A fresh battle between judges whom former President Uhuru Kenyatta sidelined has reached the court.
The case filed at the Milimani High Court is a revisit by a second group of judges appointed by President William Ruto after he assumed power.
However, Uhuru’s actions now squarely fall on him as four Court of Appeal judges - Aggrey Muchelule, Weldon Korir, Joel Ngugi and George Odunga - demand that the Office of the President issue a public apology.
At the same time, the judges, including Environment and Lands Court Judges Judith Omange and Evans Makori, argue they were victims of impunity. They say there was no evidence produced either in public or before the Judicial Service Commission (JSC) to impugn their character and conduct.
They argue that despite serving as high-ranking judicial officials, they endured public humiliation.
“The President of the Republic of Kenya at the time, purporting to cite undisclosed intelligence reports, and in a move that further injured the petitioners’ standing in the estimation of ordinary, just, and right-thinking members of society, made public pronouncements portraying the petitioners as persons of questionable character and not fit to hold the offices of judges in the Republic of Kenya,” the petition reads in part.
Their lawyer, Elisha Ongoya, argues that the government has never acknowledged or offered redress for the delay in their appointments.
The JSC recommended justices Muchelule, Korir, Ngugi, Odunga, Omange, and Makori for the Court of Appeal and Environment and Lands Court on July 22, 2019, and on August 13, 2019.
President Kenyatta initially declined to appoint the entire list of 41 judges before softening his stand and appointed the first group of 34 judges in 2021. While defending his stand, the president said that he turned down their nominations “for failing to meet the required threshold”.
Despite several court orders, a case to have him impeached and another to bypass him, he still did not yield until Chief Justice Martha Koome assumed office.
Uhuru appointed the second group but left out the six judges. Despite a case to force Justice Koome to swear-in the six, Uhuru maintained that he would not be coerced.
Uhuru’s stance risks over Sh1.22 billion in taxpayers’ money. The first 22 judges are seeking over Sh1.2 billion, while Justice Muchelule’s group wants Sh21 million in compensation for lost income, with potential for general damages.
The Muchelule group was appointed by President Ruto on September 13 last year and was sworn into office the following day.
Stay informed. Subscribe to our newsletter
“The petitioners contend that the refusal, failure, and or neglect of the president to appoint them as judges in the respective courts in the face of clear provisions of the Constitution, a clear and unambiguous recommendation of a constitutional commission, and clear decisions of the High Court was a manifestation of unbridled impunity,” the court papers read.
Justice Muchelule has worn an affidavit on behalf of the six. He states that Uhuru’s refusal to appoint him and his colleagues, in addition to public utterances, painted them as persons who did not deserve to hold public office.
The two court cases may pit the Judiciary against the Executive.
Both groups, led by Justice Muchelule and Justice Wabwoto, have sued Attorney General Justin Muturi for keeping them off work unfairly.
The Attorney General is the principal legal adviser to the government of Kenya, and a member of the JSC.
The first group that sued are from the ELC and the Employment and Labour Relations Court (ELRC). They include justices Wabwoto, Jaqueline Mogeni, David Mwangi, Fred Nyagaka, Lilian Gathoni, Ann Yatich, Michael Ngolo, Lynette Omollo, Joseph Mugo Kamau, Annet Nyukuri, Emmanuel Mutwana and Christopher Kyania.
Others are justices Lucas Lepes, Joseph Oguttu, Ann Mwaure, Ocharo Kebiria, David Njagi, Bernard Odongo, Jemimah Wanza, Christine Noontatua, Stella Rutto and Jacob Gikeri.
According to the judges, their expectations were that they would be appointed after the JSC’s recommendation to the president.
In 2020, Uhuru claimed he did not appoint the 41 judges after receiving adverse reports about their integrity from the National Intelligence Service (NIS).
In the case filed by lawyer Adrian Kamotho, Uhuru argued that it would have been irresponsible to appoint the judges as they enjoy the security of tenure. In an affidavit filed on his behalf by former head of the Public Service Commission Joseph Kinyua, the president questions why the JSC never considered this adverse information against the judges.
“The President received adverse reports with respect to some of the persons recommended for appointments as judges after the names of the said judges were published in the media. The President believes that the Judicial Service Commission ought to have considered the information while arriving its recommendation,” argued Mr Kinyua.
But three High Court judges - James Makau, Lydiah Achode, and Chacha Mwita - ruled that Uhuru broke the law, and ordered the appointment of the judges within 14 days.
Uhuru, however, did not obey the orders despite multiple cases filed.