Three lawyers have moved to court to quash the Judicial Service Commission's (JSC) decision to appoint magistrate Clarence Awuor Otieno as the new Registrar of the High Court.
Lawyers Omwanza Ombati, Robinson Kigen and Brian Ochieng' Saka in their petition filed at the High Court argued that the appointment of Otieno was irregular and unlawful since she was not among the persons shortlisted by JSC for interviews during the recruitment process.
Lawyers statement
"The petitioners are reasonably aggrieved with the appointment (of Otieno), as it wouldn’t be expected that a person who had never been shortlisted would be the successful candidate," the three lawyers state in the court papers.
According to the lawyers, Otieno was handpicked in an opaque process.
JSC on Tuesday, July 25, appointed Otieno as the new registrar, but her name was not among the shortlisted candidates in a May 22 statement by the commission.
Those publicly shortlisted for interviews held on May 31 were magistrates Ann Wanjiru, Pauline Wangari, Dennis Kipkirui, Fredrick Momanyi, Elizabeth Juma and Elizabeth Tanui.
The petitioners further argue that Otieno having not been listed for interviews, it is questionable whether she had applied for the job or she was even interviewed.
While faulting the commission led by Chief Justice Martha Koome for lack of transparency and accountability, the petitioners 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, and attended interviews."
"In view of the circumstance, the petitioners are entitled to draw an inference or conclude that 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," the lawyers say.
Further, the trio claim that the Koome-led Commission violated national values and principles of governance as set out in Article 10 of the Constitution. The 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.
Importance of shortlisting
According to the petitioners, shortlisting of candidates is an important step in the recruitment process, and the JSC having shortlisted six candidates, and omitted Otieno from the shortlist, it was expected that the Appointee would have been chosen from the shortlist.
"In so far as the JSC resorted to handpicking 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 state.
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.
The lawyers now want the court to make a finding that JSC violated various sections of the constitution and quash the appointment of Otieno. They also want the court to also declare that, in making judicial appointments, the JSC is bound to recruit competitively and based on merit.
According to JSC, Otieno joined the Judiciary as a Resident Magistrate in 2008, she rose through the ranks serving in the positions of Senior Resident Magistrate, Principal Magistrate and Senior Principal Magistrate. At the time of her promotion to the position of Registrar Otieno was a Senior Principal Magistrate based at Ruiru law courts.
Prior to joining the Judiciary, Otieno worked as an Advocate at Ocharo & Company Advocates between 2004-2007, following her admission to the bar on December 16, 2004.
