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High Court stops process of getting new CJ and SC judge

By Paul Ogemba | April 22nd 2021
Justice Reuben Nyakundi at the Mombasa High Court [Photo/Kelvin Karani]

The search for a new Chief Justice has been thrown into uncertainty after the High Court stopped the Judicial Service Commission (JSC) from evaluating the candidates after the interviews end tomorrow.

High Court Judges Anthony Mrima, Reuben Nyakundi and Wilfrida Okwany allowed the JSC to continue with the interviews but ordered that the commissioners should not make any further considerations to evaluate the most suitable person out of the 10 applicants for CJ’s position.

The judges also stopped the Commission from conducting interviews for a Supreme Court Judge to replace retired Justice Jackton Ojwang pending determination of three petitions challenging the processes.

“Pending the hearing and determination of the petitions, a conservatory order is hereby issued to temporarily suspend the scheduled interview process for the position of the Judge of the Supreme Court,” ruled the judges.

According to the judges, the three petitions by Philip Muchiri, Damaris Ndirangu and Memba Ocharo had raised weighty constitutional issues about the process of recruiting the CJ and Supreme Court Judge that should be determined before the process continues.

They also declined to suspend their decision and directed the commission and its acting chair Prof Olive Mugenda to file an appeal at the Court of Appeal if they want the orders lifted.

“We decline to suspend our orders because they will only take effect after the JSC completes its interviews for the position of CJ on Friday. They have ample time to approach the Court of Appeal and challenge it if they are dissatisfied,” ruled the judges.

The commission has interviewed eight candidates for the position of CJ to replace retired Justice David Maraga.

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The remaining two candidates, Prof Moni Wekesa and Alice Yano, are to be interviewed today and tomorrow respectively.

Those already interviewed are Court of Appeal president Justice William Ouko, lawyers Fred Ngatia, Philip Murgor and Prof Patricia Mbote, Court of Appeal Judge Martha Koome, High Court Judge Said Chitembwe, Employment and Labour Relations Judges Nduma Nderi and Njagi Marete.

Interviews for the Judge of Supreme Court were to begin on Monday next week but the judges said their orders will remain in force after declining to lift it.

Those who shortlisted for the position are Justices Ouko, Koome, Chitembwe, Marete, Nderi alongside Appellate Court Judge Kathurima M’Inoti, High Court Judge Joseph Sergon, Dr Patrick Njuguna and Ms Yano.

“We have considered the submissions and as at now, there are three petitions challenging ongoing process of recruitment of Chief Justice and Judge of the Supreme Court.

“The petitions raise weighty issues on the constitutionality of the ongoing process that has to be determined first,” they ruled.

The petitioners, through lawyers Dunstan Omari, sought to stop the process on grounds that Prof Mugenda is illegally presiding over the recruitment process when she has no powers to act as the JSC chair in the absence of the Chief Justice.

According to Omari, the interviews should be chaired by Deputy Chief Justice Philomena Mwilu who is the acting Chief Justice and not Prof Mugenda who is just a commissioner.

“It has not been apparently clear why the current interviews are being chaired by Prof Mugenda in open defiance and insubordination of the constitutional and statutory dictates that demand that the JSC’s affairs should either be chaired by the CJ or the DCJ in the absence of the former,” said Omari.

The petitioners also argue that Prof Mugenda is illegally occupying the position of JSC Commissioner when she is a State officer as the chair of Kenyatta University Teaching and Referral Hospital.

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