A board vetting Kenya’s judges has narrowly declared two pioneering women lawyers suitable to continue serving on the bench while reluctantly finding another unsuitable to continue in office because she is frail.

The Judges and Magistrates Vetting Board announced on Friday it also found another judge fit for his office and accepted to review the cases of two judges it had previously declared unsuitable to serve on the bench. It, however, upheld its decision to declare another judge unsuitable for office after she applied for her case to be reviewed.

The Board narrowly declared Court of Appeal judges Martha Karambu Koome and Kalpana Hasmukhrai Rawal fit to serve on the bench. It did not find that Koome and Rawal had been involved in any corrupt acts nor did it them inefficient or inconsiderate. However, the Board was split over the judges’ application of the law in certain matters and their record-keeping skills. In Kenyan courts, judges’ handwritten notes become the record of the proceedings because there are no stenographers.

The Board heard complaints against Koome that showed she had, among other things, not kept accurate records of court proceedings and leaned one way in gender-related cases. The nine member Board was split with four members in favor of Koome continuing in office and four against. The ninth member recused herself from being involved in making a determination on Koome’s suitability as a judge. Board Chairman Sharad Rao did not give any reason for the board member recusing herself at the time the decision was issued.

“In the circumstances, there being no clear majority in favor of either, the Board agreed that the judge was entitled to continue to serve,” Rao said as he read the Board’s decision.

“If there was concern that she [Koome] was unduly intent on combating patriarchy, this was a matter to be discussed by the judiciary as a whole,” Rao had stated earlier referring to some of the complaints against her.

“And if in the meantime, she erred, she did so in favor of what she regarded as promoting human rights. In particular, she was to be commended for supporting the principle that the interests of the child should be paramount,” Rao said.

Before becoming a judge in 2003, Koome distinguished herself as one of the few lawyers willing to take on cases of political detainees in the 1990s. She was also a leading women’s and children’s rights lawyer and carried on that interest into the judiciary.

In the case of Rawal the vote was five in favor of her continuing in office and four against.

“The majority opinion however, was that her proven good qualities, manifested over a long period of time outweighed the deficiencies,” Rao said of Rawal, who in 1975 became the first woman to set up a private practice in Kenya. She joined the judiciary in 1999.

The Board felt Rawal “was honourable and hard-working, with a genuine commitment to doing justice; and that amongst all the judges interviewed, she had been one of the few who had acknowledged that corruption had been rampant in the courts, mentioning that when in private practice she had given up criminal law because of its pervasiveness.”

As for High Court Judge David Kenani Maraga, the Board unanimously decided to find him suitable to continue serving the judiciary.

Another of Kenya’s most courageous lawyers, Joyce Nuku Khaminwa, however, was found unsuitable to continue in office. The Board decided Khaminwa was too frail because its interviews seemed to tax Khaminwa, who had been ill for all of 2011 and had returned to work this year.

“Her demeanor during the interview indicated that she was a bit out of touch. It appeared that the judge had not fully recovered from her illness and continues to be held back by its aftermath,” Rao said. “The Board’s conclusion, which it arrived at after much deliberation and with considerable regret, is that after having given illustrious service for many years, the time has come for the judge to call it a day.”

Before joining the judiciary in 1998, Khaminwa had been in private practice for more than 20 years. She was the first African woman in Kenya to set up a private practice. During her practice she was one of the few lawyers who took the cases of political detainees in the 1980s and 1990s.

The Board also reviewed the cases of three judges it had previously found unsuitable to hold the office of judge. It accepted to review the cases of Supreme Court Judge Mohamed Ibrahim and Court of Appeal Judge Roselyn Naliaka Nambuye. In the case of the third judge, Jeanne Wanjiku Gacheche, however, the board decided to dismiss her request for review.

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.

Last week, the Board began interviewing 28 High Court judges who are left to be vetted. Their interviews are scheduled to conclude at the end of next month.

More information about the Judges and Magistrates Vetting Board is here.