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JSC appeals decision stopping it from evaluating CJ candidates

By Paul Ogemba | April 22nd 2021
A section of Judicial Service Commission commissioners follow proceedings as Justice Nduma Mathews Nderi is interviewed at the Supreme Court building on Monday, April 19, 2021 for the position of the Chief Justice. [Collins Kweyu,standard]

The Judicial Service Commission has appealed against a High Court decision that stopped it from evaluating the candidates for the position of Chief Justice.

In the notice of appeal, the JSC said they are dissatisfied with the ruling issued by High Court Judges Anthony Mrima, Reuben Nyakundi and Wilfrida Okwany and want the Appellate Court to suspend the order to enable conclude the recruitment process.

“The Judicial Service Commission is fully dissatisfied with the ruling by the three judges delivered on Wednesday and intends to appeal to the Court of Appeal against the whole decision,” said commission.

The JSC wants to be allowed to continue with the process of evaluating the candidates and nominate the most suitable to be recommended to the president for appointment as CJ to replace Justice David Maraga who retired in January.

The High Court Judges on Wednesday stopped the commission from making any deliberations or further considerations to evaluate the ten candidates interviewed for the position of CJ pending determination of three petitions challenging the process.

They also stopped the commission from commencing interviews for a Supreme Court Judge which were scheduled to kick-off on Monday next week to replace retired Justice Jackton Ojwang.

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 proceeds.

The commission has so far interviewed 9 candidates for the position of CJ to replace retired Justice David Maraga with only Alice Yano set to be interviewed today.

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Those already interviewed are Judges William Ouko, Martha Koome, Said Chitembwe, Nduma Nderi, Njagi Marete, Senior Counsels Fred Ngatia, Philip Murgor, Prof Patricia Mbote, and University lecturer Prof Moni Wekesa.

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 chairperson in the absence of the Chief Justice.

According to Omari, the interviews were being Chaired by Prof Mugenda who is only a commissioner yet the Judiciary was left under the care of Deputy Chief Justice Philomena Mbete Mwilu as the acting Chief Justice who should be the chair of the interviews.

“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 his absence,” said Omari.

The petitioners also argued that Prof Mugenda is illegally occupying the position of JSC Commissioner when she has another job as a state officer where she serves as the chairperson of Kenyatta University Teaching and Referral Hospital.

The petitioners also argued that the commission had shortlisted and proceeded to interview some candidates who had not submitted their wealth declaration forms and of their spouses in breach of Chapter Six of the Constitution.

“Failure by the Candidates to provide their wealth declaration forms and those of their spouses yet they were shortlisted for interview and have since been interviewed is not only a waste of the taxpayer’s money but is also a serious violation of the constitution,” said Omari.

They want a declaration that the recruitment process for the CJ and Judge of the Supreme Court is null and void and that the JSC should start the process afresh.

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