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The Judicial Service Commission (JSC) of Kenya is an independent Commission established under Article 171 of the Constitution of Kenya. Its mandate as stipulated in Article 172 of the Constitution is to promote and facilitate the independence and accountability of the Judiciary and the efficient, effective and transparent administration of justice. The commission has 11 members with the initial team appointed in December 2010.
What Is The Composition Of The Judicial Service Commission?
The Judicial Service Commission in Kenya should consist of the following members-
the Chief Justice, who should be the chairperson of the Commission;
one Supreme Court judge elected by the judges of the Supreme Court;
one Court of Appeal judge elected by the judges of the Court of Appeal;
one High Court judge and one magistrate, one a woman and one a man, elected by the members of the association of judges and magistrates;
two advocates, one a woman and one a man, each of whom has at least fifteen years’ experience, elected by the members of the statutory body responsible for the professional regulation of advocates;
one person nominated by the Public Service Commission; and
one woman and one man to represent the public, not being lawyers, appointed by the President with the approval of the National Assembly.
The Chief Registrar of the Judiciary is the Secretary to the Commission.
Members of the Commission, apart from the Chief Justice and the Attorney-General, should hold office, provided that they remain qualified, for a term of five years and are eligible to be nominated for one further term of five years.
History of Judicial Service Commission (Kenya)
The first court in British East Africa was established by the Imperial British East Africa Company in 1890 with A.C.W Jenner as its first judge.
In 1895, the East Africa Protectorate was established with Consular court to serve British and other foreign persons. However a court with jurisdiction over all persons in the territory was first established in 1897 — Her Majesty’s court of East Africa, which was later renamed ‘the High Court of East Africa’.
The Kenya’s Judiciary has roots in the East African Order in Council of 1897 and the Crown regulations. The Kenyan legal system was shaped by English legal system occasioned by the British administration that lasted over six decades where judges and the bar, were exclusively European.
Before 1895, when Kenya was declared a British Protectorate, the country had no structured legal system. The territory was administered via the Imperial British East Africa Company, which carried out all the obligations undertaken by the British Government under any treaty or agreement made with another State. In 1896, the territory became known as the East African Protectorate. It was then renamed Kenya Colony and Protectorate in 1920 and remained so until 1963 when Kenya became an independent state.
With the settlement of the British in the East African Protectorate, there arose a need for a legislative and administrative system to govern the inhabitants. For ease of administration, the British settlers imported laws and systems of governance from Britain, and British laws that had been codified in India, to apply to the East African Protectorate. These laws were mainly for the benefit of the settlers and were applied without regard to the already existing native society.
The natives were allowed to practice African Customary law while the Hindus who had emigrated from India, to practice Hindu Customary law in the area of personal law as the Muslims and Arabs communities practiced Muslim Law. Kenya’s Judiciary was hence based on a tripartite division of subordinate courts; that is, Native courts, Muslim courts and those staffed by administrative officers and magistrates. A dual system of superior courts that lasted for only five years was also established – one court for Europeans, and the other for Africans.
The colonial authorities empowered village elders, headmen and chiefs to settle disputes as they had done in the pre-colonial period. These traditional dispute settlement organs gradually evolved into tribunals. They were accorded official recognition in 1907, when the Native Courts Ordinance was promulgated. This ordinance established native tribunals that were intended to serve each of the ethnic groups in Kenya.
How the Court System worked
The Chief Native Commissioner could set up, control and administer the tribunals. Similar African tribunals at the divisional level of each district were established. The Governor was authorized to appoint a Liwali at the Coast to adjudicate matters in the Muslim Community.
Appeals against the decisions of tribunals were filed to the D.O, (District/Divisional Officers) D.C, (District Commissioner) or the PC (Provincial Commissioner), while the final appeal lay with the Supreme Court. In cases where non-Africans were involved, the administration of justice was entrusted to expatriate judges and magistrates.
Appeals lay from subordinate courts to the Supreme Court. The head of the system was the Chief Justice while the administrative duties were carried out by the Registrar of the Supreme Court.
Main courts were established in large urban centres – Nairobi, Mombasa and Kisumu. Judges and magistrates on circuit served other centres. The segregated system of administration of justice prevailed until 1962 when the African courts were transferred from the Provincial Administration to the Judiciary. The independence Constitution established a Supreme Court with unlimited original criminal and civil jurisdiction over all persons, regardless of racial or ethnic considerations. When Kenya became a Republic in 1964, the Supreme Court was renamed the High Court.
In 1967, the Judicature Act, the Magistrates’ Courts Act and the Kadhis Courts Act were enacted to streamline the administration of justice.
Public Information on the Supreme Court Building
The Supreme Court of Kenya sits at the intersection of Taifa Road and City Hall Way in the capital Nairobi. It is located in the Central Business District, next to the Kenyatta International Conference Centre (KICC), and the Office of Governor of the Nairobi County Government.
