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‘Supreme Court yet to settle on presidential poll conduct’

By Kamau Muthoni | April 20th 2021

Justice Nduma Nderi is interviewed at the Supreme court building on April 19, 2021 by the Judicial Service Commission (JSC) for the position of Chief Justice. [Collins Kweyu,standard]

The Supreme Court has never settled on how presidential election results should be relayed, Justice Nduma Nderi argues.

The Labour Court judge yesterday said two different decisions, one on 2017 election by former Chief Justice David Maraga-led bench and in 2013 by his predecessor Willy Mutunga, have not yet resolved how the tally should be transmitted from the polling station to the tallying centre.

Justice Nderi said this during his interview for the post of Chief Justice.

“There is uncertainty in the law of resolving presidential election arising from the landmark decisions by the Mutunga one and Maraga one and the Supreme Court has the mandate to depart from its decision. Therefore, there is nothing wrong with the areas of disparities in interpretation,” he said.

Justice Nderi faulted the Court of Appeal for opening doors for sexual offenders to plead for lesser charges after the Supreme Court declared mandatory death sentence unconstitutional in Francis Muruatetu & another vs Republic (2017).

According to him, the court interpreted the Supreme Court’s judgement beyond what the Muruatetu case was intended for. He said releasing sexual offenders is harmful to the country.

“My concern is not about the judgement but how far the Court of Appeal went to deal with offences, which are harmful to the people of Kenya, especially sexual offences. The Supreme Court should seize the rare opportunity to deal with such problematic areas,” he said.

He was also asked why he left the country for Swaziland where he was an Industrial Court judge for eight years. The judge responded that death threats and an opportunity opening in the kingdom informed his decision to leave Kenya.

Real threats

“If you knew who Senior Superintendent Machiri was, if you knew what was happening at that time and having received real threats in the corridors of justice as a very young lawyer at the age of 28, you would understand. I also left the country because the Kingdom of Swaziland advertised for an opportunity in the country. I am courageous and very few people would have taken that position,” said Nderi.

He defended his decision in favour of former Chief Registrar of the Judiciary, Gladys Shollei, adding that he does not agree with a Court of Appeal decision that overturned it in favour of her former employer, the Judicial Service Commission (JSC).

“It will stand the test of time,” he said, adding that if the case had proceeded to the Supreme Court, it would have agreed with him.

The judge said the JSC should change its disciplinary procedure to allow judges who are cleared to have costs since they hire lawyers and spend time defending themselves.

On workers’ pay, he said remuneration should be based on an open policy. He said a majority of the cases brought before the labour court are about employers failing to clarify how they pay different employees.

He added that women are at a point of a disadvantage as compared to men.

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