22 judges demand Sh1.2b, sue Ruto for Uhuru's 'sins'

The AG is the principal legal advisor to the government of Kenya, and a member of the Judicial Service Commission (JSC).

"The President of the Republic of Kenya failed, refused and or neglected to appoint the petitioners as judges following the said recommendation by the Judicial Service Commission (JSC). This failure, refusal and or neglect on the part of the President was without any colour of right, excuse or justification on his part," the case filed before High Court judge Mugure Thande read in part.

Those who have sued are from the Employment and Labour Relations Court (ELRC).

They include Justices Wabwoto, Jaqueline Mogeni, David Mwangi, Fred Nyagaka, Lilian Gathoni, Ann Yatich, Michael Ngolo, Lynette Omollo, Joseph Mugo Kamau, Annet Nyukuri, Emmanuel Mutwana and Christopher Kyania.

Others are Justices Lucas Lepes, Joseph Oguttu, Ann Mwaure, Ocharo Kebiria, David Njagi, Bernard Odongo, Jemimah Wanza, Christine Noontatua, Stella Rutto and Jacob Gikeri.

According to the judges, their expectations were that they would be appointed after the JSC's recommendation to the President.

In 2020, Uhuru had said he had decided not to gazette the 41 judges as he had allegedly received adverse reports some of them.

Irresponsible

In the case filed by lawyer Adrian Kamotho, he argued that it would have been irresponsible on his part to appoint them as they enjoy security of tenure, given the integrity concerns.

In an affidavit filed on his behalf by former head of Public Service Commission (PSC), Joseph Kinyua, the President questions why JSC never considered this adverse information against the unnamed applicants for the jobs in the bench.

"The President received adverse reports in respect to some of the persons recommended for appointments as judges after the names of the said judges were published in the media. The President believes that the Judicial Service Commission ought to have considered the information while arriving its recommendation," argued Kinyua.

However, three High Court judges- James Makau, Lydiah Achode and Chacha Mwita ruled that Uhuru broke the law.

Consequently, they ordered the president to appoint the judges within 14 days.

"JSC's decision is not subject to review or second-guessing by the president. He cannot approve or disapprove the appointments. Once the appointments are finalised, the president has no role other than putting in place formalities for appointment.

"Once JSC has made recommendations, the president cannot review, refuse to appoint, reconsider or select who to appoint. He is therefore bound to appoint the people recommended to him," the judges declared.

In the new case filed this week, the 22 judges argue that Uhuru's claim that he had a dossier created a bad image on them before the public.

"The President, purporting to cite undisclosed intelligence reports, and in a move that further injured the petitioner's standing in the estimation of the ordinary, just and right thinking members of the society, made public pronouncements portraying the petitioners as persons of questionable character and not fit to hold the offices of judges in the Republic of Kenya," the judges' court papers filed by the judges' lawyer Elisha Ongoya read in part.

Dilemma

They argue that they were left in a dilemma, as they could not engage in private practice while those who were in academia could not teach.

In the meantime, the judges claim that the AG has refused to accept that the government was wrong for subjecting them to public humiliation and creating uncertainty on their future as judges.

JSC blames Attorney General on appointment of judges

Justice Wabwoto swore an affidavit on behalf of his colleagues. He stated that in December 2022, they wrote to the AG stating their grievance but he has to-date not responded. According to him, the long wait without being sworn in as judges and the wholesome condemnation was against the rights of all judges who were kept in the cold.

"I verily believe that the progressive constitution of Kenya 2010 cannot suffer these wrongs to pass without a remedy to me. I seek general and aggravated damages for the forgoing transgressions," stated Justice Wabwoto.

The other judges gave individual accounts on what they went through during that time.

On his end, Justice Mugo stated that he wound up his law firm, Mugo Kamau and Company advocates after being notified that he had been nominated as an ELC judge. He narrated that the standoff between the President and the JSC over his appointment left him left him in debts as he exhausted his savings.

"I was left in a very awkward and stressful position to the extent of near mental breakdown. What made it worse is that when I decided to take a brief from a few clients, courts were reluctant to give me audience because they considered me a judge and not an advocate," said Mugo.

Plead with creditors

The judge added that his mother passed while waiting for the time her son would be admitted to be a judge and his house was repossessed. He said that he had to plead with creditors to get back his home.

He stated: " I went through untold suffering for the reason I will never get to know and which never existed in reality.

Justice Mugo wants the court to pay him Sh16.5 million salary for the 22 months he was kept in the cold. At the same, he is seeking damaged for the missed annual salary increment and damages for the falsehoods passed against him.

Justice Mwaure in her affidavit states that she was running a law firm and a council member of SEKU University. However, according to the Labour Court judge, she left the same after the nomination.

The judge said that she was left in an embarrassing situation. " I would avoid social events as I did not want to discuss the matter," said Mwaure adding that the standoff left her in social, mental and economic loss. Another judge, Justice Rutto said that at the time she was appointed as judge, she was working with the Teachers Service Commission (TSC).

She stated that by the time she was nominated, TSC had also approved the recognition rewards and sanctions policy that would have seen her promoted.

However, she narrated that her former employer could not have promoted her, as she was now a judge.

"Basically I was in a cul-de-sac (a street or passage that is closed at one end) and stagnated in my career for close to 22 months as I waited for my appointment that eventually came on June 3, 2021. On that end, the only assignment I could undertake was desk work as I was seen as having already left the organisation hence those deemed to be in service took over my roles," narrated Justice Rutto.

Unsure

Justice Kebiria also opened up about the stalemate. The judge narrated that he had a law firm running for 16 years. However, he said, his clients could not issue instructions to him as they were unsure whether he was to continue as an advocate or a judge.

"There was a general feeling within the public that all those who had been nominated for appointment were dishonest and with a tainted reputation since this was what, the Head of State, a leader with immense public influence, had so informed them," stated Justice Kebiria.

Further, Justice Kyania narrated that politicians took cues from the then President to drum their support against his refusal to appoint them.