Court faults ‘irrational’ criteria used by JSC to shortlist for CJ, DCJ

August 29, 2016 12:51 pm
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Judge George Odunga said the JSC acted illegally when it failed to shortlist applicants for not attaching clearance Certificates from the Kenya Revenue Authority, Higher Education Loans Board, the Credit Reference Bureau, the Directorate of Criminal Investigations, Law Society of Kenya and Advocates Complaints Commission to their applications/FILE
Judge George Odunga said the JSC acted illegally when it failed to shortlist applicants for not attaching clearance Certificates from the Kenya Revenue Authority, Higher Education Loans Board, the Credit Reference Bureau, the Directorate of Criminal Investigations, Law Society of Kenya and Advocates Complaints Commission to their applications/FILE

, NAIROBI, Kenya, Aug 29 – The High Court on Monday directed the Judicial Service Commission to reconsider the names of those it failed to shortlist for the position of Chief Justice, Deputy Chief Justice and a judge of the Supreme Court for failing to supply supporting documents to their applications.

Judge George Odunga said the JSC acted illegally when it failed to shortlist applicants for not attaching clearance Certificates from the Kenya Revenue Authority, Higher Education Loans Board, the Credit Reference Bureau, the Directorate of Criminal Investigations, Law Society of Kenya and Advocates Complaints Commission to their applications.

By doing so, he said, the JSC abdicated its power to select the next Chief Justice, Deputy Chief Justice and a Supreme Court judge to the aforementioned authorities; an illegality.

“In my view, for the Commission to base its decision on the failure to submit documents not expressly required by the law and in effect to lock out those candidates who the legal instrument from which the Commission derives authority does not expressly lock out amounts to abdicating jurisdiction,” Odunga found.

Such discretion, he continued, could only be applied at the interview stage where the applicant would have the opportunity to either supply the documents for authentication or explain why they could not make them available to the Commission.

“An applicant may well be in a position at the time of the interview to explain his reasons for the failure to secure the same.”

Odunga found that the JSC also acted in a, “absurd,” fashion when it shortlisted candidates who applied for all or more than one of the three posts for only one, or fewer than all three positions for which they applied.

“It was contended, which contention was not denied, that Mr David Waihiga applied for all the three positions but was only shortlisted for one without any rational basis for failure to shortlist him for the other positions yet the qualifications for the three positions is the same. This decisions it was asserted, was unreasonable. His position was juxtaposed with that of Honourable Roselyn Naliaka Nambuye who also applied for the three positions and was shortlisted for all three.

“I agree that short listing Mr David Waihiga for only one position when he applied for all three positions whose criteria for short listing is the same, does not add up. Without any reasonable, justifiable grounds, such a decision constitutes unreasonableness on the part of the Commission and I so find.”

That being said, he disagreed with those who opined that the JSC should have interviewed all who submitted applications for the three positions saying the law provided for a review of said applications.

“What is the Commission’s recourse when it finds that a particular application does not meet the said minimum threshold? Accordingly, Parliament in its wisdom decided to provide for a sieving mechanism by which the Commission is empowered to systematically weed out those who clearly have no business applying for the job. The sieving process is to eliminate at an early stage those applicants who are evidently busybodies with misguided notions whose only reason for applying for the post is for the purposes of their CVs or for a temporary moment of fame. Such frivolous, vexatious and hopeless applications ought to be struck down at the earliest opportunity in order to pave way for the Commission to conduct its serious business… to permit all applicants to go to the wire as it were, would render the stipulated timelines a mirage. It would for example be ridiculous to allow an applicant who has never seen the inside of a law school.”

In light of the foregoing, Odunga took the remedial action of prohibiting the JSC from making any recommendations to President Uhuru Kenyatta on who should be the next Chief Justice, Deputy Chief Justice and a Supreme Court Judge until the aforementioned illegalities are remedied.

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