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Sunday, December 5, 2021

Why Uhuru rejected six judges to the Court of Appeal

By Otieno Kwach

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President Uhuru Kenyatta’s failure to nominate six judges to the Court of Appeal and the Environment and Lands Court has elicited uproar, with legal scholars and civil society citing the move unconstitutional.

In a special issue of the Kenya Gazette published on June 3, the President appointed 34 of the 40 candidates nominated by the Judicial Service Commission (JSC) to the Court of Appeal, Environment and Lands Court, and the Employment and Labour Relations Court.

A statement from State House stated that the President turned down the nominations of High Court Justices Joel Ngugi, George Odunga, Aggrey Muchelule and Weldon Korir to the Appellate court “for failing to meet the required threshold”.

Also not making it to the list of appointees were Registrar of the High Court Judith Omange and Chief Magistrate Evans Makori, who had been nominated to the Environment and Lands Court.

Kenyans took to social media to castigate the President for violating the constitutions.

“On this we must be plain. The President cannot select which Judges to gazette after JSC recommendation,” said Constitutional Lawyer Otiende Amollo.

“President Uhuru has predictably trashed Constitution of Kenya. Chief Justice Martha Koome should protect CoK by refusing to swear any until all 40 are gazetted. The 34 Judges should decline being sworn until all 40 are gazetted. Real test on Chief Justice Martha Koome starts today. Trailblaizer or puppet?” posed former Mukuweini MP Kabando wa Kabando.

“For Chief Justice Emeritus David Maraga it was all 40 Judges or none, a stand supported throughout by LSK. Chief Justice Martha Koome has weakened the Judiciary by conceding to the rejection by Uhuru Kenyatta of four Judges and two Magistrates. No congratulations from me,” said Law Society of Kenya President Nelson Havi.

“To his credit Chief Justice David Maraga refused about four times a proposal to have 32 out of the 41 judges sworn to office by President Uhuru. His retort, “All or none”,” said Senior Counsel Ahmednassir Abdullahi.

A brief detailing the bios of the candidates, which was attached to the gazette notice, simply stated that nominees left out of the appointments had not met the threshold and would be referred back to JSC.

Thursday’s appointments come just about two weeks after a five-judge bench declared the Building Bridges Initiative (BBI) to amend the Constitution illegal and unconstitutional.

Those in the team were High Court judges Ngugi, Odunga, Jairus Ngaah, Teresia Matheka and Chacha Mwita.

Appointment of the 34 also comes two weeks after the swearing into office of Chief Justice Martha Koome, who had set diplomatic negotiations with the Executive as among her priorities to ensure the judges are appointed.

Those the President appointed to the Appellate court are High Court judges Francis Tuiyot, Hellen Omondi, Pauline Nyamweya, Msagha Mbogholi, Jessie Lesiit, Mumbi Ngugi and lawyer Kibaya Imaana Laibuta.

Those appointed to the Employment Court are Christine Noontatua, Jacob Kariuki, Jemima Wanza, Anne Nguibini, Bernard Manani, Stella Chemtai, Kebira Ocharo, Agnes Kitiku and David Nderitu.

Those appointed to the Lands Court, are Joseph Mboya, Lucas Leperes, Michael Ngolo, Edda Dena, Lillian Gathoni, Joseph Mugo, Edward Wabwoto, Anne Yatich, Maxwel Gicheru, Jacqueline Mogeni, and Fred Nyagaka.

Others are Christopher Nzili, David Mwangi, Lynnette Achieng’, Emmanuel Mutwana, Annet Nyukuri, Theresa Wairimu and Esther Asati. Lawyer Harrison Ogweno, who had also been nominated to the court, died last year.

For the 34 appointed judges, it has been a long wait of more than two years since their nomination, which led to a bitter fallout between the President and former Chief Justice David Maraga.

In one of his public spats against the Executive, Justice Maraga declared that the President was out of order for disobeying two court orders to appoint the judges, as the dispute between the Judiciary and the Executive reached boiling point.

The President however maintained that he would not be coerced to appoint any judge.

During celebrations to mark the 58th Madaraka Day on Tuesday, Uhuru took his war with the Judiciary a notch higher, accusing some judges of derailing his work and going against the will of the people.

“From nullification of a presidential election in 2017 to an attempt to stop the will of the people as expressed through Building Bridges Initiative, the Judiciary has tested our constitutional limits,” said the president.

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