The Supreme Court Building was built in 1931 and is the official seat of the Chief Justice, the Chief Registrar and the Supreme Court itself. It has played host to many high-profile visitors including Hilary Clinton, who visited in 2012 as Secretary of State, and HE Kofi Annan, who has visited several times.
The building is of national heritage value by virtue of its rich history and architecture. It is classified as a national monument under the Antiquities and Monuments Act.
The building has three floors and a basement. It can be accessed via two gates: the main gate on City Hall Way and the other on Taifa Road, opposite Kenya Re Plaza. Other gates for special access exist.
Colonial Era Chief Justices
In colonial Kenya, the office of the Chief Justice was exclusively occupied by British nationals. The first Chief Justice of the Kenyan Judiciary, Sir Robert William Hamilton was appointed in 1906. At independence, Sir John Ainley was the Chief Justice who presided over the swearing in of founding President Jomo Kenyatta.
The colonial era Chief Justices are:
1). Sir Robert William Hamilton (1867- 1944) Chief Justice from 1906 to 1920
2). Lt. Col. Jacob William Barth (1871-1941) Chief Justice from 1920 to 1934
3). Sir Joseph Sheridan (1882-1964) Chief Justice from 1934 to 1946
4). Sir John Harry Barclay Nihill (1892-1975) Chief Justice from 1946
5). Sir Harace Hector Hearne (1892-1962) Chief Justice from 1951 to 1954
6). Sir Kenneth Kennedy O’connor (1896-1985) Chief Justice from 1954 to 1957
7). Sir Ronald Ormiston Sinclair (1803-1996) Chief Justice from 1957 to 1962
8). Sir John Ainley From 1962 to post independence
Independent Kenya Chief Justices
At independence, Sir John Ainley was the Chief Justice who presided over the swearing in of the founding president, Jomo Kenyatta. He served until 1968 when he was replaced by Justice Dennis Farrel in an acting capacity. Farrel served for a very short time.
The first African of Kenyan origin to occupy the office of the Chief Justice was the late Mr Justice Kitili Mwendwa who was appointed in July 1968 and served until July 1971. Sir James Wicks then took over office in 1971 and served until January 1982 when he was replaced by Sir Alfred Simpson. Simpson served until 1985.
After Simpson, Mr Justice Chunilal B. Madan who in pre-independence Kenya had come into the limelight for his agitation for independence, was appointed in October 1985 and served for only a year before being replaced by Justice Cecil Henry Ethelwood Miller in 1986. He served until 1989.
Justice Robin Allan Winston Hancox replaced Miller and occupied the office during the turbulent period of the agitation for multi party democracy. He served as the Chief Justice from 1989 to April, 1993.
Justice Fred Kwasi Apaloo who replaced Hancox, had the distinction of serving as Chief Justice in two different countries. He was the Chief Justice of Ghana between 1977 and 1986. In Kenya, he served for a year between 1993 and 1994 when he was replaced by Abdul Majid Cockar who then occupied the office until his retirement from the Judiciary in 1997.
Justice Zachaeus Richard Chesoni, previously the Chairman of the Electoral Commission of Kenya (ECK), took over office and served until his untimely demise in 1999. He was replaced by Justice Bernard Chunga who resigned from the office in 2003 paving way for the appointment of Justice Evans Gicheru. Justice Gicheru served until the promulgation of the new Constitution in 2010 when Dr Willy Mutunga was appointed in an unprecedented public recruitment exercise.
Sir John Ainley 1962-1968
Sir John Ainley was the first independent Kenya Chief Justice after having assumed office in 1962, a year before independence. Sir Ainley who served in several British colonial territories before coming to Kenya, had the singular honour of having sworn in the last Governor General of Kenya, Sir Malcolm MacDonald, in 1963, and Kenya’s founding President, Jomo Kenyatta, in 1964.
He served until 1968 when he was replaced by Justice Dennis Farrel. Sir Ainley is remembered as the judge who convicted Kisilu Mutua for the assassination of Pio Gama Pinto, a Kenyan journalist, politician and freedom fighter.
Ainley sentenced Mr Mutua to death on July 15, 1965.
Arthur Dennis Farrel 1968
Justice Arthur Dennis Farrel, the second Chief Justice of post independence Kenya, was appointed to the post in an acting capacity in May 1968. He occupied the office of the CJ for the shortest period in history. It is believed that he was sent home because of his handling of the criminal appeal of Bildad Kaggia, the former freedom fighter and a fiery nationalist who agitated for the poor and the landless. Kaggia at one time, served as a Minister in Jomo Kenyatta’s Cabinet. He had been convicted of holding a political meeting without a license and sentenced to one year imprisonment. He appealed and his case came up before acting CJ Farrell and a Mr Justice Dalton. They upheld the conviction, but reduced the sentence to six months. Farrell was immediately retired after having served for only two months.
