A plot has been hatched by power brokers in the legal fraternity to have senior counsel Fred Ngatia become the next Chief Justice to replace David Maraga who has since retired.
Weekly Citizen has information the lawyers commonly known as the Karen Gang were instrumental in convincing Supreme Court judges not to apply for the CJ positions since majority of them had nullified the presidential 2017 elections and the powers be were not comfortable with them. The Karen Gang has lawyers Paul Muite, Ahmednassir Abdullahi, New York-based Makau Mutua and Tom Ojienda. The group has also brought on board Law Society of Kenya president, Nelson Havi.
The gang boasts to be able to influence members of Judicial Service Commission to appoint CJ favourable to them. Insiders well versed with Maraga succession reveal that initially, the gang wanted Mutua to apply but upon discovery certain forces would veto, they started fronting for Deputy Chief Justice Philomena Mwilu. Mwilu candidature suffered a major blow after a Meru High Court judge ruled against her. The Meru ruling against Mwilu, although was later set aside, got the gang offguard, forcing them to work on plan B thus the Ngatia project.
Why Ngatia? one may ask. First, Ngatia was Uhuru Kenyatta’s lead counsel together with Ahmednassir during the nullified presidential elections. To them, Ngatia has political connections in the corridors of power to help him be the next president of Supreme Court. Second is the fact, age is on his side. To the gang, Ngatia will be a stop gap CJ as one of them accumulates years and then takes over when time is ripe.
Weekly Citizen has information that the Ngatia project is facing headwinds within the deep state.
Ngatia by virtue of being pushed by those sympathetic to William Ruto in Uhuru succession gameplan has not been received well. Informed sources further reveal that secret dossiers involving Ngatia representing his clients in mega corruption cases, and his social background are to emerge during the recruitment process. Among cases Ngatia has handled include those of Anglo Leasing representing the Kamani brothers, the money-laundering extradition case of former Kenya Power MD Samuel Gichuru and Finance minister in Moi government Chris Okemo.
Among sober minds surrounding Uhuru, to have a Kikuyu head the Judiciary when Uhuru is still in power is not politically appropriate. It was on this basis leading Kikuyu lawyers did not apply for CJ portfolio, among them former Attorney General Githu Muigai, as it had been expected in certain quarters. Even the current AG Paul Kihara’s name featured among those to succeed Maraga. News trickling in relating to Ngatia reveal that during the 2013 presidential election petition, Uhuru preferred him just as it was with ICC which was Desterio Oyatsi.
In the case, Nairobi tycoon Jimmy Wanjigi who during Kibaki succession had thrown his weight behind Uhuru and Ruto after his candidate George Saitoti perished in air accident near Kibiko in Ngong recruited Ngatia to join Oyatsi in defending the Jubilee first election case. Insiders say with Wanjigi having found his way back in Raila Odinga inner core after falling apart for some time, the gang wants him to prevail to the ODM leader to push for Ngatia to be the next CJ. Ngatia was Saitoti’s lawyer and is still the family’s legal representative.
Those who know Wanjigi well say he made his wealth when Saitoti held powerful cabinet slots in Moi regime. Ngatia was also introduced to Anglo Leasing’s Kamani brothers still facing corrupt cases, by Wanjigi. Some around Uhuru further argue that the AG is a Kikuyu and having a CJ with the president being blamed for appointing his tribesmen in plum state positions will haunt his twilight months in power and his Building Bridges Initiative where the president’s gospel has been uniting Kenyans with regional balancing act.
Source within the judiciary have divulged that power brokers within both the judiciary and State House are keen on having an outsider take over the top judiciary position.
It has since emerged that the popular feeling is that a member of the Kalenjin has never held the position of Chief Justice. Further, the community is not represented in Supreme Court. Regional balancing has in recent years taken centrestage in the appointment of state officers and constitutional office holders in the country.
Big names in the legal fraternity gave the vacant post of Chief Justice a wide berth as seen in the list of candidates released by the Judicial Service Commission. Some of the prominent personalities such as acting CJ Mwilu and law scholar Makau did not submit applications. Those who applied include University of Nairobi law lecturer Patricia Mbote, Philip Murgor, Appeal Court judges William Ouko and Martha Koome, and High Court judges Njagi Marete, Said Chitembwe and Mathew Nduma.
Also on the list are a former commissioner with the Constitution of Kenya Review Commission, Alice Yano, Otinga Mare, sports medical doctor Moni Wekesa, Otondi Ontweka and Ombongi Matagaro. Nine other persons, among them Ouko, Yano, Koome, Nduma, Marete and Chitembwe have applied to fill the position left vacant by Justice JB Ojwang’ at the Supreme Court. Also in this group are Court of Appeal judge and former chairman of the Kenya Law Reform Commission Kathurima M’Inoti and Lumumba Nyaberi.
Interviews for the selection of Maraga’s successor are scheduled to be conducted concurrently with those for the vacant slot in the Supreme Court following the retirement of Justice Ojwang’ early last year. The decision by Justice Mwilu not to apply for the position essentially means she will remain in her current position as deputy CJ, thereby diminishing chances for female applicants for the position of Chief Justice and president of the Supreme Court. The constitution stipulates that the positions of CJ and deputy are held by persons of opposite gender.
And with Mwilu coming from Eastern Kenya region, the doors also appear to be slammed on candidates from the counties of Embu, Meru, Machakos, Kitui and Makueni. The process to nominate a CJ is traditionally determined by various factors, among them gender and regional balance, track record in jurisprudence, integrity and probity and political considerations to some extent. Since JSC declared the position vacant following Maraga’s retirement on January 12, intense lobbying has been going on within the corridors of the Judiciary and the legal fraternity in general.
Whereas the executive is reportedly said to be pushing for a conservative and friendlier CJ, the judiciary and civil society are fronting for an independent lawyer who would take on the government in defence of the independence of the judiciary. Justice Ouko is the president of the Court of Appeal and once served as Registrar of the Judiciary. He is likely to replace Ojwang at the Supreme Court. Judge Chitembwe is best known for his decision to free a man convicted for defiling a minor, which attracted international spotlight.
Mbote, the University of Nairobi School of Law dean is a mentor and teacher of many lawyers including judges. Murgor who served as DPP during the Kibaki regime is emerging as a force in the succession race forcing those opposed to him to block his bid. The next CJ is expected to play a key role in the determination of the consolidated 11 BBI cases, the referendum process, the 2022 general election and the swearing-in of Uhuru’s successor.