The High Court yesterday stopped interviews for the position of judge of the Supreme Court which were slated to kick off on Monday next week.

In a ruling delivered by a three-judge-Bench comprising Justices Anthony Mrima, Reuben Nyakundi and Wilfrida Okwany, the court barred the Judicial Service Commission (JSC) from conducting the interviews, to fill the vacancy created by the retirement of Justice Jackton Ojwang’.

The Bench, however, allowed the ongoing interviews for the position of Chief Justice (CJ) to proceed but barred the JSC from making any further considerations or deliberations in respect to the CJ position once the interviews conclude tomorrow.

“We have considered the submissions and as of now, there are three petitions challenging the ongoing process of recruitment of CJ and the petitions raise weighty issues,” ruled the judges.

The judges noted that the constitutionality of the ongoing process had been challenged.

Their orders mean that Kenyans will have to wait longer before the JSC picks Justice Ojwang’s replacement from among nine candidates who have been shortlisted for the job.

They are Justices Said Chitembwe, Martha Koome, M’inoti Kathurima, Nduma Nderi, William Ouko, Joseph Sergon, Marete Njagi and lawyers Lumumba Nyaberi and Alice Yano.

The interviews were stopped after four petitioners: Tolphin Nafula, Philip Muchiri, Damaris Ndirangu and Memba Ocharo moved to court to challenge the process on grounds that they were illegal and unconstitutional.

Ocharo, through lawyer Danstan Omari, sought conservatory orders, arguing that the candidates, in respect of the CJ position, had admitted to failing to submit their wealth declaration forms and those of their spouses in breach of Chapter Six of the Constitution.

“There is need that the current interviews for the person suitable for the office of the CJ be stopped to avoid further wastage of public funds and open dereliction of the respondent’s (JSC) constitutional duty and their conduct of interview that are clearly anathemic to constitutional principles and dictates,” argued the petitioner.  

Ocharo further wants the court to compel the JSC to release to the public the score card of each commissioner on their individual or collective rating of the suitability of each of the candidates, that have been interviewed for the position of the CJ

The petitioners have also raised questions why acting Chief Justice Philomena Mwilu is not chairing the JSC which is conducting the current interviews. 

Open defiance

“That the interviews are strangely being chaired by Prof Olive Mugenda who is only but a commissioner to the JSC, yet the Judiciary was left under the care of deputy CJ Philomena Mwilu as the acting CJ, who should chair of the interviews,” reads the petition.

They aver that it is not clear why the current interviews are being chaired by Mugenda in open defiance to and insubordination of the Constitution.

Mugenda chairs the panel that is currently interviewing shortlisted candidates for the CJ’s position.

The panel comprises JSC commissioners Mwilu (Supreme Court), Justice Mohamed Warsame (Court of Appeal), Justice David Majanja (High Court),  Evelyn Olwande (Chief Magistrate’s court), Macharia Njeru (Law Society of Kenya), Ann Amadi (Judiciary Registrar), Kihara Kariuki (Attorney General), Patrick Gichohi (Public Service Commission) and Felix Koskei (public representative). 

The petitioners aver that Mugenda chairs the board of the Kenyatta University Teaching, Referral and Research Hospital and is also a member of the JSC, which, they argue, is unconstitutional.

In the consolidated case, the petitioners are also seeking to bar Gichohi from sitting at the JSC on grounds that he is not qualified to represent the Public Service Commission (PSC) at the JSC, since he quit the former on January 8, 2019.

Suffer prejudice

  “He is not qualified to be the representative of the Public Service Commission on the Judicial Service Commission (JSC) but he continues masquerading as such,” the petition reads.  

However, the Attorney General through lawyer Paul Nyamodi  opposed the grant of the orders, saying the petitioners will not suffer any prejudice if the conservatory orders were not granted. 

The JSC also objected to the petition, arguing that a lot of resources had been mobilised in the ongoing interviews and the court should allow it to conclude the exercise to avoid wastage of public funds.

“The process can be nullified after the hearing of the petition. Let the process continue to conclusion as a lot of resources have been spent. The interest of Kenyans is to get a Chief Justice without further delay,” said the AG. 

Following the grant of the orders by the judges, JSC and Mugenda asked the court to stay its decision pending an appeal. But the court declined their request, saying the orders will take effect after completion of interviews for the position of CJ tomorrow.

“There is ample time for the JSC to approach the Court of Appeal before the order issued by this court takes effect. We decline to issue interim stay,” Justice Mrima said.

The judges directed the parties to file their submissions before May 3 when the case was fixed for hearing.

  The interviews for the CJ post began at the Supreme Court Buildings on April 12. Justice Chitembwe was the first to be interviewed. He is currently serving in the Civil Division of the High Court at Milimani. 

Professor Patricia Kameri-Mbote was interviewed on April 13. She is the Dean of Law at the University of Nairobi and Court of Appeal Judge Justice Martha Koome faced the panel on April 14.

Prof Moni Wekesa is expected to be interviewed today while Alice Yano will wrap up the two-week interviews tomorrow.