The spotlight is turning to the Judicial Service Commission (JSC) as it prepares to replace outgoing Deputy Chief Justice Kalpana Rawal, scheduled to retire early next year. However, some judges are staging a go-slow to resist a move by the commission to push those aged 70 into retirement.
Rawal has moved to court to contest the move to retire her at 70 years after JSC served her with a notice to proceed on terminal leave. She has obtained a court order blocking JSC for 45 days from implementing the move.
In spite of Rawal’s protests, Court of Appeal judges Lady Justice Wanjiru Karanja, Lady Justice Roselyne Nambuye, Lady Justice Agnes Murgor and Lady Justice Lydiah Achode of the High Court are tipped as the main contenders in the Rawal’s succession race.
The four are among eight applicants for the position who met requirements set by JSC in September. Others who applied for and met the required conditions are lawyer Surinder Kapila, Lady Justice Philomena Mwilu of the Court of Appeal and lawyer Pamela Tuitui, who once served as a commissioner in the defunct Electoral Commission of Kenya.
Kapila was among the unsuccessful applicants for Court of Appeal positions in 2012. Married to prominent lawyer Dinesh Kapila of D.V. Kapila & Advocates, she temporarily shot into prominence in 2011 when she was appointed by retired President Mwai Kibaki to sit on a tribunal to investigate the conduct of then Deputy Chief Justice Nancy Baraza, after she allegedly assaulted a security guard in an upmarket shopping mall in Nairobi.
However, the tribunal chaired by retired judge Philip Ransley was short-lived after Baraza opted to resign as DCJ rather than go through the probe. Baraza was replaced by Rawal. Kapila is the treasurer of the global International Federation of Women Lawyers (FIDA).
A reserved but well networked personality, Kapila serves as a non-executive director on the Ecobank Board of Directors Besides Rawal, the only other woman in the Supreme Court is 52-year-old Njoki Ndung’u who reportedly bowed out of the DCJ race at the 11th hour owing to her reported friction with members of the JSC.
On paper, Karanja stands above all the contenders for the DCJ job by virtue of her being the senior most woman judge in the Court of Appeal. Seniority of Bench members is determined by the date of swearing in and not on age, experience or the year one was admitted as an Advocate of the High Court.
A master’s degree holder, the judge has worked in the Judiciary since leaving university. She unsuccessfully contested for the DCJ’s position after the exit of Baraza. Legal experts say were merit to be strictly adhered to, and other factors such as political connections and ethnicity disregarded, Karanja would be the undisputed Rawal’s replacement.
Lawyers describe her as cool-headed, independent-mind and well grounded in law. She is not known to have ethnic or political godfathers in her working career, a mark that has earned her immense respect.
Ranked second to Karanja both in seniority and merit as also touted by legal analysts as possible holder of the DCJ post is Lady Justice Nambuye. She is the oldest of the women judges in the Court of Appeal.
She is 69-year-old and will be due for retirement in March upon attaining 70 years. Thus, observers note that her elevation to the Supreme Court would, apart from sentimental fulfillments, serve as a stop gap measure to give JSC ample time to shop around for a suitable steady and energetic duo who can inject stability in the country’s Judiciary after both Rawal and Mutunga exit.
Mutunga has indicated that he could retire in next June, one year before his official retirement time. In 2003, Nambuye was among the 23 judges whose careers were interrupted by a Judiciary purge carried by Justice Aaron Ringera, now a judge of the East African Court.
However, Nambuye moved to court and successfully challenged her dismissal. After winning the case she was reinstated and appointed to head of the Family Division of the High Court before being appointed to the Appellate Court.
Equally eminently qualified, 52-year-old Murgor is said to be disadvantaged in the race. The one-time Kenya Breweries Limited company secretary currently based at the Kisumu Law Courts is perceived as too young for the position.
A master’s degree holder, she is remembered for her articulate presentations in 2005 when she represented the Central Bank of Kenya at the Commission of Inquiry into the Goldenberg scandal chaired by Justice Samuel Bosire.
Justice Achode would beat all her competitors given that she has worked in the Judiciary all her life. She has previously served as the Registrar of the High Court, a niche that would enable her to keep tabs on the ongoings at the office of the Registrar of the Judiciary if she becomes the second-in-command in Kenya’s corridors of justice. Praised as independent-minded, Achode has no known ‘skeletons’ in her career.
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