The High Court has awarded Sh 2.5 million to each of the judges whose appointment was delayed for 21 months after recommendation by the Judicial Service Commission (JSC), finding that their constitutional rights were violated.
Justice Lawrence Mugambi ruled that the State, through the President Uhuru Kenyatta’s refusal and failure to appoint the judges between August 13, 2019 and June 3, 2021, breached their rights under Articles 28 and 47 of the Constitution.
The petitioners had argued that despite being duly recommended by the JSC for appointment as judges of the Environment and Land Court and the Employment and Labour Relations Court, they were left in limbo for nearly two years without written reasons.
The court rejected a preliminary objection by the State which claimed the matter was res judicata and sub judice, holding that the petition raised distinct, individualized claims separate from earlier public interest cases.
On the merits, the court found that the prolonged delay without explanation violated the petitioners’ right to fair administrative action under Article 47 of the Constitution. Justice Mugambi held that keeping the nominees in uncertainty for 21 months, without written reasons, was unreasonable and unjustifiable.
The court also found that public statements suggesting some nominees were unfit for office, without providing particulars, injured their dignity. It held that the casting of unsubstantiated aspersions violated their right to inherent dignity under Article 28 of the Constitution.
However, the court declined to uphold claims of discrimination under Article 27, finding that the petitioners had not proved unequal treatment on prohibited grounds.
While the petitioners had sought general damages of KSh 15 million each, exemplary damages of KSh 5 million each, and substantial special damages running into tens of millions, the court took a vindicatory approach to constitutional compensation. It declined to award exemplary and special damages, stating that special damages must be strictly pleaded and proved, which had not been done.
The judge Issued a declaration that the delay violated the petitioners’ right to fair administrative action under Article 47.
The court also Issued a declaration that the unsubstantiated aspersions violated their right to dignity under Article 28.
He Awarded each petitioner Sh 2,500,000 as compensation.
