When Justice Mathews Nduma Nderi ordered the Teachers Service Commission (TSC) to give tutors pay rises of at least 50 per cent in 2015 on the strength of past agreements, he received praise that his ‘Solomonic’ decision had ended the longest strike in Kenya’s education history.
Before proceeding to hearing, Justice Nderi wore the hat of a conciliator in an attempt to have the two sides reach an amicable settlement, and avoid the difficulty of leaving one party aggrieved with a judgement.
When conciliation failed, he proceeded with hearing the case and eventually awarded teachers salary increments of between 50 and 60 per cent, depending on their grades.
The State was not happy, and it successfully appealed the decision.
As the TSC eventually implemented a pay rise for teachers, legal experts speculated that the appeal was likely a tactic to stop the floodgates from opening as thousands of civil servants in other sectors were also victims of government’s false pay-raise promises.
Yesterday, Justice Nderi, who is looking to become Kenya’s third Chief Justice under the 2010 Constitution, regretted having proceeded with the suit after failing to broker a deal between the warring sides.
The judge told the Judicial Service Commission (JSC) that he should have handed the case to a different judge after the TSC failed to strike a deal with the Kenya National Union of Teachers (Knut) and the Kenya Union of Post-Primary Education Teachers (Kuppet).
The JSC had asked Justice Nderi why he ignored expert opinions that predicted an economic meltdown if teachers’ demands were met, likening the judge’s move to an attack on Kenya’s national security.
But Justice Nderi insisted that the TSC vindicated the controversial decision by implementing pay rises in an identical manner with his judgment.
“We had evidence from economists (for TSC) and counter-evidence from teachers. There was already an agreement (for teachers’ pay rise) that had been signed by the parties but the government reneged. As soon as my judgment was appealed, they engaged in negotiations in line with my decree. Were it not for my judgment, the teachers would still be in the same position.
“In hindsight, after conciliation failed I should have handed over the file to another judge. It happens in other jurisdictions,” Justice Nderi said before denying that his mother’s career as a teacher may have had an impact on the order for 50-60 per cent pay rise.
The judge said if appointed Chief Justice, he would prioritise investment in technology to enhance access to justice across Kenya, and also work on unlocking the deadlock between the Judiciary and Executive that has stalled hiring of more judicial staffers.
Justice Nderi revealed how his career was catapulted by a crackdown on individuals who were championing multi-party democracy.
In 1977, Justice Nderi was among lawyers that represented the Mutugi four— George Anyona, Edward Oyugi, Isaiah Ngotho Kariuki and Augustus Njeru Kathangu— who were arrested at a bar before being charged with sedition.
He then faced off with another candidate for Chief Justice, Senior Counsel Philip Murgor, who was then a prosecutor.
Before the Mutugi Four appealed their conviction, the government conceded that confessions used in the case were obtained through torture.
The aftermath was a furious government which set out on a revenge mission, even against lawyers that represented the Mutugi Four.
Following threats to his life and an opportunity to practise as a prosecutor in Swaziland (now Eswatini), Justice Nderi left Kenya and only returned in 2006.
“Threats followed with an early morning raid on my small office. I was taken to the DCI headquarters, which was then led by Noah Arap Too. I had just gotten married, had a young baby and that’s why I had to leave the country… If you knew who Superintendent Machiri was, what was happening in our country at that time, and having received threats in these corridors at the age of 28, you could understand why I made that decision (to leave the country),” Justice Nderi said.
The judge yesterday said there are too many complaints against judicial officers owing to case outcomes in which litigants ought to appeal the decisions.
Exuding confidence over the experiences he has acquired while working in Swaziland and the East African Community, the judge said he knows beyond doubt that he will build consensus among judges and JSC, which will spiral the Judiciary in the right direction.
He said the Judicial Training Institute, which performed very well under the watch of Kihara Kariuki, has slowed down in training judges and magistrates.
“The notion that the Judiciary is rotten with corruption is a mere perception which has spiralled over the years and the small percentage of the vice must be dealt with firmly,” the judge said in answer to Mr Kariuki.
The judge defended his stake in a family company, arguing that his wife owns the human resources consultation firm and that he only holds one share as a nominee for his wife.
Justice Nderi added that the one share he owns in the firm could not be solely registered to his wife at the time owing to Kenya’s laws on incorporation of limited liability companies.