Kitili Mwendwa 1968-1971
Justice Kitili Mwendwa, the third Chief Justice in independent Kenya, was appointed to assume office at the age of 39. Mwendwa, is the first black African of Kenyan origin, to hold the office of the CJ. He obtained a Bachelor of Laws degree from Exeter University and a Masters degree in law from Oxford University. Justice Mwendwa was admitted to the Bar in England and was a barrister of Lincoln’s Inn. He joined the civil service in 1962 quickly rising to become Permanent Secretary in 1963 and Solicitor General in 1964. He became the Chief Justice of Kenya in July 1968 after the retirement of the then acting CJ Arthur Farrell. Mwendwa resigned in 1971 following accusations that he was part of a military plot to overthrow the Government of President Jomo Kenyatta. He later came back to public service as a Member of Parliament for Kitui Central after more than a decade in private business. Justice Mwendwa died in a road accident in September 1985.
Sir James Wicks 1971- 1982
Sir James Wicks was appointed the fourth Chief Justice of Kenya after the resignation of Justice Mwendwa. Sir Wicks, a conservative Englishman and a former surveyor before he shifted to law, goes down in history as Kenya’s longest serving CJ and the only one to have served two Heads of State, Presidents Jomo Kenyatta and Daniel arap Moi.
During his leadership at the Judiciary, it is said that the Executive did not lose any critical case and judges were known to consult with the Government whenever the Executive had an interest in a case. Sir Wicks who strongly supported the Government, is said to have rewritten a judgment in favor of the Executive. For his loyalty, the law on retirement age was amended three times to retain him until he was 74 years old. This happened when he attained the age of 68, 70, and finally 72, when the Constitution was amended to set the retirement age at 74 years.
Chunilal Bhagwandas Madan 1985-1986
Justice Chunilal Madan was the second Kenyan to be appointed the sixth Chief Justice of Kenya. Madan is among public officers who served at different times, in all three branches of the government; the Judiciary, the Legislature and the Executive. A former student of Jamhuri High School, he was called to the Bar in London at the Middle Temple Inn at the age of 21. He was later to be recognised by the Queen of England with the prestigious honour of Queen’s Counsel. He was appointed a judge of the High Court in 1961. At 74 years old, he was the longest serving member of the Judiciary to be appointed CJ by President Daniel arap Moi in 1985. He is best remembered for saving Stanley Munga Githunguri, a politician, when he prohibited the Attorney General from prosecuting him. He ruled that prosecutorial powers were being used in an oppressive manner. Madan is remembered for his brilliance, sound understanding of the law and independence from the Executive. In the short period he served, Madan did a lot to restore the reputation of the institution which had until then, often acted at the behest of the Executive. He was the first person to take steps over corruption in the Judiciary. Madan is arguably both the best judge to ever sit on the Kenyan Judiciary and also the best CJ to ever head it after his predecessors. He served for only 13 months before reaching the mandatory retirement age.
Cecil Henry Ethel wood Miller 1986- 1989
Cecil Henry Ethelwood Miller is the second black person to be appointed to the office of the Chief Justice after Justice Mwendwa and the seventh since independence. Born in Guyana, Justice Miller served as a fighter pilot for the Royal Air Force in England during World War II before studying law and being called to the Bar at the Middle Temple Inn.
He came to Kenya in 1964 at the invitation of Prime Minister Jomo Kenyatta shortly after independence and joined the High Court as the first judge of African origin. He was promoted to the Court of Appeal in 1978 after 14 years at the High Court. He shot to national prominence in 1983 when he was appointed to head a judicial commission of inquiry to investigate allegations that the former Attorney General, Charles Njonjo, was plotting to overthrow the government of President Daniel arap Moi.
During his tenure, the Judiciary became more emasculated by the Executive and the Government removed the security of tenure for judges and that of the Chief Justice. He was however instrumental in the africanisation of the Judiciary. Justice Miller was the first chairman of the Law Reform Commission.
Robin Allan Winston Hancox 1989-1993
Allan Robin Winston Hancox served as the eighth independent Kenya Chief Justice between 1989 and 1993 during the turbulent period of the agitation for multiparty democracy. Born in England, where he attended school, Hancox came to Kenya after being called to the Bar and joined the colonial Judiciary as a resident magistrate in 1957. He was transferred to Nigeria in the same capacity but came back to Kenya in 1963 as a senior resident magistrate. Hancox was appointed High Court judge in 1969 and later in 1982, joined the Court of Appeal. He served as the chairman of the law Reform Commission from 1987 until his appointment as Chief justice. Hancox is well known for the Kenya Appeal Reports referred to as the Hancox Reports, published under his editorship.
