High Court orders State to pay judges Sh102.5m over delayed appointments

In a judgment delivered at the Milimani Law Courts, the court found that the prolonged failure to appoint the judges—despite their recommendation by the Judicial Service Commission (JSC)—violated their constitutional rights, particularly the right to dignity and fair administrative action.

The judges had been recommended for appointment in August 2019 but were only sworn into office in June 2021, a delay of about 21 to 22 months.

During that period, court documents show that the Presidency neither issued appointment instruments nor provided written reasons for the inaction.

"This petition assails the dilatory and reluctant manner the President of the Republic of Kenya failed to act on the recommendation of the Judicial Service Commission regarding the appointment of the Petitioners as Judges of the Environment and Land Court and, the Employment and Labour Relations Court thereby violating the Petitioners constitutional rights and legitimate expectation," the judgment states.

The State opposed the petition, arguing it was fatally defective and an abuse of the court process.

It contended that the matter was barred by the doctrine of res judicata, maintaining that the issues raised had been directly and substantially determined in other constitutional cases previously cited.

In its orders, the court declared that the President was constitutionally bound to act on the JSC’s recommendations and that the prolonged delay was unreasonable, unjustified and contrary to Articles 28 and 47 of the constitution.

The court held that the affected judges were left in a state of uncertainty that caused professional, reputational and psychological harm.

The court further faulted public remarks made at the time suggesting that some of the nominees had integrity issues, noting that no particulars were ever supplied and no adverse findings were made against any of the judges.

The court held that these insinuations gravely injured the judges’ dignity and standing in society.

As a remedy, the court ordered the State to pay a total of Sh102.5 million in general damages, awarding Sh2.5 million to each of the 41 judges.

"To vindicate the petitioners’ constitutional right to inherent human dignity under Article 28 and the right to fair administrative action under Article 47, compensation is hereby awarded of Sh2,500,000 to each petitioner," Justice Lawrence Mugambi ruled.

He described the compensation as vindicatory, aimed at affirming the importance of constitutional rights and deterring future violations, rather than punishing the state.

However, the court declined to award exemplary or punitive damages, finding that constitutional compensation is not meant to be penal in nature.

It also rejected claims for special damages running into hundreds of millions of shillings, ruling that such losses had not been sufficiently proved to the required legal standard.

"I do not find any proof of special/actual loss pleaded and specifically proved. The claim for special damages is unsubstantiated and must therefore fail," the judge said.