Newly-promoted judges fail the test as board seals fate of Omollo and Bosire

Two more judges were on Friday sent home and the fate of four others sealed by a team vetting judges and magistrates as part of cleaning up and restoring confidence in the judiciary.

Supreme Court Judge Mohammed Ibrahim and Appeal Court’s Justice Roselyn Nambuye were found unsuitable to sit on the Bench for delays in delivering rulings. Justice Ibrahim, who was promoted last July, had 264 judgements pending, some from 2004.

“The delays were unacceptable, carried like a hump on a camel’s back from one posting to the next. Literally hundreds of litigants from every walk of life felt robbed of their right to have their cases finally determined. The judge might have heard them with empathy but he failed to deliver with celerity,” said Mr Sharad Rao, chairman of the Judges and Magistrates Vetting Board.

Justice Nambuye had delayed 16 judgements for up to four years, but was also found to be have been ‘ineffective and unable to manage her court’. This was the second time she was being shoved out of the Bench.

The first was in 2003 during the radical surgery. However she was restored after a successfull appeal.

The board cleared three other judges, Justices JB Ojwang (Supreme Court), Hannah Okwengu and Kihara Kariuki (Court of Appeal). The board also sealed the fate of former Court of Appeal judges Riaga Omollo, Emmanuel O’kubasu, Samuel Bosire and Joseph Nyamu, who had sought a review of the decision declaring them unfit to serve.

The board deferred its decision on the conduct of Appellate judges Kalpana Rawal, Martha Koome and David Maraga as they are hearing the elections date case.

The board did not give a verdict on the suitability or otherwise of Justices Wanjiru Karanja (Court of Appeal) and Jessie Wanjiku Lesiit (High Court) as they were interviewed recently.

Justice delayed is justice denied

Mr Justice Ibrahim was appointed High Court judge in 2003 and was recently appointed to chair the newly established Judiciary Working Committee on Elections.

Mr Rao’s team said he had invested heavily in securing the rights for minority groups, particularly the Somali, in Kenya.

“He has shown a highly developed commitment to social justice and manifested an admirable willingness to undertake pro-bono activities and community service, even in the face of great difficulties,” the board said.

Justice Ibrahim had 29 matters pending in Nairobi, 79 in Eldoret and 162 in Mombasa. Such delays, the board said, had extensively damaged the reputation of the judiciary.

“Indeed, it is hard to think of a more egregious example of judgments being delayed and justice denied. After applying the objective criteria set out in the Act and balancing out all the different factors, the panel recommended and the board unanimously accepted that he is not suitable to continue as a judge,” Mr Rao said.

The board said Justice Nambuye had “delayed cases” and was culpable of “poor court management and inefficiency”, but cleared her of allegations of incompetence, bias, unfairness and dishonesty.

“The duration and scale of the delays undoubtedly caused major distress to many litigants and contributed to a major depletion of confidence in the judiciary. The judge was responsible for decisions delayed for periods ranging from four months to four years.

The judge is fluent and articulate. However her writing style and inefficiency in the drafting and delivery of judgments exacerbated the backlog further. The board was made aware of one judgment running to over 300 pages.

“Such length gives rise to concerns about efficiency. The board noted that the decision also lacked focused and effective analysis. The inclusion of extraneous material, often drawn verbatim from evidence presented to the court, demonstrates the failure of the judge to grasp the main legal questions and factual matters and to provide a succinct solution in the form of a timely, clear and logical ruling or judgment.”

The board however said Justice Ibrahim and Justice Nambuye, who was the first woman in Kenya to become principal magistrate in 1988, before becoming a puisne judge in 1991, could apply for a review of its decision. Neither was accused of corruption.

Justice Ojwang’ was described as “dedicated to his job” and had managed to clear a backlog of 145 cases expeditiously, despite ill-health.

“The panel noted, too, that there was nothing to suggest that he had orchestrated delay in any matter in order to protect any favoured personality or institution,” Mr Rao said. The board also dismissed reports that some lawyers could have helped Mr Justice Ojwang to write his judgments.

The vetting team named three major causes of loss of public confidence in judiciary as concern about corruption, lack of impartiality when dealing with cases involving powerful public figures and delay in providing justice.

Members of the board are Ms Georgina Wood, Mr Justice Fredrick Chomba, Mr Justice Albie Sachs, Mr Abdirashid Abdullahi,  Ms Roselyn Odede, Ms Meuledi Iseme, Prof Ngotho Kariuki  and Mr Justus Munyithya. Mr Reuben Chirchir  is the Secretary