What you need to know:
- In the new postings announced on June 17, 14 judges will be stationed in Nairobi, pointing to the possibility of some of them being part of the extra-ordinary bench that will determine the appeal concerning the BBI.
Chief Justice Martha Koome has reshuffled Court of Appeal judges, three weeks after President Uhuru Kenyatta appointed seven new judges to the bench.
In the new postings announced on June 17, 14 judges will be stationed in Nairobi, pointing to the possibility of some of them being part of the extra-ordinary bench that will determine the appeal concerning the Building Bridges Initiative (BBI) campaign to amend the constitution.
The appeal filed by various parties, including President Kenyatta and Orange Democratic Movement (ODM) party leader Raila Odinga, against a High Court judgment that nullified the Constitution of Kenya Amendment Bill (2020), will be heard for four days by a seven-judge bench from June 29 to July 2.
The bench is yet to be appointed. Nine of the judges posted to Nairobi are full time judges with no extra duties.
They are Justices Agnes Murgor, Fatuma Sichale, Jamila Mohammed, Sankale Ole Kantai, Msagha Mbogholi, Hellen Omondi and Dr Imaana Laibuta. Others are Justices Roselyne Nambuye and Wanjiru Karanja.
The other five judges posted to Nairobi have extra and exceptional duties.
They are Justice Daniel Musinga (president of the Court of Appeal), Justice Hannah Okwengu — who head the civil division — and Justice Asike Makhandia, who will head the criminal division.
Justice Mohammed Warsame, who is the representative of the Court of Appeal judges at the Judicial Service Commission, will also remain in Nairobi.
Also posted in Nairobi is Justice Kathurima M’Inoti as director of the Judiciary Training Institute. He also serves at the East Africa Court of Justice.
Work station matter
However, constitutional lawyer Peter Wanyama said the bench to hear the BBI case can be picked from outside the Nairobi station.
He explained that any appellate judge can hear the cases notwithstanding their station of work. In the changes made public yesterday, the Court of Appeal has resumed its permanent sittings in Kisumu and Mombasa.
The two stations together with Nyeri were closed in 2019 owing to a shortage of judges.
Justice Patrick Kiage will be the presiding judge in Kisumu in a bench that will comprise Justices Mumbi Ngugi and Francis Tuiyott.
Justice Gatembu Kairu will be the presiding judge in Mombasa. His bench comprise justices Pauline Nyamweya and Jesie Lesiit.
There is no permanent bench for the court station in Nyeri.
Justice Musinga did not constitute a bench to hear cases in Meru, Busia, Kisii, Malindi, Nakuru and Eldoret sub-registries, which were closed in 2019 over a shortage of judges.
The second highest court should have a maximum of 30 judges but currently has 20.
Appellate judges were first permanently stationed outside Nairobi in May 2013.
The Court of Appeal Transfer Policy stipulates that appellate judges are required to serve in one station for two years only from the date of such a transfer.
The policy also requires that, after completion of two years in a station outside Nairobi, a judge should be transferred to serve in Nairobi while waiting for the next rotation.
That should be to a station other than the one he or she served immediately before returning to Nairobi, unless the judge opts in writing to continue serving in another outside station.
The policy indicates that the justification for the rotation is that the Court of Appeal is not a trial court and no transitional period is necessary as there are hardly any partly heard appeals.
Rotation gives every judge an opportunity to serve in all the court stations and exposes them to a wide range of issues.