President Kenyatta's war with judges cripples courts

Friday November 01 2019

President Uhuru Kenyatta is pictured with Chief Justice David Maraga during the official presentation of the State of the Judiciary and Administration of Justice Report of 2016/2017 at the Supreme Court Building on December 15, 2017. PHOTO | FRANCIS NDERITU | NATION MEDIA GROUP


President Uhuru Kenyatta’s decision not to approve the appointment of 41 judges picked by the Judicial Service Commission has crippled the operations of the Land and appellate courts in Nyeri, as the fight between the Executive and the Judiciary persists.

The JSC nominated 11 judges for the Court of Appeal, 10 for the Labour court and 20 others for the Land court but the President rejected the list, saying some of the nominees had integrity issues.

The Court of Appeal in Nyeri, which serves the Mt Kenya region and parts of northern Kenya, shut its doors three months ago for lack of a full bench.


The court’s Deputy Registrar Harrison Adika said the crisis has raised the case backlog to at least 800.

Mr Adika said trouble started when Justice GBM Kariuki retired in February and was not replaced to make the bench (of three judges) complete.


To constitute the bench, a third judge would always be brought in from Nairobi.

Things got worse after the JSC reshuffle in February and when the President appointed Justice Alnasir Visram to a tribunal investigating the conduct of Supreme Court Judge Jackton Ojwang and others.

The two remaining judges — justices Daniel Musinga and Roselyne Nambuye — were transferred elsewhere. Justice Nambuye was recalled to Nairobi while Justice Musinga was taken to Malindi, leaving Nyeri without judges.

Mr Adika said the judges had before February determined a backlog of 400 civil and 300 criminal appeals but the cases have been piling up since then.


Staff at the court’s registry have been referring urgent applications to the court’s president William Ouko in Nairobi for hearing but normal appeals will have to wait.

“The shortage of judges means there is an adverse effect on administration of justice. Advocates are feeling the heat because clients are demanding to know when their appeals will be heard and determined,” said Mr Wahome Gikonyo, the Law Society of Kenya-Nyeri chapter chairperson.

At the Environment and Land Court, the crisis started following the suspension of Judge Lucy Waithaka, leading to a backlog of about 1,000 cases.

Justice Waithaka was suspended in May on the grounds of incompetence, bias, impropriety and professional misconduct. She was accused of impropriety for issuing two conflicting judgments in a land dispute between Jonathan Kimutai Mibei and Philip Kipyegon Lelei in Kericho.

The JSC instructed Justice Mary Oundo of the Land court in Nyahururu to be alternating between the two stations until a new judge is posted to Nyeri or a tribunal investigating Justice Waithaka clears her.


Mr Gikonyo, the LSK Nyeri boss, said litigants thought the crisis at the two courts would end when the JSC forwarded the names of judges to President Kenyatta.

But their hopes were dashed when the President declined, saying he had received adverse reports on some of the candidates recommended for appointment as judges.

Among the appeal cases yet to be determined is a land ownership dispute pitting Samburu pastoralists against former President Daniel arap Moi.

The pastoralists want a ruling by Justice Waithaka in June 2017 that they are not the owners of the 17,105-acre ranch in Laikipia North set aside in its entirety.

Another legal dispute involves the Ministry of Health and the family of colonial paramount chief Nderi Wang’ombe.

It is about the ownership of land occupied by Nyeri Referral Hospital. The family has challenged the Land court decision to reject their petition seeking orders compelling the government to pay them Sh214 million as compensation for the land.