Not as­sertive enough

Nairobi Law Monthly - - Cover Story -

Ex­ec­u­tive con­tin­ues to hold the sword and the Leg­is­la­ture the bread, but the CJ could be bolder and play less of ‘good cop'

ap­point­ments, the gen­der ra­tion be­tween men and women has in­creased to within lev­els of 45-55 per cent. The em­ploy­ment of dis­abled per­sons has also risen even if only with a pal­try 1.1 pc. The CJ has also made at­tempts at has­ten­ing the de­ter­mi­na­tion of traf­fic of­fences by in­tro­duc­ing mo­bile courts along ma­jor high­ways. This par­tic­u­lar ven­ture how­ever turned out to have been a sig­nif­i­cant mis­cal­cu­la­tion on his part as for, far from serv­ing their in­tended pur­pose, they turned out to be dens of cor­rup­tion.

Not one to give up, how­ever, the CJ in June 2015 in­tro­duced new guide­lines aimed at guid­ing courts across the coun­try in han­dling traf­fic cases. As well, in what has wrongly been de­scribed by many as be­ing tan­ta­mount to ju­di­cial ac­tivism, the Chief Jus­tice has over and again sought to stand up against the Ex­ec­u­tive and the Leg­is­la­ture for what he con­sid­ers to be un­war­ranted in­tru­sion from those quar­ters.

While he is cel­e­brated for th­ese achieve­ments, some have sought to cas­ti­gate him for among other is­sues, his fail­ure to reign in on run­away cor­rup­tion in the Ju­di­ciary. The big­gest pro­po­nents of this ar­gu­ment have so far been the Ni­cholas Gumbo-led Par­lia­men­tary Ac­counts Com­mit­tee. Cu­ri­ously, while point­ing out his fail­ures, the com­mit­tee failed to find him di­rectly re­spon­si­ble for any of the acts of cor­rup­tion the Ju­di­ciary has been ac­cused of. Mean­while, the CJ'S pop­u­lar­ity con­tin­ues to soar, if opin­ion polls are any­thing to go by.

A group of prac­ti­tion­ers from the coast has also come out to con­demn his ac­tion of set­ting the Court of Ap­peal head­quar­ters in Malindi in­stead of Mom­basa where it “ideally ought to have been” when “le­gal traf­fic” is con­sid­ered. This group has fur­ther pointed out iso­lated ad­min­is­tra­tive fail­ures such as the re­place­ment of Jus­tice Richard Mwongo which never came to fruition; the clam­our for the im­me­di­ate re­ver­sal of the tem­po­rary de­ploy­ment of Jus­tice Fran­cis Tuiyot to the Bu­sia High Court, which the CJ never took heed of, to­gether with a host of trans­fers they con­sid­ered un­war­ranted.

His fail­ure to ad­e­quately in­form and thus pre­pare the Govern­ment for the loom­ing ju­di­cial cri­sis in which close to 60 judges are set for re­tire­ment in an elec­tion year has also been pointed put as a sig­nifi-

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