Petitioner takes on JSC over Chief Kadhi nominees
Petitioner Jamal Deriwo Omari at Eldoret Law Courts on June 2, 2023.
A Muslim youth leader in Eldoret has gone to the High Court to challenge the recent shortlisting of five candidates for the position of Chief Kadhi.
Mr Jamal Deriwo Omari has challenged the Judicial Service Commission's (JSC) nomination of five candidates to fill the vacancy, saying the process used to shortlist the five was irregular and unconstitutional.
In the petition filed at the High Court in Eldoret under certificate of urgency, Mr Omari argues that the nomination process was not competent as it violated Islamic law and the Constitution of Kenya 2010.
He says the shortlisting was partial and did not reflect the regional balance of Muslim communities in Kenya's 47 counties.
"The process of shortlisting the Chief Kadhi must not contravene Islamic law and the Constitution of Kenya which mandates the appointment of the Chief Kadhi," Mr Omari said.
The petitioner further took issue with the advertisement of the position, claiming that it violated the Public Service Code of Regulations on Human Resource Policies and Procedures Manual of 2016.
He states that the appointment of the Chief Kadhi must take into account competent professionalism in conjunction with the law of the land.
On 22 May, the JSC shortlisted Sukyan Hassan Omar, Idris Nyamagosa Nyaboga, Athman Abdulhalim Hussein, Kutwaa Mohamed Abdalla and Omari Hassan Kinyua for the position, which was advertised on 14 April.
According to the commission, 24 applications were received by the close of the advertisement on April 28 and five candidates were shortlisted.
The court is expected to make a ruling on the matter this week.
The Chief Kadhi is recruited under the revised policy of the Judicial Service Commission scheme of service, a position that is now at par with that of a chief magistrate.
The permanent and pensionable position also comes with allowances such as housing and commuting allowance, medical insurance and leave.
To qualify for the position, one must have a degree in Islamic law or its equivalent, profess the Islamic faith, have no complaints against them with the Complaints Commission or employers, and have no integrity issues.
This is not the first time that the appointment of the Chief Kadhi has been questioned.
In 2020, the national chairman of the Kenya Muslims National Advisory Council, Sheikh Juma Ngao, warned against irregular recruitment of the incumbent, insisting that the Chief Kadhi must be a competitive person.
Mr Ngao reiterated the need for fair selection, noting that Muslims from all the 47 counties who qualify should be given equal opportunity. He lamented that the seat had long been the preserve of the coastal region.
Critics of previous appointments have always urged the JSC to consult widely with all Muslim groups to end the tradition of selecting the incumbent from one region. They say the JSC must instead give a fair chance to all Muslims across the country.
The Kadhi Courts are established under Article 170 of the Constitution and their jurisdiction is limited to the determination of Muslim law relating to personal status, marriage, divorce or inheritance in which all parties profess the Islamic faith and submit to the jurisdiction of the court.