Fred Kwasi Apaloo 1993-1994
Justice Fred Kwasi Apaloo, the ninth Chief Justice of independent Kenya, has the distinction of serving as Chief Justice in two countries. First, he served in Ghana between 1977 and 1986 and later in Kenya in 1993. Born in the Volta Region of Ghana, Apaloo studied law in England and was admitted to the Bar at the Honorary Society of the Middle Temple Inn. He returned home to practice law and in 1964 he was appointed a High Court Judge after the independence of Ghana in 1957. As a judge in Ghana, he distinguished himself by acquitting five persons, including three associates of President Kwame Nkurumah, who had been charged with treason against his regime. Despite the bad blood it created with the Government, he was appointed to the Court of Appeal in 1966 and later, to the Supreme Court of Ghana in 1971. In 1977, he was appointed Chief Justice of Ghana. He joined the Kenyan Judiciary in the early 1980s as a High Court judge and rose to become a Court of Appeal Judge in the late 1980s. He left the court to work for the World Bank Administrator Tribunal where he served until his appointment as Chief Justice of Kenya in 1993.
Abdul Majid Cockar 1994-1997
Justice Abdul Majid Cockar was appointed the 10th Chief Justice of independent Kenya in 1994. Cockar who first trained as teacher, enrolled as a Barrister in Law in 1946 and qualified with a Post Graduate Diploma. He started his legal career taking briefs in the Mau Mau trials during the emergency. He joined the judicial service as a Resident Magistrate in 1961 rising through the ranks to serve as High Court Judge and Judge of Appeal and later appointed in 1994 as the Chief Justice. To his credit, he is the only former CJ who has published his memoirs, “Doing, non-Doings and Mis-Doings by Kenya Chief Justices, 1963-1998.” Cockar served on the bench for over 35 years, before retiring in 1997 as a Chief Justice.
Zachaeus Richard Chesoni 1997-1999
Justice Zacchaeus Chesoni was serving as chairman of the Electoral Commission of Kenya (ECK) when he was appointed the 11th Chief Justice by President Daniel arap Moi in December 1997. He was the second indigenous Kenyan after Justice Mwendwa to hold the office of the Chief Justice in Kenya since it gained independence from Britain. After qualifying as a lawyer, Chesoni started out at the lands office. He later joined the Judiciary as Registrar, succeeding J. Nyarangi. He was first appointed to the bench in 1974. Chesoni served as Chief Justice until his untimely demise in 1999.
Bernard Chunga 1999-2003
Bernard Chunga was a surprise appointment as the 12th Chief Justice of the independent Kenya. Chunga previously worked as Deputy Public Prosecutor and was the lead counsel in the Commission of Inquiry into the death of Robert Ouko. He was the last Chief Justice of Kenya during President Daniel arap Moi’s reign, but his name is more associated with his earlier role as the country’s Deputy Public Prosecutor when he was one of Moi’s principal instruments in dealing with political dissident, academics and activists in the 1980s. He is best known for his aggressive prosecutions against members of Mwakenya Movement, an outfit that was accused of fanning anti-government ideals in the early 1980s, and other underground movements.
A product of the old Kenya School of Law, Chunga began his career as a policeman and later joined the Attorney General’s Chambers where he rose to the position of Deputy Director of Public Prosecutions (DPP). He was promoted to CJ in 1999. A strict disciplinarian and excellent administrator, Chunga was known to attend to complaints in the Judiciary and to effectively resolve them. Chunga was feared by court personnel, magistrates, and even some judges for his no-nonsense approach to administration.
He established special divisions of courts for specific issues, thereby addressing structural causes behind delays. In 2001 he crafted rules for applications to the High Court for enforcement of fundamental rights. He revived the publication of written Law Reports in 2002. On February 26, 2003, rather than face a tribunal established by newly elected President Mwai Kibaki to investigate alleged misconduct, Justice Chunga resigned paving way for the appointment of Justice Evans Gicheru.
Johnson Evans Gicheru 2003-2011
Johnson Evans Gicheru was appointed to hold the office of the Chief Justice by President Mwai Kibaki upon his election in 2003. He is the second longest serving CJ and the 13th to hold the office. Early in his career, he worked as a Senior State Counsel in the Office of the Attorney General and as an administrative officer in the Office of the President.
Justice Gicheru was appointed a Judge of the High Court in 1982 and on June 8, 1988, to the Court of Appeal. His tenure as CJ, begun on February 21, 2003. Justice Gicheru secured national admiration in 1991 when he chaired the judicial commission of inquiry into the disappearance and death of the then Minister for Foreign Affairs, Dr Robert Ouko. He retired on February 27, 2011, upon the promulgation of the new Constitution.
Dr Willy Mutunga 2011- 2016
Justice Willy Mutunga was appointed the 14th Chief Justice of the independent Kenya on June 22, 2011. Mutunga is the first Chief Justice to be appointed competitively and publicly under the new Constitution, with the mandate of first President of the newly established Supreme Court. Dr Mutunga obtained a bachelor’s degree in law and master’s degree from the University of Dar-es-Salaam, Tanzania, in 1971 and 1974, respectively, and a PhD from York University (Osgoode Hall Law School) in Toronto, Canada in 1992. He taught law at the University of Nairobi, where he was also Secretary-General of the University Staff Union.
