Justices David Odunga, Joel Ngugi speak out on Uhuru rejection

They also said they are yet to be notified about the claims levelled against them by the National Intelligence Service (NIS) that prompted President Kenyatta to reject their promotion to the Court of Appeal.

The two judges said since 2019 when they applied and were interviewed for the 11 slots announced by the Judicial Service Commission (JSC), they have never been made aware about anyone or a State agency having reservations on their appointments, either during the interviews or after the commission recommended their appointment. They maintained that their names were forwarded to the Head of State lawfully. 

Asked whether he intends to challenge the President's decision, Justice Odunga replied: “I haven’t given thought to it yet.” 

As to why the President rejected his appointment, he responded: “I don’t know.”

For his part, Justice Ngugi said he was in the dark as to why he was not promoted as recommended by JSC.

“I have never been informed of any reservations or served with any complaints by any person, organisation or State organ about my application or nomination by the JSC to the CoA,” Justice Ngugi said.

As to why the President rejected his appointment, he responded: “For this question, you will have to ask the Head of State who left my lawfully forwarded name.”

Human rights

Justice Ngugi said he would not comment on whether he intends to sue, but pointed out that there are three applications filed last week at the High Court in Nairobi challenging President's decision to cherry-pick the JSC nominees. The applications were filed by lawyer Adrian Kamotho Njenga, the Katiba Institute and Dr Magere Gakenyi. 

The two judges rose to fame due to their decisions on cases touching on human rights and the interpretation and implementation of the Constitution. Both joined the Judiciary as High Court judges in 2011.

Most of their judgments were perceived to be anti-establishment, the latest being their declaration that President Kenyatta has violated the Constitution by attempting to amend it through the Building Bridges Initiative (BBI). They were part of the five-judge bench that said the BBI was illegal and unconstitutional. 

Top on the list of the decisions made by Justice Odunga is a 2017 judgment in which he declared that the electoral commission illegally appointed 290 returning officers, potentially rendering the repeat presidential election of October 26, 2017 irregular.

In the judgment made on the eve of the repeat presidential election boycotted by opposition chief Raila Odinga, Justice Odunga found that the Independent Electoral and Boundaries Commission (IEBC) broke the law by not furnishing political parties with the names of proposed returning officers and their deputies at least 14 days before their appointment.

Another case he handled was challenging the constitutionality of a raft of security laws that Parliament passed in a chaotic session three years ago following a wave of terrorist attacks in Nairobi and other parts of the country.

He declared some segments of the legislation unconstitutional, attracting the wrath of the ruling Jubilee party MPs, who labelled him an ‘activist judge’. The Court of Appeal upheld his decision in its entirety, easing the pressure on him.

In 2020, he annulled the popular “kamata kamata Friday arrests” where suspects are deliberately arrested on Fridays and kept in police custody over the weekend.

Operating illegally

Justice Odunga, in December 2017, also quashed the government's decision to deregister a civil society group, Africa Centre for Open Governance (Africog), and arrest its directors for allegedly operating illegally in the country. 

He prohibited the Directorate of Criminal Investigations (DCI) from investigating and prosecuting seven directors of the lobby group over illegal operations. In addition, the court barred the Central Bank of Kenya from freezing the NGO’s accounts.

In 2018 Justice Odunga was awarded the Jurist of Year Award by the International Commission of Jurists (ICJ), which described him as consistent, fearless and impartial. 

In January 2017, Jubilee MPs were planning to discuss the conduct of Judge Odunga over claims that he has been delivering rulings that are sympathetic to the opposition Cord coalition. 

For Justice Ngugi, among the top cases he has handled is the detention of Kapseret MP Oscar Sudi over alleged hate speech and offensive conduct in September last year. 

The judge quashed a decision of the State to detain the MP pending answering of the charges.

Justice Ngugi, while stopping arrest or detention of the MP known for criticising government, said the detention was a radical remedy of addressing public order, peace and security.

Power and authority

"Why should the police arrest a citizen if they do not even have a provisional view of the offence the citizen has committed? It would seem repugnant to the ethos of constitutional justification of the exercise of power and authority in which our Constitution is steeped in to encourage such practice even if not categorically unconstitutional textually. In many cases, such Police action would be, in context and effect, unconstitutional," he stated. 

"This would be the case where the police conduct reveals a pattern or desire to overreach or to deploy the Criminal Justice System in a manner which unnecessarily diminishes rather than aggrandises personal liberty or autonomy of the arrested individual," said Justice Ngugi. 

Prior to joining the Judiciary, Professor Ngugi was based at the University of Washington (Seattle, Washington) where he taught law. 

His research interests at the University of Washington included the role of law in economic development, the role of governments in market regulation and wealth allocation, and legal reforms in transition and developing economies.

While in the United States of America (USA) he practiced law with the Boston law firm of Foley Hoag, LLP, as a corporate and international litigation associate. In Kenya he practiced law with the Kenyan firm Kariuki Muigua & Company.

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