel at the hospital; to the corridors of justice where some of his legal petitions have caught the country's attention.
Dr Magare Gikenyi, a consultant Trauma and General Surgeon.
It starts in Mokonge village, Kisii County 40 years ago when he was born to Thomas Magare, a primary school teacher and his second wife, Rose Kerubo, a farmer. He is the third born in a family of seven children, but in total, he has 15 siblings.
"We were poor, my father could not feed all of us," he adds.
He went to three primary schools due to lack of fees. He sat the Kenya Certificate of Primary Education examinations in 1995 at Riakemoni Primary School and scored 515 out of 700 marks. His sterling performance earned him admission at Kisii School.
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"I was in and out of school again due to lack of fees. The school came up with a work-for-fees programme, that is how I was able to sit my KCSE exams," he says.
This wasn't an easy arrangement though.
Education
Dr Gikenyi recalls waking up at 3am to milk the cows at the school, missing the morning preps. Once the lessons of the day were over at 3pm in the afternoon, he would pick up coffee at the school.
When he sat his KCSE in 1999, he scored a grade B+ plus, but that is not the score he wanted. He had a dream of becoming a doctor and the only way he could get university admission was if he attained a grade A.
So the next year, young Gikenyi enrolled at Riakemoni Secondary School in his village to make another attempt at getting the grade he desperately coveted - an A.
"I wanted to be a doctor because I had first hand experiences of not getting access to quality healthcare. The nearest dispensary from where we lived was in Kionyo and when you went to that dispensary you would have to wait for hours before you were attended to even when there are not so many people at the hospital on that day. I wanted to change that," he says
At Riakemoni Secondary School, Dr Gikenyi recalls doubling up as an untrained teacher, this was his bargain to cover up his persistent lack of fees which his brains made up for to a huge extent.
"I taught the lower classes Mathematics and Chemistry, including my classmates and did my own studies at the same time," he adds.
For Dr Gikenyi, education is an equalizer and he is testament of how fortunes can change when a child gets an education.
"This is why I filed the petition that has suspended the government directive for parents to pay fees through e-Citizen. What happens to that child whose parents have a goat or a sack of maize or beans because, for some of us, this is how our fees were paid, in kind,” he says.
So passionate is Dr Gikenyi about education, that he qualifies it as the best inheritance a parent could give to a child. And his underprivileged background served as the best catapult for his drive to succeed.
" When I was admitted at the University of Nairobi, I got a reprieve through the Higher Education Loans Board, but to supplement my living, I sold airtime to my collegemates while working at the library," he said.
Graduating in 2007, with a Bachelor of Medicine and Bachelor of Surgery (MBChB) Dr Gikenyi interned at Thika Level 5 Hospital in 2008 before joining Nakuru County's Health Department in 2009, serving in different hospitals within the county.
In 2017, he proceeded for his Masters of Medicine in General Surgery at Moi University, working at the Moi Teaching and Referral Hospital. It is while studying here that Dr Gikenyi would file his first Judicial Review seeking the court's assistance to help him complete his studies.
The entrance to Moi University's main campus in Kesses, Uasin Gishu County on February 08, 2024.
The genesis
It all began when he differed with his supervisor, a visiting American surgeon, on America's politics.
At that time, President Donald Trump was in power, and being a supporter of President Trump, Dr Gikenyi engaged his supervisor, a supporter of the losing Democratic candidate Hillary Clinton, on casual banter while in the operating room. That conversation alongside a series of events later would see him suspended from his studies.
"I had proceeded for my leave and when I came back, I was told I had been suspended after my supervisor wrote a memo saying I was not a good doctor and had been referring surgical patients to facilities outside MTRH," he explains.
He sought the advice of his elder brother, a lawyer and the first Judicial Review of the year 2018 at the Eldoret Law Courts reinstated Dr Gikenyi to resume his studies.
"The courts agreed with me. I was suspended without being heard. The university also investigated the incident and they found it was a witch-hunt," he says.
That was an Aha! moment for Dr Gikenyi and the beginning of his seven-year experience of filing Judicial Reviews on matters of public interest.
"When I got help from the courts, I decided to fight for Kenyans, and for the improvement of the society through the Judiciary," he quips.
If the Judiciary was corrupt yesterday, it’s still corrupt today.
Fighting for his rights and those of other Kenyans, as Dr Gikenyi puts it, seems like a full circle moment. Now, he is more emboldened and no longer that voiceless boy who was ostracised by his peers while growing up because he was poor. He believes that what he does is what every other Kenyan who has risen from nothing should do. Pay it forward. Make the world a better place than you found it.
" A hundred years from now none of us will be alive. What is important though is we need to leave a solid legacy for the future generations so that they can get their rights without struggling," he says.
According to Dr Gikenyi, he has filed 21 Judicial Reviews on a variety of issues. He opposed the non- appointment of six judges during former President Kenyatta’s tenure. President Kenyatta had defended his decision, saying those judges had questionable character but Dr Gikenyi alongside the Katiba Institute opposed that decision in court.
