Search for new Chief Justice starts after office declared vacant

Acting Chief Justice Philomena Mwilu at the Supreme Court of Kenya building on January 11, 2021. PHOTO | EVANS HABIL | NMG

By SAM KIPLAGAT
More by this Author

Summary

• Acting Chief Justice Philomena Mwilu has declared the office vacant, setting the stage for interested jurists to apply for the job.

The Judicial Service Commission (JSC) has commenced the recruitment of the country’s next Chief Justice to succeed David Maraga who retired on January 12.

In a gazette notice published on January 18, acting CJ Philomena Mwilu declared the office vacant, setting the stage for interested jurists to apply for the job.

To qualify, an applicant must be an advocate of the High Court and have served as a judge of the High Court or the Court of Appeal for 15 years. Additionally, the candidate must have 15 years’ experience as a distinguished academic, judicial officer, legal practitioner, or such relevant experience in other relevant fields.

The new CJ, the third one since the promulgation of the Constitution in 2010, will earn a salary of between Sh900,000 and Sh1,327,888, according to the notice. In 2017, the Salaries and Remuneration Commission (SRC) capped the salary at Sh1.3 million with an entry package of Sh990,000 excluding allowances.

The Chief Justice is the head of the Judiciary, the President of the Supreme Court, the chairperson of the JSC, and the link between the Judiciary and other arms of government.

The notice said the interested candidates must have high moral character, integrity and impartiality as well as meet requirements of Chapter Six of the Constitution on Leadership and Integrity. 

The applicants have 21 days to apply.

Senior Counsel Philip Murgor, who has had a stint as a Director of Public Prosecutions, has expressed interest in the position. Others touted as potential candidates are Justice Mwilu, who is the deputy CJ, Court of Appeal President William Ouko, Attorney General Kihara Kariuki and his predecessor Prof Githu Muigai.

In 2016, Justice Maraga beat 13 other candidates to succeed Willy Mutunga, who retired a year earlier to allow the Judiciary to recruit his successor early enough.

“Following publication of the Notice, the search for a candidate, and the recruitment process and its attendant timelines, will be governed and conducted in accordance with all the relevant provisions of the Constitution and the law,” the JSC said in a statement after a meeting last Friday.

The JSC has 28 days to scrutinise the applicants.

The JSC had planned to kick start the process in October last year, six months to the retirement of Justice Maraga but the move was thwarted by the CJ and a section of the members of the commission, arguing that it was against the law.

Although Justice Maraga had agreed with the initial plans, he cancelled the meeting a few hours before the commission members met.

The law does not provide for the advance recruitment of the Chief Justice until the mandate of the officeholder expires. Section 30 of the Judicial Service Act read together with the first schedule the position of the office of the CJ cannot be advertised until the position falls vacant.

The law only anticipates a vacancy when the holder resigns, dies, retires or attains the age of 70 or is removed as prescribed by law.

The JSC Act provides for the transparent recruitment of judges including the Chief Justice. The JSC shall constitute a selection panel consisting of at least five members who will shortlist persons for nomination and recommend for appointment by the President with the approval of the National Assembly.