How the judges score

Justice Maraga was appointed to the Supreme Court Bench in 2016. He was viewed as a “safe pair of hands” after an “activist” Willy Mutunga, who had introduced radical changes to the Judiciary much to the chagrin of the Executive. His judicial philosophy could not be discerned easily from his past judgments but on first instance, began by a dress down of judges in Naivasha in 2016 for “issuing injunctions on the Executive” thus forestalling government projects and. This, and the reintroduction of colonial-era robes, put off most. 

He has, however, grown into his role as the President of the Judiciary, cementing the independence of the institution through some landmark judgments such as that in the 2017 presidential election petition, and his stern reply to the Presidency upon its verbal threat to the Court after the election was annulled. His leaning on transformative adjudication has further been extolled in his dissenting opinions in the Garissa Gubernatorial Petition – a controversial judgment which put the Supreme Court on the spotlight. This has cemented his role in determining constitutional petitions arising from the Judiciary Committee on Elections (JCE). 

His insistence on fidelity to the law and integrity to the Constitution is commendable, probing complaints raised against judicial officers and recommending disciplinary action, including on his colleagues in the Bench, such as Justice Jackton Ojwang and suspension of Magistrate Brian Khaemba. His experience as chairman of the Tribunal appointed by the President to investigate the conduct of Judge Mutava of the High Court of Kenya over corruption allegations spells good tidings for the anti-corruption crusade.

DCJ Philomena Mwilu

Justice Mwilu has had a quiet jurisprudential stay at the Supreme Court, save for the 2017 presidential election petition where she voted to annul the election. While she passes as good and sober judge, she has not authored a landmark decision that can set apart her inclination on jurisprudence.

Justice Mwilu has recently been dogged by controversy after the institution of criminal charges against her by the DPP over alleged tax evasion.

Justice Jackton Ojwang

Justice Ojwang is part of the inaugural Supreme Court Bench. He is an academic of note, serving as a lecturer and dean at the University of Nairobi before joining the Judiciary in 2003. But his starry academic record has failed to shine or reflect in his judicial decisions; he is often on the majority end of popular judicial decisions that have been criticised as falling below the par for a man of his supposed repute. 

In 2019, the Judicial Service Commission received a petition that Justice Ojwang had engaged in gross misconduct by failing to disclose his close relations with Migori County Governor Okoth Obado when he handled a case in which the governor was involved. It was also alleged that the Governor had caused a road leading to the Judge’s home to be tarmacked as a reward. He declined summons to appear before the Commission to explain his position, forcing a jilted Commission to recommend that the President institutes a Tribunal to investigate his conduct. That his tenure at the apex court has been mired in controversy, right from the hearing on Justice Philip Tunoi’s retirement, his consequent judicial activism and most recently corruption allegations, is telling about his character and role as a judge in the protection of the constitution. He scores dismally.

Justice Smokin Wanjala

Justice Wanjala has a wealth of experience from academia, having taught at the University of Nairobi for 20 years. Despite initial confidence in his wit and independence, he has failed to get off the blocks in his career at the apex court. A land law expert who authored the Ndung’u Land Commission Report, his lukewarm advisory opinion in the Matter of the National Land Commission against the Ministry of Land did not speak well to his record. Further, his majority opinion in the Wajir Gubernatorial Election Petition cast a dent on his reputation as, and the majority bench, failed to appreciate very mundane and critical aspects of election process; it was a reminder of his decision to uphold the evidently flawed 2013 presidential election. It will be important to note that he was a key contender for Chief Justice during the last interviews and could well be up for selection when the post falls vacant again.

Justice Mohammed Ibrahim

He was appointed to the inaugural Supreme Court in 2011, after a stint as High Court Judge since 2003. He has come out as conservative, keen on the promotion of human rights through constitutionalism, as evidence in the case of two Iranians nationals, and his decision while judge at the High Court in Mombasa where he held that the state had no powers to charging pirates arrested beyond its territorial waters. He also wrote a lone dissenting opinion in the Jasbir Sigh Rai Case, insisting the Court should depart from its earlier decision. He was part of the bench that annulled the 2013 Presidential election petition which has been criticised as reckless. His self-preserving decision in the retirement age case by Justice Kalpana Rawal will serve as an eternal blot to his career.

Justice Njoki Ndung’u

Coming from a political environment where she authored key Bills on sexual violence and gender equality, Justice Ndung’u was expected to inject judicial activism in the key with a transformative view of addressing injustices. However in her tenure at the apex court, Justice Njoki Ndung’u has emerged as the constant dissenting voice of the Supreme Court bench, especially from her voluminous dissent in the 2017 Presidential Election Petition. 

Her other notable dissents include the Speaker of the Senate case and the Tunoi and Rawal retirement cases. Philosophically, she has not infused any revolutionary jurisprudence since her ascension to the bench contrary to the expectation of many. Her stint has been mired with bribery allegations following complaints lodged at the JSC for her removal, which were later dismissed.

Justice Isaac Lenaola

Justice Lenaola has a record of bold judgments, right from the High Court, among them his judgment while at the East African Court of Justice which barred the Government of Tanzania from constructing a road through the Serengeti National Park. He further ruled against the state in awarding Kenneth Matiba Sh504 million shillings as an indictment against his torture by the Moi Regime. He quashed the outcome of the IPOA recruitment process in 2014 and made orders for the recruitment to be done afresh thus, in favour the values of good governance. His decision that the CDF contravened constitutional principles and safeguarding the role of Salaries and Remuneration Commission in determining the salaries of state officers set him apart as a transformative judge keen on correcting the dented legacy left behind by Justice Tunoi. So far, he has lived up to his billing, continuing with his string of bold and transformative judgments through his dissents in the Garissa Gubernatorial Appeal and  2017 Presidential election Petition. He is a breath of fresh air at the Bench.