How Maraga’s outburst unsettled the Executive

The circus between the Judiciary and the Executive over judges is far from over after parties declined to sit and reach a solution.

Instead, the fate of the 41 judges whose names were forwarded by the Judicial Service Commission (JSC) to President Uhuru Kenyatta for appointment will be determined by the High Court after Attorney General Kihara Kariuki, JSC lawyer Adrian Kamotho and Head of Civil Service Joseph Kinyua failed to resolve the matter.

The parties had been given 21 days to settle the dispute out of court. However, the Sunday Standard can reveal that JSC, headed by Chief Justice David Maraga, opted to instead file a response to allegations that its nominees were tainted.

The JSC had initially indicated that it would not file anything in the case, which will now be heard on Tuesday next week. In a turnaround, it detailed how it chose the successful candidates, adding that the President has no powers to reject the nominees.

The refusal to swear in the judges has put the Executive and Judiciary at a crossroads, coupled with issues of limited resources, turf wars and graft claims, with sympathisers linking it to the President’s promise to “revisit” the Judiciary after the Supreme Court nullified the 2017 presidential election.

Quietly returned

This comes when the National Treasury quietly returned the Judiciary’s Sh3 billion which had been slashed off its budget. Justice James Makau, the same judge who is hearing the appointments case, had ordered the Treasury to release the money but Cabinet Secretary Ukur Yatani decreed that nothing would be returned. The money was however returned without a word or a meeting.

Yatani said all government services are critical and therefore it would be inaccurate for Maraga to claim that judicial services are more important than others. The acting CS instead accused judges and magistrates of standing in the way of tax collection by indifferently treating tax dispute suits before the courts without appreciating that the same taxes are the main source of government revenues.

“When we try to collect taxes, people run to the Judiciary to challenge the measures and are given orders stopping us,” he said, while apportioning part of the blame in revenue shortfalls to delayed cases before the courts.

Our sources within the Judiciary say they were surprised to see the accounts reading plus Sh3 billion which had been deducted.

“The noise by the CJ and lawyers worked. We have a right, we will fight for it. We do not know what happened but a decision was made and we are happy to have our money back,” a senior Judiciary officer told the Sunday Standard.

Also on the Judiciary’s plate is the credibility of the Supreme Court. Our sources say the commission has decided to hear and determine all cases filed against some of the judges. We have reliably learnt that the Judiciary wants to stand its ground and defend the confidence it has gained as some of the cases were allegedly filed out of vendetta.

It emerges that the JSC has invited both Director of Pubic Prosecutions (DPP) Noordin Haji and Directorate of Criminal Investigations (DCI) boss George Kinoti to appear before it and give evidence against Justice Philomena Mwilu in the petition they filed for her removal.

The appearance of Haji and Kinoti before the commission on December 16 will be more intriguing, with the escalated tension between the two arms of government.

The week after Mwilu’s hearing, the JSC is slated to hear a petition against Maraga himself in an abuse of office allegation. The fate of other petitions against Justices Mohamed Ibrahim and Njoki Ndung’u are also set to be sealed around the same time.

Justice Ibrahim and Njoki declined to have the petition filed in relation to Wajir governance race marked as settled so that they can prove their innocence. Initially, Justice Mwilu had asked the commission not to hear the petition as there is a pending appeal between her, Haji and Kinoti in court.

In between these petitions, financial crisis and Maraga’s rants is a silently brewing succession war. Two Supreme Court judges, including the CJ, will be exiting the Judiciary while the Court of Appeal will also lose some judges.

In Mwilu’s case, the DPP argues that the High Court erred by ruling that DCI illegally obtained evidence that it intended to use against the judge.

The High Court found that Kinoti had obtained orders from the magistrate’s court to investigate a Kenya Commercial Bank (KCB) account operated by manufacturing equipment dealer, Blue Nile East Africa.

According to a five-judge bench that ruled in the case, it is these orders that the DCI relied on to gather evidence against the judge.

The judges declared that probing the Deputy Chief Justice’s accounts and transactions with Imperial Bank was a breach of her privacy.

“We have held the manner in which DCI obtained the evidence was illegal in a manner which is detrimental to her right to privacy although it was not pleaded by the petitioner,” the court ruled.

The DPP in his appeal argues that the court condemned him unheard as he was not asked to table evidence on how the evidence was obtained.