The country’s second highest court is staring at a crisis with the retirement of more judges and the failure by President Uhuru Kenyatta to appoint 11 judges as recommended by the Judicial Service Commission (JSC).
Two judges, Justice Alnashir Visram and Philip Waki, retired in August and October respectively, after attaining the mandatory retirement age of 70. Justice Erastus Githinji is set to retire by the end of December, and his retirement will leave the Court of Appeal with only 15 judges.
There has been an impasse after President Kenyatta failed to formalise the appointment of 41 judges – 11 for the Court of Appeal and the rest for the Environment and Land Court as well as Employment and Labour Relations Court, as recommended by the JSC.
In an affidavit filed in court, Head of Public Service Joseph Kinyua disclosed that there were integrity issues with regard to some of the judges recommended for elevation to the Court of Appeal.
Mr Kinyua was responding to a petition filed by lawyer Adrian Kamotho, who wants the judges’ appointment formalised.
The Judicature Act stipulates a minimum of 12 and a maximum of 30 judges for the Court of Appeal.
It was only in 2013 that the appeal court was a full house with 30 judges but in the next six years, several judges retired, some were promoted – Chief Justice David Maraga and Deputy CJ Philomena Mwilu – while others were removed by the Sharad Rao-led Vetting of Judges and Magistrates Board.
By early 2016, the JSC had started planning the replacement of judges who were set to retire.
In May 2017, President of the Court of Appeal Kihara Kariuki, now Attorney-General, indicated the need to employ at least six judges. This was after Justices Onyango Otieno, GBM Kariuki, Festus Azangalala and John Mwera had retired or were to retire. Three more were also expected to retire in the next three years.
The court has stations in Kisumu, Malindi and Nyeri and three judges in each of these stations. Then, Justice Kariuki thought that a fourth judge should be posted in each station so that judges can handle matters in the stations and not rely on Nairobi in case there were recusals, sickness or other factors, which would lead to failure to constitute a bench.
Judges from Nairobi also visit sub-registries in Nakuru, Eldoret, Kisii, Meru, Busia and Mombasa in what they refer to as circuits, where they sit in several benches to clear cases before moving to another station.
But now, according to Chief Registrar of Judiciary (CRJ) Anne Amadi, the court cannot constitute a bench to hear cases in Nyeri, Meru, Busia, Eldoret, Nakuru and Kisii sub-registries.
Ms Amadi said the appointment of the 41 judges was informed by the challenges litigants faced, as their cases are not being resolved expeditiously. She revealed that there is a huge backlog of cases at the Court of Appeal.
After the 2017 General Election, the Court of Appeal only handled electoral appeals for six months as required by the law. The move saw an increase in the backlog.
Judges of the Court of Appeal rotate in the three stations, in a policy that started on April 1, 2013.
In the arrangement, the judges serving outside Nairobi are transferred back to the capital city after two years.
Ms Amadi said the vacancies were declared, the recruitment started and the JSC had factored the additional judges in its budget estimates.
The JSC has disputed the “appointing process” referred to by Mr Kinyua, saying it is not envisioned in the constitution or the Judicial Service Act.
Under the constitution, JSC said, the duty of the President in the appointment of judges is ceremonial and only intended to formalise the appointment of persons recommended by the JSC.
In 2014, the President also delayed to swear in nominee judges, forcing the Law Society of Kenya to file a petition.
Ms Amadi said in a reply filed in court that Parliament did not contemplate that the process of nomination and recommendation for appointment would be subject to any veto by the President.
“The constitutional structure and design was intended to insulate the process from interference by an organ of the State and the President’s role is purely facilitative,” she said.
Ms Amadi added that any rejection or disapproval of the persons recommended for appointment by the JSC would negate and subvert the constitutional independence of the Judiciary.
Among the persons who were nominated for elevation to the Court of Appeal are longest serving Judge Msagha Mbogholi, who is currently the presiding judge of the civil division of the High Court in Nairobi and Justice Jessie Lesiit, who is currently the presiding judge of the Criminal Division of the High Court.
Other judges who were recommended for appointment were Justices Francis Tuiyott, Pauline Nyamweya, Weldon Korir, Aggrey Muchelule, Mumbi Ngugi and George Odunga. Others are justices Hellen Omondi and Joel Mwaura as well as lawyer Imana Laibuta.