The High Court ordered the government to pay Sh102.5 million in compensation to 41 judges whose appointment was delayed for nearly two years by former President Uhuru Kenyatta.
This was after the court found out that their constitutional rights were egregiously violated.
In a judgment delivered on Thursday, Justice Lawrence Mugambi ruled that the 22-month delay in appointing the judges despite their recommendation by the Judicial Service Commission (JSC) was unreasonable, unconstitutional and a breach of their rights to dignity and fair administrative action under Articles 28 and 47 of the Constitution.
The 41 petitioners had been nominated to serve in the Environment and Land Court and the Employment and Labour Relations Court on August 13, 2019, but were only appointed on June 3, 2021.
The court found that the prolonged inaction by the former president, coupled with public remarks suggesting some nominees were unfit for office, left them in a state of uncertainty and exposed them to public ridicule.
In affidavits filed before the court, the judges described the emotional and professional toll of the delay.
One of them, Lady Justice Lilian Gathoni Kimani, recounted how the nominees were subjected to speculation and mockery after the president claimed he had received adverse intelligence reports about some of them but declined to provide details.
She told the court that colleagues, friends and even family began questioning their integrity, with some mockingly referring to them as “Ali Baba and the forty thieves.”
The court held that such sweeping and unsubstantiated allegations, which were never backed by evidence either publicly or during the proceedings, gravely damaged the nominees’ dignity and professional standing.
Justice Mugambi further ruled that many of the petitioners had resigned from secure positions in private practice and academia in anticipation of assuming judicial office, only to be left in limbo for 21 months without written reasons for the delay.
The failure to provide reasons, the court ruled, violated their right to procedurally fair administrative action.
Mugambi said the president is constitutionally bound by recommendations of the JSC.
“The president has no mandate to review or decline to appoint persons recommended for judicial office,” ruled the court.
In awarding damages, the court granted each of the 41 petitioners Sh2.5 million, bringing the total compensation to Sh102.5 million.
The judge described the award as vindicatory, intended to affirm the importance of the violated constitutional rights rather than to punish the violator.
However, the court declined to award special damages claimed by some petitioners, ruling that the alleged financial losses had not been strictly proved.
The Attorney-General, representing the State, did not file a replying affidavit to contest the factual claims made by the petitioners.
A preliminary objection arguing that the matter had already been determined in earlier cases was dismissed, with the court holding that the present petition concerned specific and personal violations of rights.
In its final orders, the court declared that the delay in appointment violated the petitioners’ right to expeditious, lawful and procedurally fair administrative action, and that the public casting of unsubstantiated aspersions infringed on their inherent dignity.
It also awarded costs of the petition to the judges.
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