Judiciary In Trouble Over Appointment Of Registrar Who Was Not Shortlisted

The Judicial Service Commission (JSC)'s decision to appoint Clarence Awuor Otieno as the new Registrar of the High Court on Tuesday, July 25 has met its first major hurdle.

Three lawyers on Monday, July 31 namely Omwanza Ombati, Robinson Kigen and Brian Ochieng' Saka moved to the High Court seeking to quash the appointment of Awuor as the new Registrar, which was done despite her name not being among the shortlisted candidates in a May 22 statement by the commission.

In their petition filed at the High Court, the lawyers argued that the appointment of Awuor was irregular and unlawful as she was not among the shortlisted candidates by JSC for interviews during the recruitment process.

"The petitioners are reasonably aggrieved with the appointment (of Awuor), as it wouldn’t be expected that a person who had never been shortlisted would be the successful candidate," the three lawyers stated in court papers.

Deputy Chief Justice Philomena Mwilu with members of the Judicial Service Commission (JSC) in this photo taken on May 5, 2021. /JUDICIAL SERVICE COMMISSION-KENYA

The lawyers added that Awuor was handpicked in an opaque process. Those who were publicly shortlisted for interviews held on Wednesday, May 31 were magistrates Ann Wanjiru, Pauline Wangari, Dennis Kipkirui, Fredrick Momanyi, Elizabeth Juma and Elizabeth Tanui.

They further argued that it was questionable whether Awuor had applied for the job or she was even interviewed, having not been shortlisted, further faulting the Commission led by Chief Justice Martha Koome for lack of transparency and accountability.

"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 added.

The trio also claimed that JSC had 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.

The petitioners argued that the process of shortlisting candidates is an important one as it was expected that JSC would have picked their appointee from its shortlist of six candidates instead of Otieno whom it omitted 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," they added.

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.

JSC was yet to explain their reason for appointing Awuor as the Registrar of the High Court without shortlisting her, only alluding to Awuor being interviewed in their statement, but the announcement did not specify the date.

Interestingly, she was appointed as an acting registrar on the date of the interviews. Her appointment was effective July 24, meaning any challenge to remove her from the post would have to go through the court. 

Clarence Awuor Otieno Profile

According to JSC, Awuor is an Advocate of the High Court of Kenya with over 18 years of post-admission experience. She is a long-serving Judicial Officer having joined the bench in 2008 as a Resident Magistrate rising to the rank of Senior Principal Magistrate.

Her last station was Ruiru Law Courts, which was recognised as the best court station in the category of courts, with 3,000 cases and above in the 6th PMMU Cycle FY 2020/2021. Prior to joining the bench, she served as a litigation Associate at Ocharo & Co. Advocates.

Awuor holds a Bachelor of Laws degree LL.B from the University of Nairobi, an LL.M from the University of South Africa and a Master of Public Administration degree from the University of Nairobi.

The Judiciary building in Nairobi. /FILE

She also holds a postgraduate Diploma in Law from the Kenya School of Law and has attended a Strategic Leadership Development Program at the Kenya School of Government.

"Hon. Otieno is passionate about excellence in Public Service and serves on the committee on Alternative Justice Systems and SGBV Courts," stated JSC in part.

The Judiciary has in the past been accused of using favouritism in making some appointments, with some being challenged in court.