JSC sued over 'irregular' appointment of High Court Registrar

Chief Registrar of Judiciary Ann Amadi at Parliament in Nairobi on March 28, 2023. [File, Standard]

The Law Society of Kenya (LSK) and two lawyers have sued the Judicial Service Commission over the appointment of Clarence Awuor Otieno as Registrar of the High Court.

Three petitions, seen by The Standard, have been filed at the Employment and Labour Relations Court in Nairobi and Nakuru challenging the appointment.

Otieno was appointed to the position, in an acting capacity, on June 15, 2023. The appointment took effect from July 24, 2023.

LSK, and lawyers Omwanza Ombati and Cherono Tongoi, have filed petitions challenging the appointment. They have named JSC as a respondent while Otieno has been named an interested party.

LSK, in the suit, said the appointment of Otieno was opaque and shrouded in mystery.

JSC on January 19, 2023, advertised the position of Registrar of High Court vide Job Reference Number V/No. 5/2023 and invited interested and qualified candidates to apply. The deadline for applications was February 3, 2023.

On May 22, 2023, JSC published six persons who had been shortlisted for interviews but Otieno was not among them.

LSK noted that JSC later informed the public that none of the shortlisted candidates had been successful.

JSC, through its communication of July 25, 2023, informed the public that following "a successful interview", Otieno had been appointed to the position despite the fact that she was not shortlisted.

“It is a mystery that the interested party (Otieno) who was never shortlisted for interviews, attended an interview which was never published or publicised and for a vacancy that was never re-advertised, the first recruitment having failed, and emerged successful,” said LSK’s notice of motion.

LSK notes that the recruitment process had failed at the point where JSC said none of the shortlisted candidates was successful after the interview. LSK said JSC ought to have re-advertised the vacancy, whether internally or otherwise.

“It is not clear when the vacancy was re-advertised, what minimum qualifications were set, when the interested party applied to the position, how the interested party was shortlisted for the interview, who conducted the interviews, and when the interviews were conducted,” says LSK.

Tongoi, through lawyer Kipkoech Ng’etich, on her part claims the appointment of Otieno was shrouded in secrecy.

“The interview and appointment process was marred with secrecy, discrimination, and biases and did not uphold the rule of law. This denied the candidates a fair chance and unless the orders sought are granted, grave injustice shall be perpetuated,” she stated.

The Constitution, she noted, is instructive on how appointments to public offices should be done and requires nominations and appointments to the office to be on a competitive basis.

The appointment of Otieno to the position of Registrar High Court unprocedurally, she said, does not serve to promote the purposes, values and principles of the Constitution.

She wants the court to declare the process of appointment of Otieno illegal and be quashed and JSC to be compelled to carry out a proper advertisement, interview, and appointment of the Registrar High Court in strict compliance with the Constitution.

Anne Amadi, the Chief Registrar of the Judiciary, in response to the suit by Tongoi said the commission resolved to appoint Otieno pending the appointment of a substantive office holder after the shortlisted and interviewed candidates failed to meet the required threshold.

Anne Amadi, the Chief Registrar of the Judiciary, in response to the suit by Tongoi said the commission resolved to appoint Otieno pending the appointment of a substantive office holder after the shortlisted and interviewed candidates failed to meet the required threshold.

Amadi said there was a need to have a person in the office for proper functioning.

Otieno, according to Amadi, met the minimum requirements for the acting position first for being a senior principal magistrate and second for having been previously interviewed for the position of Registrar, Environment and Land Court wherein she had a stellar performance emerging second overall after the candidate who was eventually appointed.

“She had the necessary seniority having worked in the Judiciary for over 15 years, competence from an academic and experience perspective, and possessed the ability to perform the roles of the office in an acting capacity,” stated Amadi in her response.

She revealed that the commission, at a meeting held on July 13, 2023, deliberated on the recruitment process to appoint a substantive office holder of the Office of Registrar of the High Court.

In the meeting, it was resolved that the interested party, who was at this time acting as the Registrar of the High Court, be invited for a suitability interview to be considered for substantive appointment. Otieno, she said, was invited for an interview on July 24, 2023.

“In the instant case, the recruitment process adopted by the commission after the initial one was declared non-responsive was that the commission was satisfied that the vacancy should be filled by the appointment of a public officer held against the establishment of the Judicial Service thus advertisement and shortlisting was not necessary where this procedure was adopted,” she stated.

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