Supreme Court stares at shortfall of judges

Thursday March 21 2019

Supreme Court judges

Supreme Court judges from left: Njoki Ndung'u, Smokin Wanjala, Philomena Mwilu, David Maraga, Jackton Ojwang' and Isaac Lenaola. Justice Mwilu is facing graft charges. PHOTO | FILE | NATION MEDIA GROUP 

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Even with the myriad petitions against Supreme Court judges, not many will be sitting in the court for longer than two years.

Depending on what happens with Deputy Chief Justice Philomena Mwilu, up to four vacancies — a majority for a seven-judge court — could fall vacant before 2022.

Only Justices Smokin Wanjala, Njoki Ndung’u and Isaac Lenaola could be left standing by 2022, depending on what transpires in Justice Mwilu’s case.

The Supreme Court retains exclusive rights to hear and determine presidential election petitions, hence its importance especially to politicians. It is also the court of last resort.


Justice Mwilu has already accused Director of Public Prosecutions Noordin Haji and Director of Criminal Investigations George Kinoti of an attempt to force her out and create a chance to reconstitute the court.

“The 1st and 2nd respondents (Mr Haji and Mr Kinoti respectively) are seeking to intimidate and oppress the petitioner (Justice Mwilu) into relinquishing her position and office as the Deputy Chief Justice by brandishing the sword of punishment under the criminal law, rather than in any genuine desire to punish on behalf of the public any alleged crime. They therefore must be stopped,” Justice Mwilu said in her petition to the High Court to stop her prosecution.

In the expected reorganisation at the Supreme Court, at least two judges - Chief Justice David Maraga and Justice Jackton Ojwang’ - are certain of retiring before 2022 having attained the mandatory retirement age of 70.

Mr Maraga, born in 1951, will turn 70 years in 2021, just a year to the General Election.


He has often refused to be drawn into any discussion that he could follow in the footsteps of his predecessor, Dr Willy Mutunga, and retire early.

“It is too early to discuss my retirement, really. I still have quite a bit of work to do, and there is time to do it. But when we come near the time, I will take a decision which I think will be in the best interest of the country,” he told Sunday Nation in an interview in January 2018.

Justice Ojwang’, on the other hand, will retire in 2020. He was born in 1950 and will be turn 70 a year ahead of the Chief Justice.

Meanwhile, there has been heightened speculation that Justice Mohamed Ibrahim could also be leaving soon, mainly on health grounds.

Justice Ibrahim's health condition has been well-publicised. It is also the reason he left the bench that was hearing the successful NASA petition that overturned the August 8 presidential election outcome.


If this comes to pass, and Judiciary insiders say it is very likely, there will be three positions in the Supreme Court that will need to be filled in the years before 2022.

On the other hand, the arraignment of DCJ Mwilu over corruption charges and the publicity the case has received could have the potential of making her continued stay in her position untenable.

Were it not for her present woes, Justice Mwilu would have been seen as the heir apparent to Mr Maraga.

Besides, she would have acted as Chief Justice for the period the Judicial Service Commission would take to recruit a new Chief Justice. Going by what happened in 2016, the recruitment of a new Chief Justice lasts up to four months.

However, recent events seem to have diminished her chances and her continued stay in her current position is in serious jeopardy, whether or not the High Court allows Mr Haji to proceed with the charges against her.