Search for CJ: Why you can’t write off Justice Nduma Nderi

Justice Nderi, who was admitted as an Advocate of the High Court in 1988, holds a Bachelor of Laws degree from the University of Nairobi and a Master of Laws degree in International Trade Law from Stellenbosch University in South Africa. Upon admission to the Bar, he worked as a legal assistant in a company before he established his own firm in 1989.

His professional sojourn gave him international working experience in Swaziland’s Bar and Bench. His experience with the Bar in Swaziland is as a Senior Crown Counsel with the Government of Swaziland for a five-year period beginning 1993.

In 1998, Justice Nderi was already Judge President of Swaziland’s Employment and Labour Relations Court, thereby exhibiting recognition of his leadership and administrative ability.

Justice Nderi’s leadership and focus on labour relations is not only limited to the legal knowledge, he also holds a Diploma in Human Resources Management in addition to another on the Management of Business Organisations.

On his return to Kenya from Swaziland, Justice Nderi worked as Head of the Legal Division of Kenya’s pre-eminent trade union of employers, the Federation of Kenya Employers (FKE) for a period of two years, followed by a stint at the East African Community as its Principal Legal Officer. 

It was from the East African Community that he was appointed to the Employment and Labour Relations Court of Kenya in 2012.

Inherent bias

With this arsenal of qualifications and experience gained internationally, no reasonable person would think that Justice Nderi’s candidacy to be Chief Justice is fickle. The judge has the unique experience of having worked internationally. 

Added to this is the fact that the judge carries the experience of having worked for the government as counsel and then for an employer’s trade union in another country. This must have given him a unique approach to law as both a judge and as counsel for different parties who have different interests that must be addressed in the courts of justice. 

It’s taken as given that most professionals, and especially advocates, are prone to develop an inherent bias for the causes or kind of clients they represent. In the case of Justice Nderi, one would say that his having been counsel for government in Swaziland and as a legal head for the FKE, he would have in-built sympathy with employer and government positions.

This kind of bias is not evident in the judge’s work. His judgments in two cases decided in Kenya would tell you that his professionalism is beyond inherent bias by association. A decision the judge made last year in favour of a househelp, who was dismissed by an employer, attests to his independence.

The claimant had worked as a househelp in Eldoret for just under two years. On request for a pay increment, the househelp was dismissed and denied access to her erstwhile workplace. 

Justice Nderi was clear in his judgment that all employees, irrespective of their status, deserve fair treatment at work, and awarded her damages for unfair termination of her employment, including compensation for public holidays in which she had been forced to work as well as an order for the former employer to give her a Certificate of Service. 

By this decision, it is demonstrated that the judge believes that justice really is blind, but if not, is indifferent to status.

The second case was a decision against no less than the largest employer in the country, the Teachers’ Service Commission. In 2015, Justice Nderi heard and decided a claim by the teachers’ union for a long denied salary increment. 

Fosters peace

Despite government claims that teachers’  salary expectations would be unaffordable, the judge awarded the teachers a salary increment of up to 50 per cent to bring them in tune with the remuneration of other government workers. 

This is what he said in concluding this important decision: “Here is to hope that this judgment will bring to an end the era of arbitrary remuneration awards to teachers.”

These words are not salutary. They show a judge who cares for the effects of his decision on the parties to the case and the nation as a whole, a necessary sensibility for any person who seeks to sit on the highest court of the land as Chief Justice.

These two judgments reveal some nuggets about Justice Nderi’s approach to judging. First, that there’s a need for justice to be done in a manner that fosters peace, not only between the litigating parties, but also beyond them.

Secondly, they indicate that despite having worked for the government and employers in different phases of his career, he’s not beholden to the excuses and reasons that employers may give to avoid acting justly towards employees.

Put differently, Justice Nderi demonstrates that he is not wedded to any positions or legal results based on history and association. This is the hallmark of a judge’s oath and, may I add, a prime qualification for a Chief justice.

That he has held leadership positions of courts in different countries must also testify to something about the judge’s  administrative skills and leadership. 

The totality of Judge Nderi’s wide experience in judging and management, deep qualifications and academic credentials alongside evident personal belief in doing justice without fear or favour as seen in his decisions would put him in a good place in his quest for Chief Justice.