The courts should refrain from issuing ex parte orders, often sought in the interest of the public, except in very extreme circumstances where no other judicial remedy can suffice, a candidate for Court of Appeal judge has told Chief Justice Martha Koome.
Brown Murungi, who appeared before the Judicial Service Commission for an interview on Tuesday, said the Judiciary should set out guidelines for issuing ex parte orders, saying such injunctions may stall key operations of the state.
“Ex parte orders are extraordinary judicial remedies that should never be granted unless in very extreme situations,” Murungi said to a question from Attorney General Dorcas Oduor.
His view came just a day after Nakuru High Court judge Samwel Mohochi issued a conservatory order barring public entities from procuring legal services from private advocates or law firms.
The orders issued on Monday have caused uproar, with the Law Society of Kenya and county governments saying it would stall ongoing cases in court where many public entities are being represented by private lawyers.
Murungi, who has served as an advocate for over 20 years, told the JSC that judges ought to thoroughly assess the gravity of the matter at hand and interrogate the larger public interest before resorting to issuing conservatory orders.
“The Judiciary needs to set out guidelines and I think there is an urgent need to do it,” Murungi said.
The lawyer was before the commission for interview through which the JSC seeks to hire 15 judges to fill vacancies in the Court of Appeal.
The JSC is chaired by Chief Justice Martha Koome with former Bomet Governor Isaac Rutto as the vice chairman. Members include Justice Njoki Ndungu represting Supreme Court judges, Fatuma Sichale who is representing judges of the Court of Appeal, Justice Antony Mrima representing judges of the High Court and Everlyne Olwande representing magistrates.
Other commissioners are Attorney General Dorcas Oduor, Ruto and Caroline Nzilani who represent the public and Charity Kisotu of the Public Service Commission. Lawyers Omwanza Ombati and Jacqueline Ingutiah represent the Law Society of Kenya.
Earlier, political links haunted candidates Lucy Wanja and Joseph Kaberia as they were taken to task over how they would balance their work and political acquaintances.
Kaberia served as the speaker of the Meru county assembly for 10 years and contested the senatorial seat in the 2022 elections while Wanja quit as a lecturer at Chuka University in 2022 to seek the position of Tharaka Nithi Woman Representative.
“A judge of the Court of Appeal is a very busy person and you may not have sufficient time to deliver,” commissioner Nzilani asked Kaberia.
The lawyer however said politics should not be an exception and that the Judiciary was replete with examples of judges who have previously been politicians and had delivered as judges.
“Even in the current Supreme Court, there is a judge who was an MP before joining the bench and she has done very well. So, if I’m successful, I believe the parameters of performance will be used to judge my work,” Kaberia said.
Wanja was asked why she quit her teaching job at Chuka University to run for elective office but she insisted she did not quit saying she was on a non-renewable contract term, which was ending.
She said she was not a member of any party and ran as an independent candidate. Wanja said her teaching experience would be valuable in the appellate court.
“The Court of Appeal is a teaching court that mentors the lower courts and I’m very good with that. I know many things and I would draw from that wealth of knowledge to enrich the court,” she said.
Lawyer Katwa Kigen and Capital Markets Tribunal chairman Paul Lilan were also interviewed for the job. The interviews began on Monday with Prof Migai Akech, former IEBC chairman Issack Hassan and judges Oscar Angote and Yuvinalis Angima and lawyer Protus Gathege facing the panel. The interviews continue.
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