BY SAM ALFAN.
A decision by former President Uhuru Kenyatta declining to appoint six judges as recommended by Judicial Service Commission (JSC) in 2019 will cost taxpayers Sh126 million.
High Court judge Chacha Mwita awarded the six judges Sh126 million as compensation of violation of their rights and fundamental freedoms.
“An order for compensation is hereby issued awarding each petitioner general damages of Sh. 15,000,000 against the respondent for violation of the petitioners constitutional rights and fundamental freedoms,” ordered Judge Mwita.
In his 17 pages decision, Judge Mwita further awarded the judges each exemplary damages of Sh. 5 million against Attorney General for abuse of state power resulting in the violation of petitioners’ constitutional rights and fundamental freedoms.
The former head of state declined to appoint judges Aggrey Muchelule, Weldon Korir, Joel Ngugi, and George Odunga as judges of the Court of Appeal and Evans makori together with Judy Omange as Judges of the Environment and Lands Court.
Kenyatta declined to appoint them citing integrity issues that he did not reveal.
Justice Chacha Mwita took into consideration the humiliation the judges endured for the three years they were kept waiting and the mental anguish they suffered when they were denied the jobs as recommended by JSC.
“A declaration is hereby issued that the State through the actions of the President costing aspersions without particulars that the reasons why he could not appoint the petitioners was because they were not fit to hold public office violated the petitioners’ right to have their dignity respected and protected in terms or Article 28 of the constitution,” declared Judge Mwita.
The judge declared that the former President Uhuru Kenyatta violated Articles 2, 3, 10, 27, 28, 47 and 166(1) (b) of the constitution during the period July 22, 2019 and August 13, 2019 to September 13, 2022, in failing or refusing to appoint the petitioners as judges of the Court of Appeal and the Environment and Land Court after they had been recommended for appointment by the Judicial Service Commission.
The judge further declared that the State, through the refusal or failure by the President to appoint the six as judges after they were recommended for appointment by the Judicial Service Commission for the period July 22, 2019 and August 13, 2019 to September 13, 2022, violated the petitioners’ right to equal benefit of the law and the full and equal enjoyment of rights guaranteed by Article 27(1), (2) of the Constitution, the right to dignity and the right to have that dignity respected and protected as guaranteed by Article 28 of the constitution, and the rights guaranteed by Article 47 (1) and (2) of the constitution.
The judge were appointed to their current positions by President William Ruto, after assuming office in 2022.
“The constitution doesn’t give him discretion when it comes to appointing Judges. What he did left the six in an awkward position full of anxiety about what was happening and why they would be appointed,” ruled Mwita in his decision.
The judge said there was no doubt that President Kenyatta created disparity and discriminatory on equality before the law and equal benefit before the law, when he picked 34 judges as recommended by JSC and left out the six.
He said the President further failed to give a written explanation as to why he declined the appointments, a move that ended up injuring their reputation and lowered their dignity.
The six judges were among the 40 judges appointed by JSC after months of interviews. And despite several court orders compelling President Kenyatta to appoint the judges, the retired head of state stayed put.
In his speech when he swore in 34 judges, President Kenyatta said, “As long as I serve as president, I will choose the right over convenient; the hard over the easy,” with no further elaboration.
