Judge Philomena Mwilu has sworn into office two women as commissioners with the National Land Commission (NLC) in her first public assignment as acting Chief Justice.
Mwilu, who took charge of the Judiciary on December 12 after the CJ David Maraga proceeded on leave ahead of his retirement, presided over the ceremony in which he advised the new commissioners to discharge their duties with integrity.
They are former Nyeri Town MP Esther Murugi and former Isiolo Woman Representative Tiyah Galgalo.
Mwilu said the two women's appointment by President Uhuru Kenyatta on October 2 last year was marred with a legal battle, but urged them to reflect on why they had to take the oath by correcting the wrongs committed on land matters.
She asked the two commissioners to make use of their skills and knowledge in handling land disputes forwarded to NLC by making concrete decisions that would be upheld by the courts in case aggrieved parties appeal.
“Land is the most critical resource we have to deal with and crooks get wiser by the day if you are not a step ahead,” she said, adding that people would kill to get land.
Murugi and Galgalo won back their jobs following a decision by the Court of Appeal that the Employment and Labour Relations Court illegally revoked their appointment as NLC Commissioners when it lacked jurisdiction to handle a dispute relating to removal of constitutional office holders.
Activist Okiya Omtatah challenged Galgalo and Murugi’s appointment, arguing that they were shortlisted for the position of NLC chairperson and not commissioners. He added that their names were sneaked in by the selection committee after failing the chairperson’s interviews.
However, Judges Daniel Musinga, Gatembu Kairu and Katharumi M’inoti ruled that the Labour court’s mandate is limited to handling disputes between employers and employees, and that it was wrong for the judge to stop the two from assuming office.
According to the judges, the two politicians had already been nominated as NLC commissioners and any dispute over their appointments should have followed the right process.
The two were among nine commissioners appointed to NLC along with Gershom Otachi as NLC chair, James Tuitoek, Getrude Nguke, Reginald Okumu, Samwel Kambi, Hubbie Al-Haji and Alister Mutugi.
In the Labour court decision, Justice Hellen Wasilwa quashed their appointment on grounds that their nomination flouted principles of appointment in public service, adding that the selection committee made a mistake by forwarding their names for vetting when they had not been interviewed for the posts.
The two appealed the decision through their lawyer Prof Tom Ojienda,saying they had already been gazetted by the President as members of an independent commission and could only be removed from office through a petition filed at the National Assembly.
Mwilu took charge of the Judiciary in acting capacity in an appointment made by Maraga to avoid a vacuum in leadership in the race to succeed the CJ come January 12, 2021.
“I hereby authorize you, Philomena Mwilu, the Deputy Chief Justice of the Republic of Kenya, to act as Chief Justice of the Republic of Kenya and perform all duties and functions of the Chief Justice from December 12, 2020 until my retirement on January 12, 2021,” the CJ stated in his appointing letter.
The appointment gave Mwilu powers to ceremoniously administer the oath that newly qualified lawyers take as they are admitted to the Roll of Advocates and has a lead role in setting policies for the administration of justice and the running of the judicial arm.
With no orders barring her from taking office in acting capacity, she is to also take charge of the Supreme Court that has powers to hear and determine appeals from the Court of Appeal and one that is to give an advisory opinion at the request of the national government, any state organ or county government.
Section 5 (5) of the Judicial Service Act provides that if a vacancy occurs in the office the CJ and that of the DCJ, or if the DCJ is unable to act in the absence of CJ, the senior most judge in the Supreme Court shall act as the CJ and shall assume the administrative duties of the CJ until the position of CJ or Deputy Chief Justice is filled.
Lawyer Okiya Omtatah filed a case in court a few weeks ago, seeking to stop her from assuming the top judicial job on the grounds that she is not fit to hold the office.
“There are four cases questioning the DCJ’s integrity pending before the Judicial Service Commission and others before courts. She cannot assume the roles of a CJ with such issues on her head without bringing the judiciary into disrepute,” said Omtatah, adding that JSC is to blame for failing to determine four petitions challenging her integrity within a reasonable time.
