The search for Kenya’s new chief justice has reached a crucial point: an intensive fortnight of candidate interviews by the judicial service commission. But the battle over the future of the jurist leading the search, Kenya’s acting chief justice, Philomena Mwilu, is continuing in parallel. Most recently, the high court judge set to hear a petition that Justice Mwilu be removed as acting CJ and deputy CJ among other positions, because of graft allegations against her, has announced he will recuse himself. In his written decision on the question, the high court judge, Patrick Otieno, explained his recusal: given the line taken by Justice Mwilu’s counsel in the matter, he would be seen to have been ‘intimidated’ if he found for one side, or to have been ‘propelled by vengeance’ if he found for the other, he said. The judge further castigated counsel for the DCJ for making ‘preposterous accusations’ against him and for the ‘intensity of insolence’ he experienced from counsel in the case.
The question of when judges should recuse themselves from hearing certain cases continues to be one of the most hotly-debated judicial issues in the region. The latest decision by Patrick Otieno, a member of Kenya’s high court bench, will add fuel to these flames. The judge has recused himself from hearing a petition seeking orders barring the second most senior jurist in the country from continuing in office,
Judge Otieno first issued orders effectively removing deputy chief justice Philomena Mwilu from office two months ago, in response to the petition. Just days later he gave Judge Mwilu a temporary reprieve, issuing stay orders pending full argument of the matter.
But when the case came back to court, it did not proceed as planned. In his decision, issued after the hearing, the judge explained what had happened and why it had led to his decision to recuse himself from further hearings in the matter.
The case was scheduled to begin at 9am, but the physical court files had not been delivered to the registrar by the courier. After a two-hour adjournment, the file had still not been received.
Counsel for the deputy chief justice, Nelson Havi, then addressed the court.
Judge Otieno said later that Havi ‘took the position that my conduct in the matter amounts to misbehaviour which he can no longer entertain as the President of the Law Society of Kenya.’ Among other things, he said that the judge ‘was bound’ to hear the parties and that ‘absence of the file is an excuse not expected of a judge’.
The judge noted that Havi said he would take up the matter with the judicial service commission, and that the Chief Justice had given directions in July 2020 saying that a judge should hear parties wherever he or she sat. Further, he had said that the absence of a physical court file is ‘no bar to a hearing because as a judge I should ensure that I have a digital file to work upon.’
‘Intensity of insolence’
‘I must today confess that the intensity of insolence I have received from counsel, in particular Mr Havi, while flashing his position as the President of the Law Society of Kenya, in both social media and before me in court, has demonstrated wholesome disrespect to me as a person and [to] the court I preside over.’
Judge Otieno said he wanted to remind Havi that judges were human beings and Kenyan citizens, and that they ‘enjoy rights and freedoms like all citizens and must not be treated like serfs in medieval Europe’.
Counsel had a duty, as officers of the court, regardless of age or seniority, to ‘exercise sobriety, and show courtesy and decorum in both deeds and words, to the court. He criticised Havi as president of the law society for ‘social media attacks on the judiciary and its officer’ and questioned what a new member of the bar would learn from ‘the current leadership’ of the society about professional etiquette and decorum.
The judge said he had sworn by the Bible when he took his judicial oath and he would be guided by that oath and continue to perform his duty to the public without being influenced by ‘intimidation and arm-twisting’.
Each time the case was called he had asked the parties if any had ‘misgivings’ about his continuing. No-one raised any problems; however, he said, ‘I think not all have been honest and candid when they have urged me to go on,’ and he now determined that Havi and his team ‘have no faith in me handling this matter’.
Should he have taken charge of the delivery van, he asked, or cut into his recess to go to court to pull the file ‘to assuage Mr Havi’s feelings’?
‘As preposterous as the accusation may be, my interest in the matter remains the dispensation of justice to the parties’. Faced with all the accusations levelled at him, even though they were baseless, ‘and to avoid any semblance of perceived bias that might be read into my decision, I find it in the wider interests of justice that the matter be handled by another judge.’
‘(W)ith those accusations on record, if I were to find for the party that Mr Havi appears for, the perception would be that I have been intimidated, while if I were to find against them, it could be perceived that I have been propelled by vengeance. In both scenarios, I would have failed the test of perceived bias.’
Until another judge was appointed to hear the matter, the stay order allowing the DCJ to continue in her position, was to be maintained, he said. In theory that means the DCJ will continue to lead the search for the country’s next chief justice. In practice, however, it could be even more complicated: one of the 10 candidates shortlisted to be interviewed by the JSC for the CJ’s position, Philip Murgor, has written to the commission saying that the DCJ should recuse herself from the interviewing panel, to ‘preserve the integrity of the process’.
- ‘A matter of justice’, Legalbrief, 13 April 2021