Self-effacing judge regrets Moi decision

August 30, 2016 5:17 pm
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Justice Mbogholi said he regretted a decision delivered by a three judge bench, of which he was a part, that was seized of a presidential petition in 1997 which was filed by then Opposition leader Mwai Kibaki (now former President) against then President Daniel arap Moi who eventually handed over the instruments of power to Kibaki a decade later/CFM NEWS
Justice Mbogholi said he regretted a decision delivered by a three judge bench, of which he was a part, that was seized of a presidential petition in 1997 which was filed by then Opposition leader Mwai Kibaki (now former President) against then President Daniel arap Moi who eventually handed over the instruments of power to Kibaki a decade later/CFM NEWS

, NAIROBI, Kenya, Aug 30 – Adequate. Adequate is how aspiring Chief Justice and High Court judge Mbogholi Msagha described his leadership skills before later saying to the Judicial Service Commission interviewing him for the top job: “I present myself before you for consideration. I’m not saying I’m the best.”

Definitely not a ringing endorsement of his candidature but the judge later listed as one of his weaknesses, humility. “Which may be mistaken; regrettably that could be a mistake on whoever thinks that’s a weakness they can capitalise on.”

Overview
  • Training in record keeping for court officers, Msagha said, would also prove beneficial
  • The judge sought to paint a picture of camaraderie with this group of workers whom he said were underpaid and undervalued
  • As with the former CJ, he also wasn't too humble to take issue with the precedent the Supreme Court has set with regard to election petitions that are not presidential in nature and to do with the vetting of judges and magistrates

The judge also had no problem admitting that he regretted a decision delivered by a three judge bench, of which he was a part, that was seized of a presidential petition in 1997 which was filed by then Opposition leader Mwai Kibaki (now former President) against then President Daniel arap Moi who eventually handed over the instruments of power to Kibaki five years later.

The petition was not heard and was dismissed by the bench on the technicality that Moi was not personally served with the petition.

“The law then allowed us to do what we did. With hindsight, today, with our new provisions, I would definitely decide otherwise… That was a three judge decision and when you retire to chambers and you conference, you may not have a voice even if it’s a dissenting voice, in a ruling of that nature… This is a decision one regrets and if revisited, would definitely give a different decision. And I recall the advocate for the petitioner coming with a newspaper cutting showing how the President (Moi) had been surrounded by security and asking how can you be expected to reach the President to serve him personally? With hindsight now, I don’t think that was a right decision. That is a technicality that should not have been relied upon,” Msagha told the JSC at different points in the Tuesday morning interview.

He was however not too humble to point out where, in his opinion, Willy Mutunga – whom he hopes to succeed – fell short and appeared to frown upon his active use of social media.

“I can’t even venture there,” he said of Facebook and, “I have no reason to,” when asked if he spoke Sheng which Mutunga took to using.

“And I don’t envy him at all,” was Msagha’s last word on the matter.

On the more concrete business of running the Judiciary, Msagha said he felt his former boss erred in not appointing case managers as a means to mitigate case delays.

Case managers, he said, would ensure the readiness of parties to cases before they came before the bench for directions. “In some instances the case comes before you and the state hasn’t even lined up its witnesses.”

Small claims courts, he said giving the example of Uganda, would also go a long way in addressing the case backlog given in their model, the claimants represent themselves with no appeals allowed.

If appointed as the next Chief Justice, he said he would also seek to establish an inspectorate committee to monitor the performance of judges and push for their, “in-service,” training in their time off, on rapidly evolving areas of law such as terrorism, cyber-crime.

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