Kenyans will be forced to compensate six judges Sh126 million for violation of their rights following the refusal by President Uhuru Kenyatta to appoint them as recommended by the Judicial Service Commission (JSC) in 2019.
Court of Appeal judges Aggrey Muchelule, Weldon Korir, Prof Joel Ngugi, and George Odunga, as well as Justices Judy Omange, and Evans Makori of the Environment and Land Court, were left out from the list of 40 judges who were appointed in June 2021.
Judges Odunga, Muchelule, Korir, and Prof Ngugi were previously high court judges, while Justices Omange and Makori previously served as magistrates before their elevation.
And for refusing to appoint them as recommended by the judges and magistrates' employer, Justice Chacha Mwita said President Kenyatta discriminated against them, caused them anxiety, and injured their reputation.
The six judges were eventually appointed to their current positions by President William Ruto in September 2022 after a three-year wait.
“In the circumstances, I hold that the refusal or inaction of the President was not based on any law and thus violated their rights and fundamental freedoms,” said the judge.
President Kenyatta rejected the six judges citing integrity concerns, but did not reveal the details.
The judges argued that despite serving as high-ranking judicial officials, they endured public humiliation after their appointments were declined.
They said by purporting to cite undisclosed intelligence reports, the former President made public pronouncements portraying them as persons of questionable character and not fit to hold the offices of judges, further injuring their standing in the estimation of ordinary, just, and right-thinking members of society.
Justice Mwita said by casting aspersions on the integrity of the judges, President Kenyatta put their reputation on the line.
He awarded the judges Sh16 million each as general damages and Sh5 million each for abuse of state power, which Justice Mwita said should send a clear message that rights have to be respected and protected and also deter such breaches in the future.
The judge said there was no doubt that President Kenyatta created disparity and discrimination on equality before the law and equal benefit before the law when he picked 34 judges as recommended by JSC and left out the six.
He said the President further failed to give a written explanation as to why he declined the appointments, a move that ended up injuring their reputation and lowered their dignity.
Justice Mwita added that once they were recommended for appointment by JSC, he had no powers to pick some and leave out others as the judges were a cohort.
The court noted that the Attorney General did not deny the assertions or controvert the claims of violations and infringement of their rights.
According to the court, the six judges had a legitimate expectation once their names were forwarded to the President for appointment.
He said the President had no right to decline them and his action or inaction violated their rights. The president’s mandate, the judge said, is ceremonial and limited to appointment, swearing in, and gazettement- and therefore, he cannot approve, disapprove or even cherry-pick.
The judge said the compensation will attract interest from the date of the judgment, until payment in full. He also awarded the six judges' costs of the suit.