"The former President ( Uhuru) was subjecting the judges to what I went through and that is condemning them without being heard. If there is a problem with a judge there is process of removing through article 168 of the constitution you just can't cherry-pick, and the 3 judges who heard that petition agreed with us," he explains.
During the start of the Covid-19 pandemic, Dr Gikenyi took on the Ministry of Education which, while responding to the global health crisis, had decided to suspend the first term.
"I moved to court here in Nakuru and during the case, the ministry realised they would lose, changed their mind and decided the first term would be considered. I was happy to have helped Kenyan children preserve one term because that is time they could not have gotten back," he says
Another Judicial Review that thrust him to national fame in 2023, is the injunction against the introduction of fees and increment of government services like application for Identity Cards, passport applications, among others.
"The majority of those seeking IDs have just completed Form Four, where do you expect them to get Sh1,000? You can't make a policy about people and at the same time not involve them,” he adds.
This year alone, he has not only temporarily halted the payment of school fees through e- Citizen but also filed a petition to have tax exempt organisations, among them churches pooled into the tax bracket. In his defence, Dr Gikenyi explains that he is a devout Catholic and has no vendetta against religious institutions.
"I agree that we are over-taxed and that is not good. Article 201 of the Constitution says the tax burden should be share equally and equitably to all sectors of the economy note the word all, so let all sectors of the economy carry the tax burden," he says
In 2021, this doctor petitioned the courts to have fathers enjoy a three-month paternity leave upon the arrival of their children instead of the two weeks currently provided in law. The court dismissed this petition then but Dr Gikenyi has since appealed it.
"In medicine, health is more than just the physical state and so when a child is born there is a psychological role a father plays in the child's development. It's been said that what a man can do a woman can do better but what if in this case, fathers can also be better nurturers?" he asks rhetorically.
We both pause for a moment just to let that statement sink in. In my mind, I am baffled by the ease with which Dr Gikenyi has invested in understanding the Constitution and using that as the basis of his success at the courts.
"Do you file these petitions on your own or do you get help?" I ask
"I file them on my own. I have an elder brother who is a lawyer in Eldoret. I spent my free time when I was studying for my masters at his office. I saw how these things were done and I learnt by apprenticeship. My brother only helped me draft my first Judicial Review," he explains.
So how does this surgeon who is on call 24/7 juggle his main job and filing petitions?
"It's a tough balance but I try to make the best out of everything. During the day I am at work and I always strive to be home by 5pm to spend time with my family. When I have a pressing issue that I need to file, I will be at home but hunched over my computer on the Judiciary's portal filing the petition electronically and it can take an entire night just to make a submission," says Dr Gikenyi.
He says most of the petitions he has filed are self-sponsored. I cannot help but wonder if sometimes the funds to file some Judicial Reviews come from external sources.
" Are you a gun for hire?" I ask.
"No, I am not, I move to court grounded facts and not opinions. I will not make personal petitions. If that was the case Kenyans will be against my petitions. Nine out of 10 of my petitions are positively welcomed by Kenyans," he responds
There is also a dark side to public litigation. Threats.
"I have received physical and virtual threats to withdraw some of the petitions I have filed but I usually decline and prefer waiting for the court's verdict, " he says
What keeps Drl Gikenyi going is his desire to make a difference in society. He hopes to write an autobiography of his life some day and when you don't find him engaging in social and political banter, he is cheering on Arsenal, his favorite football team in the English Premier League.
"You don't have to be a politician to be involved in policy. People really underestimate how administrative decisions affect their daily lives and this is why I do what I do," he concludes.
Dr Gikenyi has since gone back to school to study law. He says he was saved by the law and now it is time to master it.
DR. Gikenyi's notable petitions
- 2024, Petition of equitable and fair distribution of tax burden against all sectors of the economy- Ongoing
- 2022, Petition against Nakuru Governor Susan Kihika for nominating CECM's(county executive committee member) mainly from one ethnic community- Win
- 2021, Petition against Ministry of Education's cancellation of term one in 2020 due to the Covid-19 pandemic.- Win
- 2021, Petition on government granting MCA's 2mlllion car grant to pass BBI- Loss due to lack of sufficient evidence
- 2021, Petition on government granting MCA's 2mlllion car grant to pass BBI- Loss due to lack of sufficient evidence
- 2023, Petition against Health CS Susan Nakhumicha's re-oganisation of the Ministry of Health as announced in 19th April 2023 memo. Win appointments were quashed except that of Acting Director General Dr. Patrick Amoth.
- 2023, Petition against government action of arbitrary increase of ID cards, passports and other government documents charges - Win
- 2023, Petition against Ministry of Education circular to have school fees paid through eCitizen -Win
- 2021, Petition on parental leave ensuring both men and women get equal maternity and paternity leave- Dismissed but the case is on appeal
- The 2022 petition on Safaricom Bonga Points expiry- Ongoing
