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Members, Secretary, and Registrar of the Judicial Service Commission at the steps of the Supreme Court on April 23, 2021 at the conclusion of two weeks of interviews of 10 candidates for the position of Chief Justice.

Kenya

Win for JSC as Appellate court suspends order barring it from nominating CJ after interviews

NAIROBI, Kenya Apr 27 – A three Judge-bench has allowed the Judicial Service Commission (JSC) to proceed with the nomination of the next Chief Justice following interviews that were concluded last week.

Three petitioners had moved to court to challenge the constitutionality of the process that saw JSC interview 10 candidates who were shortlisted for the position of Chief Justice.

However, petitioners movedto court to challenge the process, saying Professor Olive Mugenda ought not to have chaired the panel. They said the panel should have been chaired by acting Chief Justice Philomena Mwilu.

Consequently, High Court Judges Anthony Mrima, Wifrida Okwany and Reuben Nyakundi issued orders barring the JSC from scoring the candidates who were interviewed for the position of Chief Justice pending the hearing and determination of the case.

A bench of the Appealate Court whose ruling was read out by Justice Patrick Kiage on Tuesday granted permission to JSC to proceed with the interviews for selecting one Supreme Court Judge and score the nominee for CJ.

“The conservatory orders granted by the High Court barring the continuation of the recruitment process for the Chief Justice and commencement of the process of appointment of a Judge of the Supreme Court be and are hereby stayed pending the hearing and determination of the intended appeals,” he said, in the ruling by the bench that included judges Roselyne Nambuye and Sankale Ole Kantai.

Lawyers Danstan Omari and Prof. Elizah Ongoya who represented the petitioners had also cited non-declaration of wealth by some of the candidates.

The bench noted that whereas the petitioners had raised weighty constitutional issues, there was absolutely need for public interest on the matter to take precedence.

“The rule of law cannot be achieved by a breach of law. We are satisfied that all things considered the public interest and the cause of justice will best be served by a grant of the applications,” he said.

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The bench ruled that it was not convincingly persuaded that there was need to halt the process noting that such a decision would trigger a constitutional crisis owing to the timeliness that are needed for JSC to appoint a Chief Justice. 

“The completion of the recruitment per sey does not immunise or provide blanket cover or otherwise whitewash any procedural or substantive wrongs and inequities for the High Court may yet invalidate even a concluded appointment if such be proof,” he said.

The bench further directed that the records of appeal shall be filed and served in the next 30 days failing which the stay order shall automatically lapse and once filed the intended appeals shall be fast-tracked for hearing expeditiously on high priority.

Following the ruling, the JCS has until Thursday to take a vote on who among the ten candidates should be nominated for the position and transmit the name to President Uhuru Kenyatta.

Candidates who were interviewed for the CJ post include President of the Court of Appeal William Ouko, Court of Appeal Judge Martha Koome, High Court Judge Said Chitembwe and Employment and Labour Relations Judges Mathews Nduma Nderi and Njagi Marete.

Others are Senior Counsel Philip Murgor, Fred Ngatia and Patricia Mbote, Prof Wekesa Moni and Alice Yano.

Those shortlisted for the Supreme Court judge position include Justice Said Chitembwe, Justice Martha Koome, Justice M’inoti Kathurima, Justice Nduma Nderi, Lumumba Nyaberi, Justice William Ouko, Justice Joseph Sergon and Alice Yano.

The position of the Supreme Court Judge was left vacant following the retirement of Justice Jackton Ojwang who retired in February 2020.

JSC nominated Martha Koome to succeed David Maraga.

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