Misconduct claims hover above AG nominee Kihara

Court of Appeal President Kihara Kariuki delivers his speech during the launch of Judiciary Strategic Plan at Supreme Court, Nairobi, on November 19, 2015. He has been nominated to be the next attorney general. PHOTO | EVANS HABIL | NATION MEDIA GROUP

What you need to know:

  • The JSC had formed a special committee to look into the misconduct and insubordination allegations against Kihara.
  • The petitioner had also questioned how the appeal was expedited and final ex parte orders given within minutes.

Justice Kihara Kariuki, the man President Uhuru Kenyatta has tapped to be his chief legal advisor, has a pending case of alleged misconduct, which is being actively investigated by the Judicial Service Commission (JSC).

Two weeks before President Kenyatta nominated Justice Kariuki to take over from Prof Githu Muigai, the JSC had formed a special committee to look into the misconduct and insubordination allegations against the Court of Appeal judge and three of his colleagues Erastus Githinji, Martha Koome and Fatuma Sichale.

This followed the manner they handled the matter on the appointment of returning officers by the Independent Electoral and Boundaries Commission hours before the repeat presidential election on October 26.

VETTING
Interestingly, judge Kariuki will become an automatic member of the JSC by virtue of his position once he is formally appointed as Attorney General after going through vetting by Parliament, the same body currently seized of the allegations against him.

Since justice Kariuki would have resigned as a judge, lawyer Nelson Havi said JSC would not be in a position to pursue the matter further.

The allegations against Justice Kariuki are likely to come up during his vetting by the National Assembly’s Committee on Appointments.

“Those are very serious integrity queries but with our parliament having forfeited its oversight role and instead become an extension of the executive, we do not foresee anything that would stop the judge from being confirmed for appointment,” Mr Havi said.

RETURNING OFFICERS
The allegations against justice Kihara are contained in the petition that was filed by former Law Society of Kenya (LSK) CEO Apollo Mboya dated December 21, 2017 relating to the appointment of returning officers by the IEBC to oversee repeat polls.

In the petition, Mr Mboya accused justice Kariuki and his colleagues of “insubordination, gross misconduct and/or misbehaviour incompatible with the status of judge of Court of Appeal for breach of constitution, the oath of office and statutory provisions.”

The petition, among others, questions how justice Kariuki was able to empanel a three-judge bench of justices Githinji, Koome and Sichale on a public holiday and without the authorisation from the Chief Justice David Maraga.

“Justice Kihara Kariuki, without authorisation by the Chief Justice, empanelled a bench of the Court of Appeal composed of Githinji, Koome and Sichale …and issued a court order (which) undermined the authority of the Chief Justice as the head of judiciary (and) was discriminatory to other litigants who have other urgent matters before the same court but has not been allocated a hearing date,” the petition read.

EXPEDITED
Mr Mboya also wants the judge to explain why he left out the Court of Appeal judges stationed in Nairobi and went for justices Githinji, Koome and Sichale who are based in Kisumu, Malindi and Nyeri respectively.

The petitioner had also questioned how the appeal was expedited and final ex parte orders given within minutes.

President Kenyatta on Tuesday nominated Justice Kariuki to succeed Prof Muigai.