Kenyan vetting board clears Three High Court judges, declares another unfit for office

The board vetting Kenya’s judges has, in a majority decision, determined that a High Court judge is unfit to continue serving on the bench because of the way she handled a case pitting three insurance companies against thousands of claimants.

The Judges and Magistrates Vetting Board announced on Friday, August 3, it made the determination on Jeanne Wanjiku Gacheche in a 8-1 decision. It also announced that three other High Court judges should continue to serve on the bench. These include Judge Amraphael Mbogholi Masgha, who is the Principal Judge of the High Court, a position he was elected to by other High Court judges. Others who were cleared on Friday are Judges Jessie Wanjiku Lessit and Wanjiru Karanja.

In Gacheche’s case the Board concluded that she was not suitable to continue serving as a judge because she issued blanket orders in favor of the insurance companies over a period of two years without considering the impact of such orders. The Board said the orders, issued ex-parte, lasted for long stretches of time over the two-year period.

“The orders had a devastating effect on thousands of claimants and a large number of lawyers and eroded public confidence in the judicial process,” said the Board in a statement announcing its decision. “She has shown little capacity for introspection and acknowledgement of the seriousness of her indefensible judicial conduct in the insurance matters.”

The Board is clear, however, that in Gacheche’s case it found, “neither any suggestion of corruption on the part of the judge, nor any proof that she had compromised her integrity.”

Gacheche can now apply to the Board to review its decision. Whatever the outcome of that application, the Board’s decision is final and cannot be challenged in a court. This is a constitutional provision meant to guard the vetting process from unnecessary delays and give closure once it makes a decision.

The Board is a creation of Kenya’s nearly two-year old constitution. It was created in response to decades-long public outrage against the corruption, incompetence, and lethargy that has pervaded the judiciary. Its mandate is to review the work of all judges and magistrates who were appointed to office before August 27, 2010 when the current constitution took effect.

The president’s wide-ranging powers over the judiciary that existed under the old constitution have been removed. The Treasury’s control over the judiciary’s finances has also been curtailed. Whereas before the president appointed judges and members of the Judicial Service Commission, which is the judiciary’s supervisory body, without any check or reference to another arm of government, this is no longer the case. It is also the reason why the Judges and Magistrates Vetting Board’s mandate only extends to judges who were appointed before August 2010.

Friday’s announcement brings the number of judges up to nine who served at the High Court before August 2010 whom the Board has vetted and announced its determination on their suitability for office. Only three of those have so far been found not suitable to continue serving as judges. The Board has interviewed three other judges, but it is still to make a decision on their suitability because it was waiting for them to conclude a case on when Kenya’s upcoming election should be held. The three were apart of a five-person Court of Appeal bench that in a 4-1 decision upheld the March 4, 2013 date set by the Independent Electoral and Boundaries Commission. The Board is set to publish an interview schedule for the remaining 32 judges who were at the High Court before August 2010. Some of them currently serve on the Court of Appeal.

Earlier in the year, the Board had vetted nine judges who served on the Court of Appeal before August 2010. Under the old constitution, the Court of Appeal was Kenya’s highest court. Out of the nine individuals, dthe Board foun that four of them were unsuitable to continue serving as judges.