Judicial Service Commission (Kenya)

Under Article Article 171(1) of the Constitution of Kenya, the Judicial Service Commission consists of the following 11 members:

• The Chief Justice, who shall be the chairperson of the Commission;
• One Supreme Court judge elected by the judges of the Supreme Court;
• One Court of Appeal judge elected by the judges of the Court of Appeal;
• One High Court judge and one magistrate, one a woman and one a man, elected by the members of the association of judges and magistrates;
• The Attorney-General;
• Two advocates, one a woman and one a man, each of whom has at least fifteen years’ experience, elected by the members of the statutory body responsible for the professional regulation of advocates;
• One person nominated by the Public Service Commission;
• One woman and one man to represent the public, not being lawyers, appointed by the President with the approval of the National Assembly;
• The Chief Registrar of the Judiciary who is the Secretary to the JSC.

The current membership of the JSC is as follows:[3]

• Dr. Mercy Mwara Deche, Advocate of the High Court of Kenya - Elected by, and representing the Law Society of Kenya, elected Vice Chair of the Commission, currently the Acting Chair of the Commission
• Justice Philomena Mwilu, Deputy Chief Justice, Judge of the Supreme Court of Kenya - Elected by, and representing Judges of the Supreme Court
• Justice Mohamed Warsame, Judge Court of Appeal of Kenya - Elected by, and representing Judges of the Court of Appeal
• Justice David Majanja, Judge of the High Court of Kenya - Elected by, and representing Judges of the High Court
• Justice Rtd. Paul Kihara Kariuki, Attorney General of the Republic of Kenya - Ex Officio
• Mr. Patrick Gichohi - Representing Public Service Commission
• Hon. Evalyne Olwande, Chief Magistrate - Elected by, and representing Magistrates
• Mr. Macharia Njeru, Advocate of the High Court of Kenya - Elected by, and representing the Law Society of Kenya
• Mr. Felix Kiptarus - Nominated by the President, representing members of the public
• Prof. Olive Mugenda - Nominated by the President, representing members of the public
• Ms. Anne Amadi, Chief Registrar of the Judiciary, Kenya - Secretary to the Commission

• Justice David Maraga, Retired Chief Justice / President of the Supreme Court of Kenya, served as Chair of the Commission between 2016 and January 2021
• Justice Willy Mutunga, Retired Chief Justice / President of the Supreme Court of Kenya, served as Chair of the Commission between 2011 and 2016
• Justice Smokin Wanjala - served as representative of Supreme Court Judges
• Justice Isaac Lenaola, currently Associate Justice of the Supreme Court, served in the JSC from 2010 - 2013 as the representative of High Court Judges
• Justice Aggrey Muchelule - served as representative of High Court Judges
• Prof. Githu Muigai - served during his tenure as Attorney General
• Hon. Emily Ominde - served from 2010 - 2020 as the representative of Magistrates
• Florence Mwangangi, Advocate of the High Court of Kenya, served as representative of the Law Society of Kenya
• Prof. Tom Ojienda, Senior Counsel, served as representative of the Law Society of Kenya
• Prof. Margaret Kobia, PhD, Commissioner, served as representative of the Public Service Commission
• Kipng’etich arap Korir Bett - served as presidential nominee

The first high profile actions carried out by the newly appointed JSC were public interviews for the Chief Justice and Deputy Chief Justice positions in May 2011. The Commission nominated lawyers Willy Munyoki Mutunga and Nancy Baraza for the positions of Kenya's Chief Justice and Deputy Chief Justice respectively.[4] The names were forwarded to President Mwai Kibaki, who then submitted them to Parliament after consultation with the Prime Minister Raila Odinga[5] where they were approved.

The Judicial Service Commission, interviewed 25 applicants and in June 2011 nominated 5 Justices to the Supreme Court of Kenya.

