JSC sued over 'opaque' appointment of High Court boss

Three lawyers have sued the Judicial Service Commission (JSC) over appointment of magistrate Clarence Awuor Otieno as the new Registrar of the High Court.

Lawyers Omwanza Ombati, Robinson Kigen and Brian Ochieng' Saka claim that the last month's appointment of Ms Otieno was irregular and unlawful since she was not among the persons shortlisted by JSC for interviews during the recruitment process.

In the petition filed at the High Court in Milimani Nairobi, the lawyers claim that Ms Otieno was handpicked in an opaque process to fill the influential position.

The applicants publicly shortlisted for interviews were magistrates Ann Wanjiru, Pauline Wangari, Dennis Kipkirui, Fredrick Momanyi, Elizabeth Juma and Elizabeth Tanui.

"The petitioners are reasonably aggrieved with the appointment (of Ms Otieno), as it wouldn’t be expected that a person who had never been shortlisted would be the successful candidate," said the lawyers in the court papers.

Accusing the Commission of lack of transparency and accountability, the lawyers add that "the JSC's action reeks of impunity, corruption and a wanton defilement of the Constitution. It is not only discriminative but it is also a great disservice to candidates who invested their time and resources to apply for a position, got shortlisted, attended interviews".

The petitioners further argue that Ms Otieno having not been listed for interviews, it is questionable whether she had applied for the job or she was even interviewed.

"In view of the circumstance, the petitioners are entitled to draw an inference or conclude that Ms Otieno either never applied for the position, or that her candidacy was rejected by the Commission at the shortlisting stage. Either of the two inferences is damning to the JSC’s decision to appoint her," said the petitioners.

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According to them, shortlisting of candidates is an important step in the recruitment process, and the JSC having shortlisted six candidates, and omitted Ms Otieno from the shortlist, it was expected that the Appointee would have been chosen from the shortlist.

The lawyers also argue that in a previous case in court, JSC agreed that shortlisting of candidates plays a key role in sieving out non-compliant applications.

"The JSC's own Human Resource Manual states that only shortlisted candidates may be subjected to an interview. Moreover, Ms Otieno, not having been shortlisted and invited for an interview in the Commission’s communique, without any fresh and publicized recruitment process, could not possibly have been a candidate for appointment," they said.

The petition pleads that it was "unreasonable and irrational that JSC could call for applications for appointment, receive 24 applications, shortlist six candidates (from its own organization), interview them, then turn around and handpick somebody else, who was not shortlisted or called for the interview!"

They claim that the Commission, which is chaired by Chief Justice Martha Koome, violated national values and principles of governance as set out in Article 10 of the Constitution. They principles are the rule of law, equity, non-discrimination, good governance, integrity, transparency and accountability.

"JSC, in acting as it did, violated each and every value and principle highlighted above, to the detriment of not just the six applicant candidates, but also, the general public. The action to hand-pick a person, who was not shortlisted is not only capricious, inequitable, opaque and discriminative. It is contra the very Constitution the JSC Commissioners are sworn to uphold, defend and protect," they said.

Additionally, that JSC violated provisions of Public Service (Values and Principles) Act, 2015, which require public institutions to ensure that public officers are appointed and promoted on the basis of fair competition and merit.

"In so far as the JSC resorted to handpicking Ms Otieno from outside its own closed shortlist, the JSC violated the above provisions of the Public Service (Values and Principles) Act. In addition, the JSC was neither transparent, accountable or fair in its dispute action," the lawyers pleaded.

They also hold that though the Judicial Service Act and the Third Schedule of the said Act grant the Commission the discretion, ‘in the public interest’ to consider a ‘special procedure’ when making appointments, promotion, transfer, and secondment, the process should comply with national values and principles.

"A holistic reading of the Constitution and other relevant statute cannot arrive at an interpretation permitting the JSC to oust the national values and principles and the principles of public service or act as it did in the instant case," they argued.

Stating that they do not have any reservations on Ms Otieno’s competence and qualifications, the lawyers said to act as the JSC did "is to entrench cronyism, patronage, horse-trading and all other vices synonymous with pre-2010 judicial appointments in judicial service".

On the strength of their arguments, they want court to quash appointment of Ms Otieno and also declare that, in making judicial appointments, the JSC is bound to recruit competitively and based on merit. The petition is pending hearing.

Until her appointment, Ms Otieno was holding the position of the High Court Registrar in acting capacity from May 31, 2023 -the day the six shortlisted candidates were scheduled for interviews by JSC. The position was declared vacant in January 2023. 

Initially she was a Senior Principal Magistrate based in Ruiru law courts.

According to JSC, Ms Otieno is a long serving judicial officer having joined the Judiciary in 2008 as a Resident Magistrate and at the time of her promotion to the position of Registrar she was a Senior Principal Magistrate based at Ruiru law courts. She also serves in the Committee of Alternative Justice systems and the specialized Sexual and Gender Based Violence (SGBV) Courts.

Duties and responsibilities of the Registrar High Court include the day-to-day administration and management of the High Court and overseeing of support services in the court including the planning, development and the organization of staff.

Other duties are monitoring of administration and office procedures to uphold efficiency and quality of service; planning, preparation and implementation of the budget of the court and overseeing the procurement and disposal of assets.