Judges on the other side of the Bench
Never mess with High Court judge Nicholas Ombija. He is feisty and excitable. He is opinionated and captious. Most importantly, he is reflexively litigious. Perhaps it has happened many times before – judges suing the shirts off unsuspecting wananchi, but Ombija is the man who brought it to the fore and centre of public attention. One day at the supermarket, his card was returned with remarks that suggested that Ombija was not in funds. He took umbrage and on 19th September, 2008, he sued KCB for defamation. KCB’s defence was struck out by the High Court, allowing Ombija to proceed ex parte. On 25th September, 2009, judgement was entered, awarding Ombija KES 2.5 million in damages, as well as costs and interest.
In a time when cases took 4 years on average from institution to judgment, Ombija’s litigation was nothing short of instant justice. It took 10 months. Recently, the Chief Justice launched an initiative to expedite the determination of cases which have stayed in the courts too long. Some are decades old, with the oldest reported to be 51 years old!
Barely months after his victory, Ombija was back in the High Court. This time, he had sued then Minister for Planning, Wycliffe Oparanya, now Kakamega county governor.Oparanya had sold Ombija property somewhere in Nairobi’s suburbs, but removed certain fixtures as he vacated the house. Ombija was reported to have been livid about the removal of lavatory covers and toilet floor rugs, and deemed it egregious enough to warrant action. So he sued Oparanya in the High Court.
One could say that Ombija is a maverick pioneer of sorts. He breached a taboo forbidding arbiters of disputes from wantonly descending into the arena of litigation as parties. After his cases, there has been a deluge of judicial litigation not witnessed before in Kenya’s judicial history. Form the humblest magistrate to the entire Supreme Court, no part of our Judiciary has proved immune to the siren call of litigation.
Age of Retirement and Succession: For whom the bells toll
This year the entire Supreme Court filed High Court Civil Case number 233 of 2015 against the Star newspaper for defamation. Mr. Justice Tunoi, who recently turned 70, has famously gone to court to stop his retirement until he attains the age of 74. He could be said to be the champion of age-of-retirement actions. Anne Amadi, the Judiciary’s Chief Registrar, is presently fending off bad Press over the apparently forceful removal of judge Kalpana Rawal on age-of-retirement grounds. As matters stand, it is clear that “see you in court” is quite on the cards.
At the Court of Appeal, Judge Onyancha , who curiously vaulted integrity misgivings, is fighting the age-of-retirement battle. Retirement is not the only contentious issue. The Judges and Magistrates Vetting Board rattled a viper’s nest when it recommended the removal of several judges. As a result, many judges are currently slugging it out with the Board in court. Here is a glimpse of the actions underway in the courts.
1. Nairobi High Court Petition number 14 of 2013:Riaga Omolo, Samuel Bosire and Joseph Nyamu versus JMVB
2. Petition number 470 of 2014: Grace Nzioka versus JMVB and 2 others
3. Nairobi High Court Civil case number 547 of 2008: Nicholas Ombija versus KCB Limited
4. Industrial Court Petition Number 39 of 2013 :Gladys Boss Shollei versus JSC
5. High court Petition number 337 of 2013: Joseph Mbalu mutava versus the Attorney General
6. Nairobi High Court Petition Number 518 of 2013: the Judicial Service Commission versus the Speaker of the National Assembly
7. Justice Philip Tunoi, David Onyancha versus the Judicial Service Commission
8. High Court Judicial Review cause number 295 of 2012: Lady Justice Jeanne Gacheche versus JMVB
9. Nairobi high Court Constitutional Petition number 433 of 2012: Riaga Omollo versus JMVB
10. Nairobi High Court Constitutional Petition number 438 of 2012: Joseph Nyamu versus JMVB, AG and JSC
In this unseemly spectacle, Supreme Court, Court of Appeal and High court judges appear before their colleagues to vindicate their rights. Often, the presiding judges have their own issues and are in office by dint of temporary orders. Obviously, a collusive dynamic is inevitable where the presiding judges sympathise with their colleagues. The erratic behavior of JSC has seen it rattle judges through explosive letters from the Registrar. The mode of communication suggests a total breakdown of communication and absence of collegiality in the Judiciary. It also shows how intense and vicious the Mutunga-Rawal Succession struggle is. With the Ombija precedent, it will be difficult to tell when collegial sympathy has prevailed at the expense of justice. The situation is also comical because lawyers are used to seeing the petitioners and plaintiffs as judges, not parties to suits. Thus for petition number 14 of 2013 , the petitioners look like a three-judge bench of the Court of appeal: Omolo, Bosire and Nyamu, JJA.
Symptomatic of Failures
This fiasco is symptomatic of many shortcomings already in the public domain. The first is the integrity deficits in the constitution of the JMVB and its findings. This has given rise to a lot of litigation. The JMVB has been accused of pursuing a vested agenda instead of impartially vetting judges according to objective parameters. Similary, the JSC has its issues. It has been said that there was a scheme to populate the Judiciary with vulnerable individuals wholly beholden to certain JSC members who are also practicing lawyers. In particular, the Mutava case is going to be of interest because of various spectacular curiosities it entails.
But the main blame must rest with the Judiciary. As an institution, it needs to develop and entrench a culture of effective in-house communication and dispute resolution. Each case lodged by a judge is an indictment of the leadership of the Judiciary. It is also an appalling testimony to the shambles that the House of Justice is gradually becoming.