He also served as chairman of the Law Society of Kenya (LSK) and Executive Director of Kenya Human Rights Commission (KHRC) and Kituo Cha Sheria – Legal Advice Centre. His work in the pro-democracy movement put him at loggerheads with President Moi’s regime. As a result, Dr Mutunga was detained in 1982 to 1983. He is widely published and until his appointment as the CJ, Dr Mutunga was the representative for the Ford Foundation, Eastern Africa Regional in Nairobi.
Dr Mutunga is a lawyer, intellectual, human rights advocate, reform agent, writer and philanthropists. He is a firm believer in positive masculinity and mentorship. His career spans a rich experience in litigation, civil society, academia and government.
Dr Mutunga is credited for spearheading wide ranging reforms in Kenya’s Judiciary and the justice sector thereby laying the foundation for a responsive, open and independent Judiciary, and one that is conscious and committed to delivering on its constitutional mission.
David Kenani Maraga 2016 – 2020
Justice David Kenani Maraga is the 15th and the current Chief Justice of the Republic of Kenya. Maraga replaced Dr Willy Mutunga in 2016 after the retirement in June 2016. Prior to his appointment as Chief Justice, Maraga was the Presiding Judge of the Court of Appeal at Kisumu and the Chairperson of the Judiciary Committee on Elections. He served as Chairperson of the Tribunal appointed by the President to investigate the conduct of a Judge of the High Court. He served as the Presiding Judge of the Family Division of the High Court at Nairobi and Resident Judge at the High Court at Nakuru.
Before joining the Judiciary, Justice Maraga was a legal practitioner for 25 years in conveyancing, civil and criminal litigation. He also served as the Chairman of the Rift Valley Law Society and as a member of the Constitutional Review Task Force of the Seventh-day Adventist Church, East African Union.
Justice Maraga holds a Master of Laws (LLM) Degree from the University of Nairobi a Bachelor of Laws (LLB) Degree from the same University and a Diploma in Legal Practice from the Kenya School of Law. He was admitted onto the Roll of Advocates in October 1978. He is a member of the Law Society of Kenya and the Chartered Institute of Arbitrators, London.
Justice Maraga is an accomplished trainer and facilitator who has facilitated in several capacity-building workshops at the Judiciary Training Institute and the Law Society of Kenya’s Continuous Legal Education (CLE) workshops. He has presented papers in numerous local and international seminars and conducted trainings in Law.
Lady Justice Martha Karambu Koome
Lady Justice Martha Karambu Koome is a Kenyan advocate and Human Rights Defender, serving as a judge at the Court of Appeal of Kenya following her appointment in 2013. On 27 April 2021, she was nominated as Kenya’s Chief Justice by the Judicial Service Commission. She is the first woman to be nominated as Chief Justice in Kenya. She has an aggregate 33 years experience in the legal profession.
She was admitted to the Bar as an Advocate of the High Court of Kenya in 1986 and started as a legal associate at Mathenge and Muchemi Advocates until 1993, when she opened her own law firm and became the managing partner until 2003. She was elected as a council member of the Law Society of Kenya (LSK) in 1993-1996.
During her tenure at the Law Society of Kenya, she took a leading role in constitutional and legal reforms and was part of the constitutional review process as a delegate at the Bomas of Kenya where she partially chaired the thematic area on the Bill of Rights. Justice Koome also served as the inaugural treasurer in the East Africa Law Society between 1994-1996. She was has also served as Chairperson of FIDA one of the leading human rights organizations in the country.
Lady Justice Martha Koome has distinguished herself as a defender of Human and Gender Rights. She was one of the lawyers who actively participated in the clamour for the repeal of section 2A of the Constitution and for the Independence of the judiciary. She is an acclaimed expert in family law and she takes a keen interest in the welfare of children. She was a runner up in the 2020 United Nations person of the year. In 1995 she was appointed by the African Union meeting of heads of states as a Commissioner to the African Committee on the Rights and welfare of children. She has also served as the Chairperson of the National Council on the Administration of Justice special taskforce on children matters where she helped steer the review of the Children’s Act.
Justice Koome was among 13 candidates who applied for appointment to replace David Maraga when he retired in January 2021. She was shortlisted for the position, and attended her public interview on April 14, 2021.
When the JSC invited memoranda on her suitability for nomination, the President of the Law Society of Kenya submitted a complaint accusing her of being an unfair arbiter, by ruling some specific court cases based on nepotism, favoritism and improper motive by ruling in favor of the executive arm of the Kenyan government for improper motive and sometimes based on ethnicity. In a surprise move, she instructed her lawyers to issue a demand to the LSK President, threatening to sue him over defamation arising from the complaints he submitted to the JSC.