In January 2012, the Judicial Service Commission formed a sub-committee to investigate reports[6] that Deputy Chief Justice Nancy Baraza assaulted a security guard at the Village Market shopping mall on 31 December 2011.[7] The JSC subsequently recommended her suspension to President Mwai Kibaki and requested the President to appoint a tribunal to investigate her conduct in line with Article 168 (4) of the Constitution.[8] After her suspension,[9] a commission formed to investigate her conduct recommended her removal from office.[10] On 18 October, she subsequently resigned after withdrawing her supreme court appeal of the tribunal's verdict.[11]

The vacant position of Deputy Chief Justice was advertised by the Commission (JSC) on 9 November 2012. The JSC however re-advertised because it was dissatisfied by the number of applicants. The position subsequently attracted applications from 17 women and one man.[12] Those shortlisted for the position were:[13]

• Court of Appeal Judge Kalpana Rawal
• Raychelle Omamo Awuor – first woman chair of the Law Society of Kenya and Kenya ambassador to France
• Joyce Miguda Majiwa – former executive director of FIDA
• Lucy Muthoni Kambuni – former Law Society of Kenya vice-chairperson
• Okawa Phoebe Nyawade – an advocate of the High Court in private practice

The justices who failed to make the short-list were Roselyn Nambuye, Fatuma Sichale, Fatuma Sichale, Wanjiru Karanja, Grace Wangui Ngenye, Ruth Sitati, Helen Omondi, Hannah Okwengu and Mary Ang'awa. On 22 February 2013, the JSC announced that after completing the interviews it had nominated Court of Appeal Judge Kalpana Rawal. There will however be a longer wait for the next steps in the process as the current parliament completed its term and the next Parliament is to be elected during the March general Election. The new parliament will then form departmental committees including the one on Justice and Legal Affairs which will then vet her suitability for the office.[14]

On 17 August 2013, the JSC, in a meeting in Mombasa (while Gladys Boss Shollei was away in a trip in Canada) resolved to commence investigations into complaints and allegations touching on financial management and governance issues in the Judiciary.
The Commission asked the Chief Registrar of the Judiciary, Mrs Gladys Boss Shollei, to take 14 days' leave and appointed the Deputy Chief Registrar to act in her place.
Although the Chief Registrar filed a petition in the High Court seeking to restrain the Commission from taking any disciplinary action against her, she later elected to withdraw the case on 30 August 2013 without any conditions.
On 9 September 2013, the Judicial Service Commission served the Chief Registrar of the Judiciary, Mrs Gladys Boss Shollei, with 87 allegations touching on financial and human resource mismanagement, irregularities and illegalities in procurement, and misbehavior. The CRJ was given 21 days to respond, and a further 18 days for oral submissions on her request.

1. Incompetence
2. Misbehaviour
3. Violation of the prescribed code of conduct for judicial officers
4. Violation of Chapter 6, and Article 232 of the Constitution of Kenya, 2010
5. Insubordination

1. Shollei accused the JSC members of witch-hunting. Shollei said she had a difficult working relationship with lawyer Ahmednasir Abdullahi, Appeal Court judge Mohammed Warsame and chief magistrate Emily Ominde.
2. Shollei accused JSC members of receiving KShs 128 million in allowances in numerous unnecessary JSC meetings since 2011 at a rate of kshs 80,000 per sitting.

On 27 September 2013, the Standard Newspaper published a trove of email correspondence between Mr Mutunga and the four-person team he has created as his hand-picked personal staff.
According to the documents, the “war plan” was to be executed within 21 days starting from 22 September, climaxing on 1 October when Mr Mutunga will call a full JSC meeting, dubbed the “Day of the Transformational Blood-Bath”, as point number 16 of the plot, the CJ was to impress upon the JSC to have Mrs Shollei dismissed or suspended.
The Chief Justice never denied the emails instead claimed his email account had been hacked.

On 18 October 2013, JSC met in Supreme Court and resolved to remove the Chief Registrar of the Judiciary from office after failing to honour appearance to give an oral defence. [15]