Eyes on seven-judge Bench comprising veterans of appellate court

Friday, August 20th, 2021 00:00 |
The five-judge Bench that declared the BBI bill unconstitutional. Photo/PD/File

Seven judges bear the responsibility of deciding probably the most consequential case since the nullification of the 2017 presidential election.

The case does not only involve the country’s top political leaders-including the Presidency-but has serious ramifications on 2022 succession politics. 

It will also put to the test the supremacy war between the Executive and the Judiciary as well as the stamina of the Court of Appeal. 

Kenyans across the country are today expected to train the eyes on Court of Appeal President Daniel Musinga and Justices Roselyne Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuiyott.

With the exception of Justice Tuiyott- who was recently promoted from the High Court, the rest are veterans of the court. Justice Kiage is the presiding judge in Kisumu while Kairu oversees the Mombasa Law Courts.

The soft-spoken Justice Musinga who was elected president of the court after elevation of Justice William Ouko to the Supreme Court, is celebrated for the bold decisions he made between 2009 and 2011.

The judge famously annoyed the Executive when he quashed the controversial appointment of Judge Alashir Vishram and lawyer Githu Muigai as Chief Justice (CJ) and Attorney General respectively by President Mwai Kibaki during the coalition government.

In 2009, he nullified the creation of new districts, saying the units, which were done in a period of more than 10 years by President Kibaki and Daniel Moi, contraved the Constitution. Justice Musinga was the 2011 Jurist of the year.

In 2013, Justice Musinga sat in a bench that faulted the High Court decision to redraw electoral boundaries following a petition over the creation of 80 new constituencies.

Justice Sichale- a former commissioner with the defunct anti-corruption sat in the much-criticised the appeal court-bench that overturned High Court judge George Odunga’s declaration that the appointment of returning and presiding officers for the 2017 was irregular and illegal. 

One of the longest judges of Court of Appeal Nambuye was among judges, including Kiage, who lifted the recent High Court order blocking the appointment of the chief justice.

Radical surgery

Nambuye who was appointed to the Court of Appeal in 2011, has successfully fought two recommendations for her removal from the courts. 

In 2003, the Integrity and Anti-corruption Committee of the Judiciary that conducted a “radical surgery”  of the Bench said she was unfit to serve and recommended she be removed from office. 

She however challenged this decision by the Justice Aaron Ringera-led team and was reinstated by former President Mwai Kibaki.   

And in  2012 the Sharad Rao-led Vetting Board proposed her removal because of her tendency to delay rulings and judgments.

She again challenged her removal and asked that she be vetted afresh.  She was declared fit to serve as a judge during the re-vetting. She is due to retire next year.

Kiage, a former  prosecutor and part-time  university lecturer and author, is known for his habit to volunteer to write judgments in cases he participates in deciding.

Justices Kairu and Tuiyott have mostly been based at the commercial division.  

Together with Justice  Nambuye, Kairu delivered the ruling that former High Court judge Muga Apondi should not claim Sh2.5 fees from lawyer Philip Nyachoti, since he had no direct instruction to appear in an election petition.

 Justice  Okwengu was the recipient of the Law Society of Kenya Award for distinguished service in the Administration of Justice for the year 1998.

Highly techno-savvy, in February 2020, she issued 57 appeal court judgments and rulings using video link.

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