On 2 February 2009, Teachers Service Commission (TSC) Secretary Gabriel Lengoiboni sent a letter to the Senior Principal Legal Officer, David K. Njagi Marete, retiring him in the “public interest” after over six years of service.
Marete sucked in that punch and worked until the end of the day before clearing out his desk to head home. Thereafter, he sued the TSC for KSh26.3 million, seeking damages for breach of contract, punitive damages, exemplary damages and aggravated damages. The Industrial Court observed that the public interest Marete’s retirement was meant to serve had not been disclosed and although it did not agree to pay him a salary for the 11 years he would have continued to serve at the TSC, nevertheless awarded him Sh1.91 million for unfair termination of employment. The Court of Appeal upheld the finding of the High Court in March last year.
Whatever “public interest” Marete’s retirement had sought to serve, it was no bar to his appointment as a judge of the Employment and Labour Relations Court in 2012 and has shaped much of his jurisprudence in the nine years he has been a judge. Judge Marete relied on his own case in the two judgments against Maasai Mara University that he has filed as part of his samples of writing.
Marete joined the Office of the Attorney General soon after qualifying from the Kenya School of Law in 1985, and rose from State Counsel to Principal State Counsel before leaving for the TSC in 2003.
Marete enrolled for a diploma in Theology from the Presbyterian University of East Africa in 2004, and later studied for his Master’s Degree in law at the University of Nairobi in 2007. His LLM thesis, “Towards a New Constitutional Dispensation in Kenya: The Politics of the Constitution and the Constitution Making Process”, is provided as the first sample of his writing. He taught briefly at the Africa Nazarene University before applying for judgeship at the Employment and Labour Relations Court.
Once appointed to the bench, Justice Marete served in Nairobi before a posting to Kericho where he made some of his most consequential decisions. Marete made waves with the 2017 decision on whether or not public officers ought to resign from their jobs before contesting elections. Quoting extensively from 1 Kings 21, Judge Marete found that there was no compelling public interest requiring the mandatory resignation of a public officer from office while exempting Members of Parliament and Members of County Assemblies.
On 19 October 2017, Judge Marete granted an order of injunction restraining the Kenya Tea Growers Association as well as five tea firms from victimising and dismissing any employee in respect of a strike notice or issues outstanding from the 2016/17 collective bargaining agreement. Two days earlier, one of the tea companies — James Finlay — had obtained an interim injunction from a Nairobi court restraining the workers’ union from going on strike, and requiring police officers to enforce court orders and to protect its properties from destruction. This formed the basis for a complaint Kaplan and Stratton Advocates filed against the judge at the Judicial Service Commission (JSC) for interfering in another court’s decision.
Although the Judge did not succeed in blocking the JSC from recommending his investigation through the courts, he triumphed when the tribunal appointed to try him dismissed the charge of misconduct.
Serving in the Employment and Labour Relations Court has necessarily limited Judge Marete to this province of the law. And although his graduate degree thesis reviewed the politics of constitution making in Kenya, it necessarily stopped before the adoption of the 2010 Constitution. His authorship seems sparse and restricted to his judgments, thus denying the public a window into his judicial philosophy on questions outside employment relations.
Yet, a seemingly innocuous incident involving order in court will likely invite discussion of Judge’s Marete’s temperament in conducting his judicial functions. And it would not have attracted attention had the judge not offered his ruling on the matter as part of his samples of writing.
On 27 May 2016, Judge Marete sent a court assistant at the Kericho law courts to police remand for three days for contempt. He had been forced to adjourn proceedings in his court at 10.15 a.m. due to loud noises outside. Marete ordered his clerk to summon the noisemakers, but only one judicial staff officer showed up. Marete was made to believe that the clerk’s colleague had defied summonses and therefore ordered his arrest. It turned out during the trial — which focused on the judiciary staff who had been arrested and not his colleague who had come to court — that the court clerk had not been truthful. It was a right royal mess, and Judge Marete asks in the script that forms part of his sample writing, “Could this episode and circumstances have been avoided in the first instance?” He then launches into a critique of the conduct and management of judiciary administration, questions staff training and quotes Hamlet to hint darkly that, “Something is rotten in the gardens of Denmark”!
The judge argues in his judgment that people shouting in the corridors during court proceedings was so commonplace that he had intervened at least four times in extreme and unbearable situations.
That Judge Marete cites the Chief Magistrate — who is the Chief Administrator of the law courts — in his ruling, asking what is to be thought of his leadership, will likely provide interesting debate during his interview about his ability to supervise colleagues.
Marete assuages his conscience on the miscarriage of justice by quoting George R. R. Martin’s Game of Thrones, apologises to the arrested court assistant and frees him, declaring: “Personal liberty shall never be assumed or taken for granted whatsoever. This is sacrosanct. I do this on my behalf and that of the entire judiciary family and by extension the public service in general. I beseech our main stakeholders, the Kenyan public to always raise issues in the event of maladministration and violation of their rights in the performance of our duties.”
Judge Marete, 62, has also served in the law courts at Nyeri and Eldoret, but little in his experience has tested his skills in embracing the jurisprudential burden on the Supreme Court or engaging other organs of government as would be required of the Chief Justice. Should he seek to claim special consideration as the only judge from Tharaka Nithi seeking a senior judicial appointment, he will have to contend with arguments that the former Eastern Province already has a judge in the Supreme Court in the person of the Deputy Chief Justice.
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