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ELECTION 2022

Winners and losers in the Judiciary in 2021

NATIONAL
By Paul Ogemba | Dec 31st 2021 | 6 min read

Chief Justice Martha Koome (centre) with deputy Chief Justice Philomena Mwilu (left) and Supreme Court Judge William Ouko at the Supreme Court Building, May 21, 2021. [Collins Kweyu, Standard]

President Uhuru Kenyatta and ODM Raila Odinga were among the biggest losers in the corridors of justice in 2021 as their pet project to amend the Constitution flopped.

Uhuru and Raila did everything in their power to initiate the first amendment through the Building Bridges Initiative (BBI) by securing approval of county assemblies, the National Assembly and the Senate. The initiative was headed for public approval through a referendum before the courts struck and scuttled everything.

Both the High Court and the Court of Appeal declared that BBI was unconstitutional and an illegal attempt to alter the structure of the Constitution that cannot be subjected to a public vote.

In the end, the court issued a permanent injunction barring the Independent Electoral and Boundaries Commission (IEBC) from carrying out any referendum in regard to the Constitution of Kenya (Amendment) Bill, 2021.

The loss was a painful end to the much publicised BBI project that was borne out of the 2018 Handshake between Uhuru and Raila after the divisive 2017 presidential polls, and which was billed as a curtain-raiser for next year's elections.

Although the ODM leader declared he will not push further with the BBI agenda after the Court of Appeal verdict, both Attorney General (AG) Kihara Karuiki and IEBC have filed an appeal at the Supreme Court with the hearing scheduled from January 18 to 20.

Winners

On the flipside, Chief Justice (CJ) Martha Koome was the biggest winner in the Judiciary as she became the first woman to head the third arm of government after beating a strong field of seasoned lawyers and judges.

Justice Koome overcame all odds, including a petition that had been filed questioning her suitability to head the institution and rigorous interviews before the Judicial Service Commission (JSC) and the National Assembly, to succeed retired CJ David Maraga.

Although JSC members declined to disclose why they settled on her, they stated that it was a unanimous decision of the nine panelists.

“After deliberations and evaluation of all the candidates interviewed, it was a unanimous decision by all the commissioners that Justice Koome was the best candidate to be appointed as CJ and president of the Supreme Court,” said the commission.

Koome’s victory came alongside that of her university classmate and boss at the Court of Appeal Justice William Ouko who was elevated to the Supreme Court to replace retired Justice Jackton Ojwang’.

Chief Justice (CJ) Martha Koome. [PSCU]

As a long-serving career judicial officer who had risen from the ranks of a district magistrate, Justice Ouko’s resilience paid off when he got the ultimate reward of joining the apex court.

Thirty-four other judges were also appointed to the Court of Appeal, Employment and Labour Relations Court, and the Environment and Land Court after more than two years' wait to end a stand-off between the Judiciary and the Executive.

Those appointed to the appellate court were Francis Tuiyot, Hellen Omondi, Pauline Nyamweya, Msagha Mbogholi, Jessie Lessit, Mumbi Ngugi and Kibaya Imaana Laibuta.

To the lands court, the president appointed Joseph Mboya, Lucas Leperes, Michael Ngolo, Edda Dena, Lillian Gathoni, Joseph Mugo, Edward Wabwoto, Anne Yatich, Maxwel Gicheru, Jacqueline Mogeni, and Fred Nyagaka.

Others were Christopher Nzili, David Mwangi, Lynnette Achieng, Emmanuel Mutwana, Annet Nyukuri, Theresa Wairimu and Esther Asati.

Jacob Kariuki, Christine Noontatua, Jemima Wanza, Ann Ngibuini, Benard Manani, Stella Rutto, Kebira Ocharo, Agnes Kitiku and David Nderitu joined the employment court.

This year was also good for Justice Daniel Musinga who was elected Court of Appeal president to succeed Justice Ouko.

It was not only the judges who got appointed that enjoyed a good year but also those who won and benefited from judicial decisions.

Nairobi Governor Anne Kananu could not have been at the helm of the city-county were it not for court decisions that favoured her.

At the beginning of the year, all indications were that Nairobi residents would go to the polls to elect a new governor after Mike Sonko was impeached. However, the High Court dismissed a case that had blocked Kananu's appointment as deputy governor.

Nairobi Governor Anne Kananu. [Denish Ochieng, Standard]

The court also dismissed another application that sought to bar her vetting and appointment by the County Assembly as deputy governor. And after being stopped from being sworn in as governor for seven months, the Supreme Court lifted the order, allowing her to ascend to the county’s leadership.

It was also a good year for politicians without degree certificates eyeing parliamentary and county assembly seats after the High Court quashed a law that would have barred them from contesting.

Justice James Makau declared Section 22(1A) of the Elections Act that required any person seeking nomination as a candidate for an elective post to have a university degree as illegal and unconstitutional for infringing on voters rights to elect a candidate of their choice.

Losers

It was not only the president and his Handshake partner who had a bad year in the Judiciary.

Whereas Justice Koome celebrated her victory as the first woman CJ, her competitors felt the pain of going through the rigorous interviews that lasted for more than six hours and failed to secure the seat.

The agony was worsened by the fact that they will have no chance to battle it out for the CJ’s position again given that most of them will be ineligible to apply for the position by the time Justice Koome retires in 2030 because of their age.

Among those who lost out to the CJ were Justice Ouko, High Court Judge Said Chitembwe, Employment and Labour Relations Court judges Nduma Nderi and Njagi Marete, Senior Counsel Fred Ngatia, Philip Murgor, Prof Patricia Mbote, Prof Moni Wekesa and lawyer Alice Yano.

Six judges rejected by President Kenyatta when he appointed 34 others also lost big, with the battle still pending at the Court of Appeal.

The president referred the nomination of Justices Aggrey Muchelule, Joel Ngugi, Weldon Korir, George Odunga, Judith Omange and Evans Makori back to JSC on account of integrity issues, which he said made him to reject their appointments.

President Uhuru Kenyatta and Raila Odinga were the biggest losers when BBI was declared unconstitutional. [File, Standard]

President Kenyatta, the AG and the Executive arm of government were also in the losing end when the courts declared several laws passed by Parliament as unconstitutional, null and void.

The first blow came when Justice Anthony Mrima declared that the position of Chief Administrative Secretary (CAS) created by the president through an Executive Order in 2018 as unconstitutional and that Cabinet Secretaries (CSs) who were not vetted in 2017 were illegally in office.

The government’s bid to increase revenue collection by introducing minimum tax was also thwarted after the High Court stopped the Kenya Revenue Authority (KRA) from implementing, administering and enforcing Section 12 of the Income Tax Act which required small-scale businesses to pay tax.

When the government sought to reorganise the Executive by moving some State departments, including the Judiciary to the office of the AG, the High Court quashed the move by stopping implementation of Executive Order No 1 of 2020 signed by President Kenyatta.

Directorate of Criminal Investigation (DCI) boss George Kinoti also found himself on the losing side when he was jailed for four months for refusing to return guns confiscated from billionaire businessman Jimi Wanjigi in 2017.

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