Chief Justice Willy Mutunga given seven-day ultimatum to respond to petition

Willy Mutunga                PHOTO: COURTESY

By Standard Reporter

A petitioner has written to Chief Justice Willy Mutunga giving him seven days to act on a petition he filed mid-December, failure to which he will take constitutional action.

Daniel Rono had moved to court on December 12, last year seeking to stop JSC from recruiting judges and the Chief Registrar of the Judiciary pending hearing and determination of his petition.

Mr Rono, in his petition, wanted the court to stop the JSC from conducting any business of the commission pending the resolution of the disputes between itself and the former Chief Registrar of the Judiciary (CRJ) Gladys Shollei, as well as integrity allegations currently pending against six suspended members of the JSC.

Justice Lenaola consequently certified the petition as urgent and in a hearing, Lady Justice Mumbi Ngugi ordered the CJ to constitute a full bench to hear the matter.

The CJ has not done that, prompting the petitioner, through lawyer Morris Kimuli, to raise questions over the delay. In a letter dated January 29, lawyer Kimuli told the CJ: “The delay in dealing with this matter continues to hold in abeyance our client’s petition, which raises weighty matters with fundamental constitutional consequences. Our client considers this state of affairs to be an affront to the Rule of Law and its twin sister-constitutionalism.”

Kimuli further made it clear that the application was certified urgent and admitted for hearing during the High Court vacation, saying: “A delay in constituting a Bench to hear the matter defeats the certificate of urgency issued by the court. This casts in bad light the system of administration of justice and erodes public confidence in administration of justice.

“In the circumstances, and in order to forestall any further delay that will defeat our client’s petition, our client will file a substantive constitutional petition to compel action on the part of the office of the Chief Justice, unless action is taken within the next seven days. We hope it will not be necessary to do so.”

The letter also raised pertinent issues, among them the move by the JSC to recruit officers to serve in the Judiciary.

The lawyer sought to know why the JSC appointed the Chief Registrar of the Judiciary and also forwarded to the President names of individuals to be appointed judges pending hearing and determination of the petition.

This comes even as pressure continues to mount on the Judiciary over backlog of cases and slow delivery of justice.

There have also been supremacy wars pitting the Judiciary, the Legislature and Executive over the suspension of six JSC commissioners.

President Uhuru Kenyatta suspended commissioners Ahmednassir Abdullahi, Samuel Kobia, Christine Mango, Mohammed Warsame, Emily Ominde and Florence Mwangangi and set up a tribunal to probe their conduct.

However, following a court order, the six were reinstated and the tribunal blocked from probing them pending the hearing and determination of a petition filed by JSC challenging the constitutionality of the tribunal.

Constitutional lawyers who spoke to The Standard on Saturday on the telephone argue that the CJ could have delayed to constitute a three-judge Bench to hear Rono’s petition owing to bad blood between the Judiciary and Parliament.

Executive pressure?

Donald Rabala, an advocate, said: “In the light of fact that there has been bad blood between the Judiciary and Parliament, the CJ might have intentionally delayed the constitution of a full Bench to hear his (Rono’s) case. Anything targeting recruitment of judicial staff will be looked at as an extension of that war. Therefore it will not be farfetched to think that the CJ is frustrating his (Rono’s) efforts.”

“The Chief Justice has a responsibility towards public interest. Is he acting in public interest by delaying the whole issue?” he wondered.

Rioba Omboto, also a lawyer, said the CJ could be under pressure from the Executive following past and existing misunderstandings.

Omboto, who is also the Law Society of Kenya (LSK) North Rift Chapter Chair, said although the country is in dire need of judges, the matter should have been heard since it was certified as urgent.

“It could be intentional that the CJ has delayed to constitute a bench in this case because he could equally be facing pressure from the Executive. It is high time he (the CJ) constituted a Bench in that effect,” said Mr Omboto.