Judges sue AG, Treasury PS, Solicitor General over failure to pay them Sh120m

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 Six Judges have gone after Treasury Principal Secretary Chris Kiptoo, Attorney General Dorcas Oduor and Solicitor General Shadrack Mose, citing defiance of court orders.

Court of Appeal Judges Aggrey Muchelule, Weldon Korir, Joel Ngugi and George Odunga, alongside their Environment and Land Court Judges Evans Makori and Judy Omange argue that the trio have declined to pay Sh124 million award as had been directed by Justice Chacha Mwita for close to two years now.

Justice Mwita awarded the six judges Sh20 million each in addition to a global sum Sh4 million as the cost of the case.

However, in their new case before Justice John Chigiti, the six judges claim that the AG, the SG, and the PS have allegedly continuously ignored court orders, despite being aware.

At the same time, their lawyer Elisha Ongoya said that despite the judges notifying the government officials of their intention to sue in December last year, they were allegedly unmoved.

He argued that his clients were forced to seek orders to force the AG, SG and PS to honour court orders as the law shields the government assets from auction.

“The respondents have failed to discharge a clear constitutional and statutory duty to satisfy a valid court decree. The respondents’ failure to act amounts to unreasonable and unlawful administrative action contrary to Article 47 and section 4 of the Fair Administrative Action Act,” argued Ongoya.

In the case, Judges argued that they were victims of impunity as there was no evidence produced either in public or before the Judicial Service Commission (JSC) that their character and conduct was unimpeachable, just as that of Caesar’s wife.

They further argued that they suffered public humiliation despite serving the country as High Court Judges, High Court registrar and magistrates.

“The President of the Republic of Kenya at the time, purporting to cite undisclosed intelligence reports, and in a move that further injured the Petitioners’ standing in the estimation of ordinary, just and right-thinking members of society, made public pronouncements portraying the Petitioners as persons of questionable character and not fit to hold the offices of judges in the Republic of Kenya,” the six told the court.

Ongoya told the court that to date, no one in government has in repentance, approached his clients for an apology or a remedy for the time they spent in the dark after former President  Uhuru stuck to his guns that he would not appoint them.

JSC recommended Justices Muchelule, Korir, Ngugi, Odunga, Omange and Makori to be Court of Appeal on July 22, 2019 and on August 13, 2019.

However, a standoff ensued between former President and then Chief Justice David Maraga over appointment. 

Uhuru initially declined to appoint the entire list of 41 Judges.

 He then softened his stand and appointed the first group of 34 Judges in 2021.While defending his stand, Uhuru had stated that he turned down their nominations "for failing to meet the required threshold". 

Despite several court orders, a case to have him impeached and another to bypass him, he still did not yield until current Chief Justice Martha Koome took over the Judiciary’s helm. 

Uhuru appointed the second group but left out the six Judges. 

Muchelule group was appointed by President Ruto on September 13, 2022 and were sworn into office the following day. 

“The petitioners contend that the refusal, failure and or neglect of the president to appoint them as judges in the respective courts in the face of clear provisions of the Constitution, a clear and unambiguous recommendation of a Constitutional Commission and clear decisions of the High Court was a manifestation of unbridled impunity,” said Ongoya.

Justice Muchelule swore an affidavit on behalf of the six. He stated that the President’s refusal to appoint him and his colleagues, in addition to public utterances, painted them as persons who did not deserve to hold public office.

“Despite the clear order of the court, the President persisted in his failure or neglect in appointing us as Judges and continued making public pronouncements that were unfit to hold the office of Judges of the respective superior courts,” stated Justice Muchelule.