High Court judge George Odunga's past rulings returned to haunt him on Wednesday when he was interviewed for the position of a Court of Appeal judge.
Judge Odunga was among 35 candidates the Judicial Service Commission listed for interviews between June 17 and July 1.
Commissioner Macharia Njeru asked the candidate whether he thought of the consequences when he declared that the appointment of returning officers for the 2017 general election was not procedural, a day to the repeat presidential poll.
Judge Odunga explained that there was an illegality in the appointments and that although he declared the appointments unconstitutional, he declined to grant the reliefs the petitioners sought.
The candidate noted that all his judgments are clear and influenced only by the Constitution and applicable laws.
“If a decision is likely to lead to anarchy, I may not grant the reliefs. Based on the arguments before me and [considering] the law, there was an illegality. Disaster kicks when we don’t follow the law. That notwithstanding, I declined to grant the reliefs," he told the panel.
“I have made decisions against and in favour of the government. I have made decisions even against the Judicial Service Commission. In all my decisions, it is clear that I cannot be influenced by factors other than the Constitution and the law. I am a staunch Catholic but I have never allowed my religious beliefs to affect my decisions."
Asked by Attorney-General Kihara Kariuki about judicial activism and the perception that his decisions are anti-government, Mr Odunga defended his tenure at the Judicial Review Division in Nairobi.
“The Constitution requires the court to develop the law and give effect to the rights and freedoms espoused in the Constitution. It may be construed to mean judicial activism but the law has to be developed,” he said.
The judge was also asked about the decision that quashed appointment of the University of Nairobi Council, by the then Education Cabinet Secretary Fred Matiang’i, and the institution's operation without this body for two years.
While noting that he always considers consequences, Mr Odunga said another council was in place and that he had to reject the new appointments.
Another candidate, Justice Stephen Radido, was taken to task on his decision to reinstate Ezra Chiloba as the Chief Executive Officer of the Independent Electoral and Boundaries Commission.
Justice Mohammed Warsame wanted to know whether the Employment and Labour Relations Court judge considered public interest.
The Judge maintained that the electoral body was wrong as it did not follow its manual and procedures when it sent Mr Chiloba on compulsory leave, pending the outcome of an internal audit.
Lawyer Kariuki Mwangi, who has been in private practice for the last 32 years, was also interviewed.
He described himself as a scholar and said his bid to become a Court of Appeal judge was motivated by the challenges of case backlogs and inordinate delays in the resolution of cases.