End of an era as Judiciary’s old hands prepare to exit the stage

Chief Justice David Maraga. [Photo, Standard]

A new dawn in the Judiciary is unfolding, following the retirement of the first batch of senior judges trained in the 1970s.

In the new wave of retirement, three of the most experienced judicial officers are poised to exit the stage after collectively dispensing justice for over 100 years.

Appellate judge Erastus Githinji, who is the longest serving judge having worked at the Judiciary since 1975, Justice Philip Waki and Justice Alnashir Visram, are to retire this year.

The Judicial Service Commission has started the process of recruiting suitable candidates to replace them, along with others who have since left.

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It is these judges who have walked the long road to the transformation that has brought independence in the Judiciary.

Chief Justice David Maraga advertised, in a Gazette notice on Friday, 11 slots in the Court of Appeal. An applicant is required to have at least 10 years’ experience as a superior judge, be an academic or legal practitioner in Kenya, or Commonwealth country with common law jurisdiction.

The 11 slots to be filled include those to be left by the three judges, as well as vacancies created following the appointment of Maraga and his deputy Philomena Mwilu to the Supreme Court, as well as the appointment of  Kihara Kariuki as the Attorney General.

The Judiciary is to also replace Justice Rt John Mwera, Festus Azangalala, Anyara Emukule and GBM Kariuki, who have since retired.

The three judges are to retire at the age of 70, as per a Supreme Court decision that set the age limit for judges.

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In the recent reshuffle, in which Maraga moved appellate judges who had served for two years or more in their stations, the Judiciary’s communications deputy director Catherine Wambui said Justices Waki and Visram could not be transferred due to their impending retirement this year.

“Though Hon Justice Erastus Githinji is also due to retire, he has been moved from Nairobi to Kisumu,” Wambui said.

Justice Githinji survived two purges that saw several judges and magistrates sent home.

In one of the most memorable cases, the judge did not agree with judges Hannah Okwengu and Jamila Mohammed regarding who between a man and a woman should maintain the other.

He pointed out in his ruling, that generated a lot of debate, that the country had embraced Article 45(3) of the Constitution that marriage is made of equals, hence it would be unfair not to open doors for men to claim maintenance from their wives.

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Justice Githinji was in a five-judge bench that ruled that direct financial contribution applies when splitting property between divorced couples.

The judges made the ruling in a case in which the late Priscillah Echaria had sued her former husband, ex-diplomat Peter Echaria, demanding 50 per cent of the matrimonial Twiga Hill Farm property.

Justice Visram, who has served as a judge for 20 years, plans to continue with his passion for mediation as a trainer, as well as being involved in arbitration work.

Appointed CJ

Born in Kisii in August 1949, the judge was appointed High Court judge in 1999 and later on promoted to the Court of Appeal. He has served in Nairobi, Nakuru, Kericho, Eldoret, Kitale, Mombasa and Nyeri.

Former President Mwai Kibaki appointed him the CJ in 2011, but his elevation was opposed by then Prime Minister Raila Odinga, forcing Kibaki to back down and involve the Judicial Service Commission in the appointment of a Chief Justice.

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Some of the sad cases he says he has handled during his tenure always involved family succession, where brothers were pitted against brothers, sisters against sisters, and children against parents in land cases.

And with the workload and transfers in the Judiciary, most judges try to strike a balance between work and families.

“I have always strived to maintain a fair balance between work and family, but that’s not always possible. I have a very understanding and supportive family,” said Justice Visram.

On his biggest achievements, Justice Visram said that as the presiding judge of the Court of Appeal in Nyeri, they were able to clear an entire backlog of 600 cases in 2014 and brought Nyeri to real time in hearing appeals.

“Real time hearings were unprecedented in Kenya before. It’s a first for Kenya and possibly for the Commonwealth,” he said.

Last year, the Court of Appeal in Malindi, under the leadership of Justice Visram, Martha Koome and Wanjiru Karanja, was ranked the best performing court for attaining 62 per cent reduction of case backlogs.

He was also in the bench that delivered a judgment that saw the Judiciary repossess its multi-million shilling property in Mombasa from a tycoon said to have grabbed it. It is the land on which the Judiciary is currently putting up the Sh445 million Justice Tower. 

When he retires in August, Justice Visram will be remembered as one of the judges who gave hefty libel awards against the media. He awarded the late minister Nicholas Biwott Sh30 million against Clays Ltd and Dr Ian West for defamation. 

Justice Waki, whose first appointment as a High Court judge was to clean up the rot at the Mombasa courts, was promoted to the Court of Appeal in 2003. 

In one of the landmark judgments he delivered, the judge said marriage should never be a ground for locking out daughters out from succession. The judge said arguments that daughters would get married are not a determining factor on distribution of the net estate of a deceased.

Male siblings in the Rono vs Rono case had argued that their sisters were not entitled to the estate pf their father because they would be married and move away. 

Most lawyers representing families whose dead relatives are held as collateral by hospitals use a ruling delivered by Justice Waki in 1998 to argue their case. 

In this decision, the judge said it would be equally repugnant to public policy to sanction the use of dead bodies as objects in the game of commercial ping-pong. 

Justice Waki is also remembered for the role he played as the chair of the Commission of Inquiry into Post-Election Violence (CIPEV) that prepared a document dubbed the “Waki Report”. 

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Court of AppealChief Justice David Maraga