Justice Koome’s suitability was also challenged by Khelef Khalifa who questioned the manner in which she took part in a Court of Appeal sitting that reversed a judgment of the High Court that had declared that all Returning Officers who had been retained by the IEBC to manage the repeat presidential election on 26 October 2017 had been unlawfully appointed. Once arguments in the case were concluded, the High Court scheduled the judgment for delivery on October 25, 2017, the eve of the repeat presidential election. On the eve of this judgment, the Government declared October 25 a public holiday, meaning Courts would not be operational and Judges would not be in a position to render any judgments. Chief Justice David Maraga issued special authority to the Judicial Review Division of the High Court in Nairobi to sit during the public holiday so that the Judges could dispense with the scheduled judgment. No such authority was given for the Court of Appeal whose registries remained closed. Once the High Court delivered the judgment holding that the Returning Officers were in office illegally, the IEBC somehow managed to file an appeal at the Court of Appeal which was closed due to the public holiday, and Lady Justice Koome appeared alongside two other Judges of the Court of Appeal to handle the matter. All three Judges were not serving in the Court of Appeal in Nairobi at the time, and the Chief Justice had not given authority for the Court to sit on a public holiday. The three Judges had ostensibly been called to sit by the then President of the Court of Appeal, Justice Paul Kihara Kariuki. The Judges stayed the High Court Judgment, thereby giving the IEBC the green light to run the repeat presidential poll the following day.
When questioned about her role in this case during the interviews, she indicated that she had to comply with the directives of the President of the Court of Appeal who summoned her to sit, and that the sitting was important because it saved the country from a constitutional crisis, alluding to the apparent lack of a provision in Kenya’s laws for the extension of the term of the President where a repeat presidential election is not held within 60 days as demanded by the Constitution.
At the conclusion of the interviews, the JSC announced her nomination for the position, setting her up to be the 1st female, and 15th Chief Justice of the Republic of Kenya.
Her name was subsequently transmitted to the President who sent it to Parliament for vetting and approval before her formal appointment. Her vetting hearing is scheduled before Parliament on May 13 with a vote soon thereafter.
Role of Judicial Service Commission (Kenya)
The Judicial Service Commission should promote and facilitate the independence and accountability of the judiciary and the efficient, effective and transparent administration of justice and should-
recommend to the President persons for appointment as judges;
review and make recommendations on the conditions of service of-
judges and judicial officers, other than their remuneration; and
the staff of the Judiciary;
appoint, receive complaints against, investigate and remove from office or otherwise discipline registrars, magistrates, other judicial officers and other staff of the Judiciary, in the manner prescribed by an Act of Parliament (the Judicial Service Act);
prepare and implement programmes for the continuing education and training of judges and judicial officers; and
advise the national government on improving the efficiency of the administration of justice.
Other functions of the Judicial Service Commission n Kenya can be found under Article 252 of the Constitution. The Commission-
may conduct investigations on its own initiative or on a complaint made by a member of the public;
has the powers necessary for conciliation, mediation and negotiation;
should recruit its own staff; and
may perform any functions and exercise any powers prescribed by legislation, in addition to the functions and powers conferred by the Constitution.
In performing its functions, the Judicial Service Commission should be guided by the following-
competitiveness and transparent processes of appointment of judicial officers and other staff of the judiciary; and
the promotion of gender equality.
Powers Of The Judicial Service Commission
According to Article 253 of the Constitution, the Commission-
is a body corporate with perpetual succession and a seal; and
is capable of suing and being sued in its corporate name.
More powers of the Judicial Service Commission are in section 13 of the Judicial Service Act. The Commission should have the power to-
purchase or otherwise acquire, hold, charge and dispose of movable or immovable property;
borrow and lend money;
enter into contracts;
do or perform all such other things or acts necessary for the proper performance of its functions under the Constitution and the Act which may be lawfully done or performed by a body corporate.
The Commission also has the power to issue a summons to a witness to assist for the purposes of its investigations.
Recommend individuals to the President for appointment as judges
Review and recommend the conditions of service of judges and judicial officers, other than their remuneration and the staff of the Judiciary
Appoint, receive complaints against, investigate and remove from office or otherwise discipline registrars, magistrates, other judicial officers and other staff of the Judiciary, in the manner prescribed by an Act of Parliament
Prepare and implement programmes for the continuing education and training of judges and judicial officers
Advise the national government on improving the efficiency of the administration of justice.
Composition & Membership of Judicial Service Commission (Kenya)
Under Article Article 171(1) of the Constitution of Kenya, the Judicial Service Commission consists of the following 11 members:
The Chief Justice, who shall be the chairperson of the Commission;
One Supreme Court judge elected by the judges of the Supreme Court;
One Court of Appeal judge elected by the judges of the Court of Appeal;
One High Court judge and one magistrate, one a woman and one a man, elected by the members of the association of judges and magistrates;
Two advocates, one a woman and one a man, each of whom has at least fifteen years’ experience, elected by the members of the statutory body responsible for the professional regulation of advocates;
One person nominated by the Public Service Commission;
One woman and one man to represent the public, not being lawyers, appointed by the President with the approval of the National Assembly;
The Chief Registrar of the Judiciary who is the Secretary to the JSC.
