Court awards 22 judges Sh55million over Uhuru’s 21-month appointment delay

Twenty-two judges have been awarded a total of Sh55million in compensation after the High Court found that their constitutional rights were violated when they were kept waiting for 21 months to be formally appointed to the bench.

The judges were among 41 judicial officers whose appointments were declined by former President Uhuru Kenyatta in 2019.

The President cited undisclosed intelligence reports and questioned the integrity and character of some of the nominees, but did not provide specific reasons or evidence to support the claims.

In its judgment, the High Court held that the President’s unproven assertions, coupled with his prolonged refusal to appoint the judges, gravely damaged their professional standing and personal dignity.

The court noted that by casting aspersions on their suitability without substantiation, the President portrayed them as unethical and unfit to serve, exposing them to public ridicule and reputational harm.

The affected judges were nominated to serve in the Environment and Land Court (ELC) and the Employment and Labour Relations Court (ELRC) after a competitive recruitment process conducted by the Judicial Service Commission (JSC).

On August 13, 2019, the JSC formally recommended their appointment in accordance with Article 166(1)(b) of the Constitution, which provides that the President shall appoint judges on the recommendation of the commission.

However, despite the constitutional framework, the President failed to act on the JSC’s recommendation for 21 months.

The judges argued that during this period they were left in a state of uncertainty, with no written explanation for the delay. The court agreed, describing the prolonged inaction as unreasonable, unjustifiable and disproportionate.

“The uncontroverted fact is that they were kept in a state of limbo for 21 months without any written reason whatsoever as to why the Respondent had neglected to act on the recommendation of the JSC,” the court observed.

According to the judges, the delay caused significant personal and professional hardship. Many had resigned from their previous employment after being recommended for appointment, in legitimate expectation that the President would formalise their positions.

Instead, they endured nearly two years of uncertainty, financial strain and reputational damage as public debate swirled around their alleged unsuitability.

The court found that the President’s actions violated the judges’ right to dignity under Article 28 of the Constitution and their right to fair administrative action under Article 47.

It held that casting unsubstantiated aspersions on their integrity, without giving them a hearing or providing evidence, amounted to a violation of their constitutional protections.

“A declaration is hereby issued that the State, through the actions of the President, by casting unsubstantiated aspersions that the Petitioners were unfit to hold public office… violated the Petitioners’ right to have their dignity respected and protected under Article 28 of the Constitution,” the judgment stated.

To vindicate their rights, the court awarded each of the 22 judges Sh2.5 million, bringing the total compensation to Sh55million.

The court said the damages were intended to affirm the importance of constitutional safeguards and the principles of fairness, transparency and respect for human dignity in public appointments.

The judges had sued the Attorney General, arguing that the President’s refusal to appoint them, despite the JSC’s recommendation, was unconstitutional and contrary to their legitimate expectation.

They maintained that no formal communication or lawful justification was provided for the delay.

The Attorney General opposed the petition, contending that the matter had already been determined in earlier proceedings.

However, the court found that the claims relating to violation of dignity and fair administrative action warranted consideration and relief.