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Appointment of judges

Former Chief Justice Willy Mutunga has slammed President Uhuru Kenyatta over his decision to reject the appointment of six judges last week.

According to Mutunga, President Kenyatta’s decision was driven by personal resentment and not principle.

Last week, the Uhuru declined to gazette names of the six, saying there were issues on their suitability.

High Court judges Joel Ngugi, George Odunga, Weldon Korir and Aggrey Muchelule as well as chief magistrate Evans Makori and High Court Registrar Judith Omange’s nominations were left out.

In a letter to President Kenyatta dated June 8 and which has hence gone viral, Mutunga says “the scientific formulation in the Constitution on the appointment of judges was intended to be an antidote to this kind of whimsical and capricious presidential conduct as is being seen in ugly display in this matter.”

“This is not the time to commence muck-racking adventures in a feeble and abominable attempt to besmirch the character of the  judges and judicial officers.”

The former CJ further accused the President of having a ‘list of hate’ and being stubborn.

“Strikingly, the presidential ‘list of hate’ has even mysteriously changed , meaning the objection to the judges is driven more by personal pique rather than principle. That is not the way to conduct the serious business of state,” he said.

Mutunga urged the president to immediately appoint the judges whom he called exceptional.

“The president must resist the temptation to be garlanded in the pettiness of preforming power, particularly by those who have built a thriving pettiness cottage industry, completely consumed by the pursuit of personal vendetta at the expense of national good,” he said.

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Chief Justice Martha Koome had something to do with President Uhuru Kenyatta’s appointment of 33 instead of 40 judges that were recommended by the Judicial Service Commission (JSC), Law Society of Kenya (LSK) president Nelson Havi has claimed.

Taking to his official Twitter account, Havi questioned CJ Koome’s presence at State House during the swearing in of the appointment judges.

President Kenyatta on Friday swore in the 34 judges at State House Nairobi despite protestations from lawyers and politicians over his move to reject six judges from the list recommended by Judicial Service Commission.

The ceremony was witnessed by CJ Koome and Chief Registrar of Judiciary Anne Amadi and a host of judges.

“If CJ Martha Koome had nothing to do with President Uhuru Kenyatta’s appointment of 33 instead of 40 Judges what was she doing at State House? How did the Judges end up there in robes? Did she tell the President what she has jotted down in that underwhelming unsigned note?” Havi posed.

Those who took the oath of office were seven judges heading to the Court of Appeal, 10 to the Environment and Land Court and 18 others to the Employment and Labour Relations Court.

JSC had recommended the appointment of 41 judges in August 2019 but one died in a road accident last year.

President Kenyatta, however, appointed 34 on Thursday leaving out justices Joel Ngugi, George Odunga, Weldon Korir and Aggrey Muchelule, all currently serving as High Court judges.

He also rejected Evans Makori and Judith Omange Cheruiyot, who had been recommended for the Labour Court.

The Court of Appeal is required to have 30 judges but currently has 13 judges, following the retirement of some judges and promotion of others including justices Koome and William Ouko, who were elevated to the Supreme Court. 

Distancing herself from the recruitment process, which happened close to two years ago – before she was the CJ, Koome urged Uhuru to appoint the remaining six judges.

In a statement on Friday, she said, “The 34 Judges have today taken their oath of office witnessed by H.E the President. I note with great concern that 6 persons who wererecommended by the JSC for appointment were not gazetted.”

Koome gave the example of what happened in January 2014, when the JSC recommended the appointment of 25 nominees as judges, and in June 2014, the President initially appointed 11 of them and subsequently appointed the remaining 14.

On Friday, the LSK lawyers’ lobby demanded that the president should appoint the six remaining judges omitted from his gazetted list of appointments, or it will go to court.

LSK said in a statement by its Chief executive Mercy Wambua that the action of the president was unlawful and reeks of impunity.

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President Uhuru Kenyatta has rejected the names of six judges as he finally gazetted appointments of 34 out of the 40 judges that had been recommended by the Judicial Service Commission (JSC) in 2019.

Among the six names rejected on Thursday June 3, 2021 are the judges that issued a ruling that stopped the Building Bridges Initiative (BBI) reggae.

They include Aggrey Muchelule, George Odunga, Weldon Korir and Prof Joel Ngugi who were recommended for the Court of Appeal.

Ngugi was the judge who led the team which cut short the BBI train. Odunga was part of the team.

Judges approved for the Court of Appeal are Msagha Mbogholi, Hellen Omondi, Mumbi Ngugi, Francis Tuiyott, Pauline Nyamweya, Jessie Lesiit, and Imaana Laibuta.

The nine judges appointed by the president to be Judges of the Employment and Labour Relations Court are Baari Christine Noontatua, Gakeri Jacob Kariuki, Keli Jemima Wanza, Mwaure Ann Ngibuini, Matanga Bernard Odongo Manani, Rutto Stella Chemtai, Kebira Ocharo, Kitiku Agnes Mueni-Nzei, and Nderitu David Njagi.


The president has also appointed 18 judges to serve as Judges of the Environment and Land Court.

They are Mboya Oguttu Joseph, Naikuni Lucas Leperes, Mwanyale Michael Ngolo, Addraya Edda Dena, Kimani Lilian Gathoni, Kamau Joseph Mugo, Wabwoto Karoph Edward, and Koross Anne Yatich Kipingor.

Others are Gicheru Maxwell Nduiga, Mogeni Ann Jacqueline Akhalemesi, Ongarora Fred Nyagaka, Christopher Kyania Nzili, Mugo David Mwangi, Omollo Lynette Achieng’, Washe Emmanuel Mutwana, Nyukuri Annet, Murigi Theresa Wairimu, and Asati Esther. 

In July 2019, the JSC interviewed and selected the 41 judges and recommended them for appointment by the President.

Some 11 names were forwarded for appointment as Court of Appeal judges and 30 for the High Court. One person has since died.

The list of the 41 judges was forwarded to the president for appointment in 2019 during the tenure of former CJ David Maraga. 

In mid-2020, Maraga tried to push the president to appoint the names forwarded to him but he did not receive any response from Uhuru.

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