The judges’ vetting board seems to have applied double standards in some cases

I have keenly read through the Determination of the Judges and Magistrates Vetting Board on Judges Riaga Omollo, Emmanuel O’Kubasu, Samuel Bosire, Joseph Nyamu and the dissenting determination of three out of the nine members on Mr Justice Alnasir Visram, and what stands out is the applicability of double standards.

The report opens up the board to criticism over inconsistency in their determination, the same reason used to find certain judges unsuitable to hold office, particularly Mr Justice Omollo who was found, among other reasons, to have been inconsistent in his decisions.

Justice Nyamu was found unsuitable by the board for, among other reasons, lack of impartiality coupled with a pattern of using judicial authority to grant impunity to the politically powerful and wealthy.

When you read the dissenting determination by three of the board members, namely Lady Justice Roseline Odede, Mr Justice Justus Munyithya and Mr Justice Meuledi Iseme, then the questions that beg for an answer is why the other six (majority) found Justice Visram suitable when Justice Nyamu and Justice Omolo (faulted for favouring Moi in the Matiba case) were found not to have been suitable.

In the case of Justice Visram, the complaints were to do with his handling of the Biwott case in which he awarded him Sh30 million in damages and the Saitoti Goldenberg case in which, despite great public interest, he refused to extend time within which the Attorney-General’s office should have sought leave to appeal against that decision that Justice Nyamu was faulted for.

Why did the board find it suitable for Justice Visram to serve as a judge while it did not find it suitable for Justice Nyamu to serve when, in both cases, the judges were found, from their decisions, to seem to endear themselves to the powers-that-be, and by extension, the wealthy and influential individuals.

As correctly observed by the board in similar circumstances in the case of Justice Nyamu who was found to have had a pattern of making decisions in favour of influential individuals, had the Biwott case been the only one against Justice Visram, then this would have been one of those matters that had to be decided on its own very peculiar facts.

However, there was the Saitoti case that he handled in the same way and refused to allow an application that was uncontested.

Could somebody in the board have been determined to save the skin of Justice Visram?

Could the board members be guilty of having committed one of the same wrongs that made them find Justice Omollo unsuitable?

Could this then reinforce the fact that the board’s hearings should be conducted in public so that the fairness of their decisions can equally be vetted and keenly scrutinised?

The board’s observations on the complaints made against all the judges by one advocate should be lauded. It is not possible that this same advocate would have similar and/or varied complaints against all the nine judges in the Court of Appeal.

His complaints, by virtue of their generality against all the judges, would be taken to border on malice. As much as he would have had a credible complaint, there is no way he could have been taken seriously when the complaints were against all and sundry.

The question now is what happens to the cases that have not been overtaken by events like the Goldenberg decisions that have been faulted by the board.

Could a vigilant litigant take up these matters so that they are opened up in the Supreme Court as in law envisaged or could the AG’s office resuscitate the cases when for all purposes it was reluctant to pursue even the appeals like in the Saitoti case in which the AG’s office waited for time to lapse, only to belatedly and reluctantly seek to extend it?

Could the Supreme Court, on its own volition open up these cases? A travesty of justice will be committed to the Kenyan public if these cases are not reopened.

Mr Sumba is an advocate of the High Court of Kenya and also holds a diploma in Journalism.