Judicial Service Commission (JSC) Current Membership
The current membership of the JSC is as follows:
Prof. Olive Mugenda – Nominated by the President, representing members of the public – Acting Vice Chair of the Commission
Justice Smokin Wanjala – served as representative of Supreme Court Judges
Justice Isaac Lenaola, currently Associate Justice of the Supreme Court, served in the JSC from 2010 – 2013 as the representative of High Court Judges
Justice Aggrey Muchelule – served as representative of High Court Judges
Prof. Githu Muigai – served during his tenure as Attorney General
Hon. Emily Ominde – served from 2010 – 2020 as the representative of Magistrates
Florence Mwangangi, Advocate of the High Court of Kenya, served as representative of the Law Society of Kenya
Prof. Tom Ojienda, Senior Counsel, served as representative of the Law Society of Kenya
Prof. Margaret Kobia, PhD, Commissioner, served as representative of the Public Service Commission
Kipng’etich arap Korir Bett – served as presidential nominee
Structure of the Kenyan Courts
The courts have power to hear and determine disputes, primarily of criminal and civil nature. Criminal cases are those in which the State prosecutes a person or an organization for committing an act which is not in the interest of the public, and therefore considered to be an offense against the State.
Civil cases originate from a person who seeks redress for a private wrong such as breach of contract, trespass, or negligence; or to enforce civil remedies such as compensation, damages or to stop some action.
The courts under the Constitution operate at two levels, namely; Superior and Subordinate courts.
Court of Appeal,
Employment and Labor Relations Court
Environment and Land Court
Court Martial, and
Any other court or local Tribunal established by an Act of Parliament
The Supreme Court
The Supreme Court is the highest Court in the Judiciary while the lowest Court is the Magistrates court.
The court hears and determines cases relating to presidential elections. It hears appeals on cases that have been concluded by the Court of Appeal, issues advisory opinions on matters concerning County Governments, in any cases involving the interpretation or application of the Constitution and in matters of general public importance.
Further, the Supreme Court hears appeals from any other court or tribunal as prescribed by national legislation and determines the validity of a declaration of a state of emergency.
It comprises the Chief Justice (President of the Court), the Deputy Chief Justice (Vice-President) and five judges. The court sits in Nairobi.
The Court of Appeal
The Court of Appeal handles appeals arising over the decisions of the High Court as well as any other court or Tribunal as provided for in Law. The court comprises a maximum of 30 Judges. The Judges of the Court of Appeal elect a President from among themselves. The Court of Appeal has been decentralized and currently has a total of six registries namely; Nairobi, Mombasa, Nyeri, Kisumu, Nakuru and Eldoret.
The High Court
The High Court has jurisdiction to hear all criminal and civil cases as well as appeals from the lower courts. The High Court comprises a maximum of 150 judges and has original jurisdiction in all criminal and civil matters. The High Court is a premier court in interpreting the Constitution, hears appeals from subordinate courts and tribunals and supervises all administrative bodies (judicial review).
High Court divisions include Family, Commercial and Admiralty, Constitutional and Judicial Review, Land and Environment, Criminal, Industrial and Environmental and Land Court. There are at least 20 High Court stations countrywide.
The Constitution has also established the Industrial Court and the Land and Environment Court at the same level as the High Court. Industrial Court deals with labour and employment matters while the Land and Environment Court deals with land and environment matters and appeals from all tribunals dealing in land and environment matters.
Magistrates’ Courts deals with the majority of cases in Kenya. There are 116 court stations manned by at least 455 magistrates. A Magistrate’s Court has the authority to hear all criminal cases except murder, treason and crimes under international criminal law. Magistrates’ courts also hear all civil cases except those limited by statute. Other lower courts include, Kadhis courts, Courts martial and Tribunals. [Read more…]
Kadhis Courts deal with cases such as family and succession, while appeals go to High Court. They have authority to hear cases on marriage, divorce and inheritance where those involved are Muslims.
Here is a list of all the Kadhis in Kenya
Al Muhdhar A.S. Hussein
Rashid Ali Omar
Deputy Chief Kadhi
Nairobi (Upper Hill)
Hassan Omar Sukyan
Athman Abdulhalim Hussein
Salim S. Mohamed
Talib B. Mohammed
Zaharani M. Omar
Sheikh M. Hassan
Hamisi M. Mshali
Juma Khamisi Tsamuo
Mohamed Abdalla Kutwaa
Said H. Bedzenga
Juma A. Abdallah
Sebastian D.O. Ratori
Swaleh Mohamed Ali
Abdilaziz Maalim Mohamed
Muktar Billow Salat
Wajir – (Habaswein)
Ali Dida Wako
Mwaito Salim Juma
Mvudi Masoud Makange
Garissa – (Dadaab)
Adan Ibrahim Tullu
Kunyuk John Tito
Isaack Hassan Mohamed Noor
Malampu Abdilatif Silau
Abdi Osman Sheikh
Mursal Mohamed Sizi
Ishaq Abduljabar Hussein
Salim Mwidadi Abdullah
Rashid Kokonya Otundo
Lodwar – (Kakuma)
Habib Salim Vumbi
Abdullahi Abdiwahab Mursal
Sheikh Shaban Issa Muhammed
The Court Martial hears cases involving people serving in the Military. They are established under the Armed Forces Act.
