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Sunday, December 5, 2021

High Court bars JSC from conducting interviews for the position of Supreme Court judge

By The Frontier Post Reporter

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High Court has barred Judicial Service Commission from conducting the interviews of judge of Supreme Court pending hearing of petitions filed by Tolphin Nafula, Philip Muchiri Damaris Wakiuru and Memba Ocharo.

Nine candidates were scheduled to appear before the JSC starting next week to defend their suitability to be Supreme Court judge to fill in the vacant position of retired Justice Jackton Ojwang’.

Justices Anthony Mrima, Reuben Nyakundi and Wilfrida Okwany however allowed the interviews for the position of Chief Justice to proceed but stopped the JSC from making any further considerations or deliberations in respect to that position once the interviews are concluded on Friday.

As at now there are three petitions challenging ongoing process of recruitment of Chief Justice.

The three judges considered the submissions of the petitioners and found that they raise weighty issues including the constitutionality of the process.

The petitions were filed separately but were consolidated Wednesday.

JSC wanted the court to stay its decision pending an appeal but the judges ruled the orders of the court shall remain in force pending determination of the cases filed by the petitioners.

In one of the cases, a petitioner — Tolphin Nafula — argues that the Prof Olive Mugenda was illegally elected as the interim vice chairperson for the JSC.

According to the petitioner, the election of the former Kenyatta University VC will relegate the acting Chief Justice to the status of an ordinary member.

Justice Anthony Mrima has referred the case to the acting CJ Philomena Mwilu seeking to have a bench constituted to hear the matter which he said raises substantial questions of law.

In the second petition, one Memba Ocharo wants the interviews adjourned until the nation is informed whether the remaining candidates have complied with Chapter 6 of the Constitution.

“The ongoing interviews for the person suitable for the office of the Chief Justice be stopped to avoid further wastage of public funds and open dereliction of the respondent’s constitutional duty and their conduct of interview that are clearly anathemic to constitutional principles and dictates,” court papers read.

JSC has been named as a respondent in the case where the petitioner argues that it is increasingly becoming clear that the respondent failed to vet the candidates before shortlisting them for the interview.

He says the candidates thus far have admitted to not have submitted their wealth declaration forms and that of their spouses which is in breach of Chapter Six of the Constitution.

 “That the failure by the candidates to provide their wealth declaration forms and those of their spouses yet they were shortlisted for interview and have since been interviewed for the prestigious position of the Chief Justice of Kenya is not only a waste of the taxpayers’ money but is also a serious dereliction of the respondent’s constitutional and statutory duty,” court papers read.

Through lawyer Danstan Omari, the petitioner further argues that the interviews are ‘strangely’ being chaired by Prof Mugenda who is only a commissioner at the JSC.

The petitioner says the Judiciary was left under the care of an able acting Chief Justice who should be taking the lead.

He says it is not clear why the interviews are being chaired by Prof Mugenda in open defiance and insubordination of the constitutional and statutory dictates which demand that the JSC’s affairs be either be chaired by the CJ and/or deputy.

So far, the commission has interviewed eight candidates for the CJ position.

They are Justice Said Juma Chitembwe, Prof. Patricia Mbote, Philip Murgor, Lawyer Fredrick Ngatia, Lady Justice Martha Koome, Justice Marete Njagi, Justice Matthews Nduma Nderi and Justice William Ouko.

The remaining two candidates Prof Moni Wekesa and Ms Alice Yano will wrap up the two-week interviews on Friday.

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