, NAIROBI, Kenya, Aug 29 – High Court judge Roselyn Aburili on Monday declined to compel the Judicial Service Commission to shortlist Court of Appeal Judge GBM Kariuki for the post of Chief Justice.
In a ruling that came hours after fellow High Court Judge George Odunga directed a reconsideration of applicants, Aburili said she could not compel JSC to consider a candidate who never submitted an application in the first place.
“The Commission cannot be asked to shortlist a candidate whose application is not before it. In this case, when he (Kariuki) was confronted with bottlenecks of delayed issuance of the certificate of good conduct is when he sought to have the additional requirements declared unconstitutional. In my humble view, that is an afterthought which is bereft of good faith.”
The Lady Justice also declined to find that the Directorate of Criminal Investigations acted with malicious intent when it held back from issuing Kariuki with a Certificate of Good Conduct.
She said the Directorate could not be blamed for the laxity judge Kariuki demonstrated by failing to personally follow-up on the certificate.
“On realising that there was some form of delay, and before the application deadline, could he not personally contact the DCI to establish the cause for delay? The applicant did not mention what efforts he or the Registrar of the Court of Appeal whom he had assigned to run errands on his behalf made between June 27 June and July 7 (application deadline) to obtain the certificate.”
In his submissions, Kariuki through lawyer Macharia Kahonge told Justice Aburili that he had been unable to submit his application for the job in good time on account of a refusal by the Directorate of Criminal Investigations to issue him a Certificate of Good Conduct.
“He made his application to the CID on June 27, paid the requisite fees of Sh1,000 and had his fingerprints taken; being the requirement for the issuance of the certificate,” the court was told.
In an affidavit, he swore that the reason communicated to him by the DCI for their withholding the certificate was that he faced an attempted murder charge in 2008.
“Urgently submit result of trial so as to enable us process police clearance certificate of the subject,” he quotes the communication as reading.
He however described the explanation given as a red herring on the basis that the DCI had issued him two Certificates of Good Conduct since then, making the argument that their subsequent rejection of his application for the certificate must have been calculated to lock him out of the race for CJ.
“In the year 2011 such certificate was issued in connection with the vetting of our client by the Judges and Magistrates Vetting Board. In the year 2012 yet another certificate of Good Conduct was sought and obtained by our client for the purpose of his interview for the post of judge of the Court of Appeal,” Kahonge submitted.
READ: Muhoro’s office spitefully denied me chance to be CJ: Judge Kariuki
Kariuki moved to the High Court under a certificate of urgency to beat the August 29 date the JSC set to commence interviews for the job of CJ after short listing six out of 14 applicants for the job; the application deadline having been July 8.
Kariuki through Kahonge wrote to the Attorney General on July 14 notifying the office that he intendd to sue the DCI for failing to issue him with a Certificate of Good Conduct in good time to apply for the post of Chief Justice.