Tribunals are bodies established by Acts of Parliament to exercise judicial or quasi-judicial functions. They supplement ordinary courts in the administration of justice. Tribunals, however, do not have penal jurisdiction.
Tribunals, like the courts, have to respect the Bill of Rights in their decisions and not be repugnant to justice and morality or be inconsistent with the Constitution or other laws of the land. Most tribunals are subject to the supervision of the High Court. All tribunals fall under the Judiciary.
The first high profile actions carried out by the newly appointed JSC were public interviews for the Chief Justice and Deputy Chief Justice positions in May 2011. The Commission nominated lawyers Willy Munyoki Mutunga and Nancy Baraza for the positions of Kenya’s Chief Justice and Deputy Chief Justice respectively. The names were forwarded to President Mwai Kibaki, who then submitted them to Parliament after consultation with the Prime Minister Raila Odinga where they were approved.
Supreme Court Judge Interviews
The Judicial Service Commission, interviewed 25 applicants and in June 2011 nominated 5 Justices to the Supreme Court of Kenya.
Baraza-Kerubo Village Market Incident
In January 2012, the Judicial Service Commission formed a sub-committee to investigate reports that Deputy Chief Justice Nancy Baraza assaulted a security guard at the Village Market shopping mall on 31 December 2011. The JSC subsequently recommended her suspension to President Mwai Kibaki and requested the President to appoint a tribunal to investigate her conduct in line with Article 168 (4) of the Constitution. After her suspension a commission formed to investigate her conduct recommended her removal from office. On 18 October, she subsequently resigned after withdrawing her supreme court appeal of the tribunal’s verdict.
2012–2013 Deputy Chief Justice Recruitment
The vacant position of Deputy Chief Justice was advertised by the Commission (JSC) on 9 November 2012. The JSC however re-advertised because it was dissatisfied by the number of applicants. The position subsequently attracted applications from 17 women and one man. Those shortlisted for the position were:
Judicial Service Commission (JSC) Versus Gladys Boss Shollei Saga
On 17 August 2013, the JSC, in a meeting in Mombasa (while Gladys Boss Shollei was away in a trip in Canada) resolved to commence investigations into complaints and allegations touching on financial management and governance issues in the Judiciary.
The Commission asked the Chief Registrar of the Judiciary, Mrs Gladys Boss Shollei, to take 14 days’ leave and appointed the Deputy Chief Registrar to act in her place.
Although the Chief Registrar filed a petition in the High Court seeking to restrain the Commission from taking any disciplinary action against her, she later elected to withdraw the case on 30 August 2013 without any conditions.
On 9 September 2013, the Judicial Service Commission served the Chief Registrar of the Judiciary, Mrs Gladys Boss Shollei, with 87 allegations touching on financial and human resource mismanagement, irregularities and illegalities in procurement, and misbehavior. The CRJ was given 21 days to respond, and a further 18 days for oral submissions on her request. Judicial Service Commission (JSC)
Allegations against Gladys Boss Shollei
Violation of the prescribed code of conduct for judicial officers
Violation of Chapter 6, and Article 232 of the Constitution of Kenya, 2010
Counter Accusations Against JSC
Shollei accused the JSC members of witch-hunting. Shollei said she had a difficult working relationship with lawyer Ahmednasir Abdullahi, Appeal Court judge Mohammed Warsame and chief magistrate Emily Ominde.
Shollei accused JSC members of receiving KShs 128 million in allowances in numerous unnecessary JSC meetings since 2011 at a rate of kshs 80,000 per sitting. Judicial Service Commission (JSC)
Leaked Chief Justice Emails “War Strategy: The 31-Point Plan”
On 27 September 2013, the Standard Newspaper published a trove of email correspondence between Mr Mutunga and the four-person team he has created as his hand-picked personal staff.
According to the documents, the “war plan” was to be executed within 21 days starting from 22 September, climaxing on 1 October when Mr Mutunga will call a full JSC meeting, dubbed the “Day of the Transformational Blood-Bath”, as point number 16 of the plot, the CJ was to impress upon the JSC to have Mrs Shollei dismissed or suspended.
The Chief Justice never denied the emails instead claimed his email account had been hacked.
Dismissal of Gladys Boss Shollei from Office
On 18 October 2013, JSC met in Supreme Court and resolved to remove the Chief Registrar of the Judiciary from office after failing to honour appearance to give an oral defence.
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