, NAIROBI, Kenya, Aug 3 – High Court judge Jeanne Wanjiku Gacheche was on Friday hauled out of the judiciary after the Judges and Magistrates Vetting Board ruled her as ‘unsuitable’, while clearing three others.
Justice Gacheche was found by the Board to have used judicial powers in an ‘inappropriate manner’, and had also failed to attune her judgments to the requirements of the new constitution.
Justice Gacheche was nailed heavily by a complaint filed on behalf of the Law Society of Kenya (LSK), in which she was accused of issuing long conservatory orders for three insurance companies.
LSK protested that the orders were inappropriate, in place for lengthy periods of time and never took into consideration opposing arguments.
In its determination, the board said that the judge’s response to the accusations was very brief and not enough to exonerate her. Her orders, the board said, had instilled doubts on thousands of lawyers who were pursuing clams on behalf of their clients.
The LSK complained that her actions placed no distinction between honest lawyers and crooks, and had damaged the careers of legal practitioners who’d specialised in pursuing insurance claims.
“The performance of the judges in the three insurance cases had a vast impact over a period two years, and must have inevitably profoundly dented confidence in the judiciary,” the board ruled.
“What links the complaints against her is her failure to comprehend and respond to the needs and experiences against her. Though willing to accept that she might have been wrong in certain technical aspects, she shows no understanding that she had failed to attune the general approach to the text and spirit of the new constitution. She has shown little capacity for introspection,” the vetting panel further said in its determination.
In determinations issued on Friday morning, appellate judges Justices Jessie Lessit and Wanjiru Karanja were pronounced suitable to continue serving as judges.
Justice Mbogholi Msagha, who is currently the resident Judge at the Mombasa High Court was also found suitable, after the Vetting Board determined that he was progressive in his work.
Appeal Judge Karanja was declared suitable but with recommendations that she works on her temperament and relies less on technicalities when deciding cases.
Justice Lessit was cleared after the Board found that complaints by an advocate against her were unmerited. She was described as a very courteous, polite and cool tempered judge.
Justice Msagha meanwhile was let off the hook after the Board upheld the ruling he made disbanding the Kenya Anti-Corruption Authority (KACA) saying it was fair and properly grounded in law.
The board said the decision precipitated the government to act and put in place proper structures to combat corruption by enacting the KACA Act, which was used to investigate and prosecute several anti-corruption cases.
They commended him for the judgment in which he held that every accused person had the right to access witness statements before trial, and that failure to do so amounts to a mistrial. The board insisted that the move “shut the door on trial by ambush in criminal cases, which was the norm in Kenya at the time.”
Justice Msagha was also questioned on why he struck out an election petition by the incumbent President Mwai Kibaki, challenging the election of President Daniel arap Moi in 1997.
He said the High Court was bound by precedents set by the Court of Appeal, and at that time the courts greatly relied on technicality in determining cases. He was let off on grounds of showing remorse and commitment to change.
“He (Msagha) confirmed that if he was to decide the matter today, he would not rely on technicalities. The panel observed and the Board agreed, that the Judge has undergone a mindset change, was progressive and has embraced the Constitution,” read the determination.
The board said that he had also contributed to the development of jurisprudence in Kenya.
Meanwhile, sources at the Vetting Board have said that determinations for Justices Kalpana Rawal, Martha Koome and David Maraga will be announced in two weeks time since they were not complete.
Last week, the Board, in a letter to the Chief Justice said it would announce their verdict regarding the three judges by this week after a ruling on the election date case. The ruling took place on Tuesday.