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President Uhuru Kenyatta has finally appointed 34 judges out of the 41 judges proposed by the Judicial Service Commission (JSC) last year, leaving out six in a move likely to open a new war front in the courts.

One nominee, Harrison Okeche, died in a road accident in October last year.

JSC had nominated 11 High Court judges for appointment to the Court of Appeal on July 22, 2020, after interviews but the President appointed only seven.

Those appointed are; Francis Tuiyot, Hellen Omondi, Pauline Nyamweya, Msagha Mbogholi, Jessi Lesiit, Mumbi Ngugi and Dr Imaana Laibuta.

High Court judges George Odunga, Weldon Korir, Aggrey Muchelule and Joel Ngugi were left out in a list published in a special issue of the Kenya Gazette yesterday.

Justices Ngugi and Odunga were among five judges who on May 13, 2021, declared the Building Bridges Initiative (BBI), a product of the Handshake between the President and opposition leader Raila Odinga, “unconstitutional, null and void”.

The judges were nominated by the JSC in May 2019 but Uhuru refused to swear them in despite two High Court orders declaring that he had no constitutional powers to veto the commission’s decision. 

The matter was the subject of a major standoff between Uhuru and retired Chief Justice David Maraga.

During the JSC interviews, newly-appointed Chief Justice Martha Koome had said she would negotiate with the Executive for the appointment of the judges. 

“We must discuss the issue of the 41 judges with the President and we find out where the problem is, resolve it and have the judges sworn-in,” she told the JSC panel.

“I also think that on the matter of judges and magistrates, the best thing to do is to appoint additional judges and magistrates, including the 41 judges that is currently pending,” Justice Koome said in response to questions by Deputy Chief Justice Philomena Mwilu, a member of the panel.

Yesterday’s appointments came a day after the Court of Appeal directed the BBI case to be heard on priority basis with a seven judge bench.

The appeal has been filed by the President, Raila and the BBI Secretariat, and the Independent Electoral and Boundaries Commission, following the nullification of the law amendment bid through popular initiative.

Uhuru’s decision could have been calculated to forestall a human resource crisis at the Court of Appeal.

The court had 15 judges and the appointment of Koome and Justice William Ouko to the Supreme Court left it with 13 justices.  According to the Constitution, the court is supposed to have a minimum of 15 and a maximum of 30 judges.

Democratic boundaries

The appointment comes hot on the heels of Uhuru’s Madaraka Day criticism of the Judiciary which he accused of making rulings that seek to overturn the will of the people.

Speaking in the presence of CJ Koome, the President accused independent institutions of “stretching our democratic boundaries beyond limit and bent 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 BBI, the Judiciary has tested our constitutional limits,” he said during the Madaraka celebrations in Kisumu.

“While I stand by the rule of law and I will always obey the decisions of the courts, I am also compelled by my position to heed the sovereign and supreme voice of the People of Kenya.

That is why our national conversation today must focus on the consequences of choice,” said Uhuru.

In yesterday’s gazette notice, out of the 20 JSC nominees to the Environment and Land Court the President appointed 18 while in the Employment and Labour Relations Court he appointed nine.

The nine appointed to be judges of the Employment and Labour Relations Court are; Baari Christine Noontatua, Gakeri Jacob Kariuki, Keli Jemima Wanza, Mwaure Ann Ngibuini, Matanga Bernard Odongo Manani, Rutto Stella Chemtai, Kebira Ocharo, Kitiku Agnes Mueni-Nzei, and Nderitu David Njagi.

The 18 judges to serve in the Environment and Land Court are; Mboya Oguttu Joseph, Naikuni Lucas Leperes, Mwanyale Michael Ngolo, Addraya Edda Dena, Kimani Lilian Gathoni, Kamau Joseph Mugo, Wabwoto Karoph Edward, and Koross Anne Yatich Kipingor.

Others are Gicheru Maxwell Nduiga, Mogeni Ann Jacqueline Akhalemesi, Ongarora Fred Nyagaka, Christopher Kyania Nzili, Mugo David Mwangi, Omollo Lynette Achieng’, Washe Emmanuel Mutwana, Nyukuri Annet, Murigi Theresa Wairimu, and Asati Esther.

Those left out were Evans Makori and Judith Cheruiyot Omange.

Reactions to the appointments were fast and furious, with Tharaka Nithi Senator Kindiki Kithure accusing President Kenyatta of victimising justices Odunga and Ngugi over the BBI ruling.

“Congratulations are in order to the newly-appointed judges of the Court of Appeal.

For the six who were illegally omitted, they will surely realise their God-given destiny however much the efforts to dim their stars and delay the realisation of their career progression,” he said.

“Leaving Justices Ngugi and Odunga in the High Court can only embolden and strengthen these extraordinarily gifted sons of Kenya and is a poor strategy by the schemers.

In terms of subject matter jurisdiction, it is mainly at the High Court where most of the unconstitutional efforts of the excesses of the Executive can be tamed by innovative jurisprudence,” added Kindiki.

US-based legal scholar Makau Mutua expressed similar sentiments, accusing the President of victimising Justice Ngugi because of his role in the BBI case.

“Justice Joel Ngugi – the presiding judge over the BBI case, hasn’t been elevated to the Court of Appeal.

Mr Kenyatta can’t choose which provisions of the Constitution to obey or disregard. That’s the textbook definition of impunity. Other judges should decline the appointment.”

Prominent city lawyer Ahmednassir Abdullahi also weighed in. “4 judges nominated to the Court of Appeal by JSC including Justices Ngugi Joel and Odunga not gazetted by H.E Uhuru. Executive cherry picking, totally unacceptable,” he tweeted.

Civil society activist Ndung’u Wainaina charged that the President lacked powers to reject the names presented to him for appointment by the JSC.

“Uhuru Kenyatta has no constitutional powers to reject formal appointment of judges presented to him by JSC.

There are courts’ declaration to that effect. This keeps confirming Uhuru’s blatant disregard of court orders, subversion of Constitution and violating oath of office,” he tweeted.

The list of the 41 judges was forwarded to the President for appointment in 2019 during the tenure of former CJ Maraga. 

In mid-2020, Maraga tried to push the President to appoint the judges but he did not receive any response from Uhuru. He accused the President of causing near paralysis of court operations and backlog of cases.

Attorney General Kihara Kariuki responded, accusing the Judiciary of delaying the appointment of the judges to bridge the shortage in the Court of Appeal and the High Court.