NAIROBI, Kenya, Feb 11 – Supreme Court judges Philomena Mwilu, Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u and Isaac Lenaola have kept of the contest to ascend to the position of Chief Justice which was vacated on January 11 after David Maraga retired on attaining the age of 70.
None of the five filed an application for the job which attracted thirteen applicants including five judges, two of whom sit in the Court of Appeal.
Court of Appeal judges William Ouko and Martha Koome as well as Justices D.K. Marete, Mathew Nduma and Said Juma Chitembwe, judges of various divisions of the High Court, will face eight other contenders including Senior Counsel Fred Ngatia who led President Uhuru Kenyatta’s defence during the 2017 presidential election petitions.
The Judicial Service Commission (JSC) also listed Prof Otinga Mare, Prof Moni Wekesa, Alice Jepkoech Yano, Prof Patricia Mbote, lawyer Philip Murgor, Otondi Ontweka and Brian Matagaro as candidates who had applied for the job when the deadline for submissions lapsed at 5pm on Tuesday.
Multiple sources within the judiciary intimated the decision by some judges to keep off the process was due to the fear of being scandalized with some judges feeling targeted due to the manner in which they decided the August 2017 presidential election petition with the Supreme Court voting 4-2 in to nullify President Kenyatta’s reelection.
JSC Secretary Anne Amadi who is also the Chief Registrar of the Judiciary Wednesday said the thirteen applicants will be shortlisted within 14 days in accordance with the Judicial Service Act.
The Commission will thereafter interview the candidates before recommending a candidate for appointment by the President subject to approval by the National Assembly as provided for under Article 166 (1) of the Constitution.
JSC will also seek to recruit one more judge of the Supreme Court to replace retired Justice Prof Jackton Ojwang’ with the top court facing a quorum risk should the bench membership fall below its current configuration of five.
Six applicants who sought to be shortlisted for the position of Chief Justice – Justices Ouko, Koome, D.K. Marete, Nduma, Chitembwe, and Yano – also applied for the position of a judge of the Supreme Court which attracted nine applications.
Article 167 (2) caps the tenure of Chief Justice at ten years but the holder of the office is required to exit office regardless on attaining the mandatory retirement age outlined in Article 167 (1).
Maraga for instance left office after serving for four years, two-and-a-half months.
He handed over the instruments of power to Deputy Chief Justice Philomena Mwilu who is holding the position on an acting basis until a substantive Chief Justice is appointed.
In his final remarks, Maraga encouraged judges “not to let Kenyans down but to be guided by the rule of law as enshrined in the Constitution.”
“I want to thank the people of Kenya for your unwavering support for me and for your steadfast support during difficult times as I served you,” he said.
Maraga urged the judges to “always stand firm because God and the people of Kenya will defend you.”
The former Chief Justice who had a fair share of run-ins with the national executive urged for respect to the constitution while expressing worries over politicians beating the drums of war ahead of the 2022 presidential race.
With the interviews for the next Chief Justice set to begin in earnest after the publication of the applicants’ names in two weeks, focus will shift to the JCS members who have the duty to uphold the independence of the judiciary.
The JSC currently has a membership of ten which includes two commissioners nominated by the President to represent the public – Prof Olive Mugenda and Felix Kiptarus.
Attorney General Kihara Kariuki and Public Service Commission representative Patrick Gachohi also sit in the JSC.
The others are Acting Chief Justice Philomena Mwilu (Supreme Court representative), Justice Mohamed Warsame (Court of Appeal representative), Justice David Majanja (High Court representative), Evalyne Olwande (Magistrate Court representative), Mercy Deche (Law Society of Kenya representative) and Macharia Njeru (Law Society of Kenya representative).