Justice Martha Karambu Koome was the first judge to opt for public sessions for her interviews with the Judges and Magistrates Vetting Board in May 2012, and she continues to face her detractors head-on.
After hearing complaints that Judge Koome had not kept accurate records of court proceedings and leaned one way in gender-related cases, the nine-member board was split down the middle, thus allowing her to continue in service.
“If there was concern that she was unduly intent on combating patriarchy, this was a matter to be discussed by the judiciary as a whole,” the board said, adding that if she erred, she did so in favour of what she regarded as promoting human rights. The board commended her for supporting the principle that the interests of the child should be paramount.
Koome, 61, has had an illustrious career spanning 33 years in private legal practice and on the bench. After topping her class at Mugoiri Girls High School, Koome studied law at the University of Nairobi, graduating from the Kenya School of Law in 1987, before being admitted to the roll of advocates.
She joined the International Federation of Women Lawyers in Kenya (FIDA-Kenya), and was one of the brave lawyers representing government critics such as opposition leader Raila Odinga, as well as other human rights activists.
Once elected as FIDA chairperson, Koome led the civil rights organisation in securing women’s participation in the constitutional review process, and championing the establishment of the family division of the High Court, as well as the enactment of laws to protect the rights of families and children.
FIDA was the civil society representative in the Sector-Wide Legal Reform Committee that developed the blueprint for reforming institutions dealing with the administration of justice. The blueprint led to the establishment of the Governance, Justice, Law and Order Sector (GJLOS) reform initiative, now institutionalised as the National Council on the Administration of Justice.
Before her appointment as High Court judge in 2003, Koome had been elected to the Council of the Law Society from 1993 to 1996, and was treasurer of the East Africa Law Society. She served on the African Union Committee on the Rights and Welfare of Children (ACRWC) between 2005 and 2010.
Koome headed the Land and Environment Division of the High Court in Nairobi and was resident judge in Nakuru and Kitale before serving in the commercial and family divisions of the High Court in Nairobi.
Once off the bench, Koome was elected chairperson of the Kenya Judges and Magistrates Association in 2010, and is currently chairperson of the Task Force on Children Matters with a mandate to review legislation, policy and rules of procedure to promote and protect the rights of children.
Koome obtained a Master of Laws degree from the University of London in 2010, just in time for her appointment to the Court of Appeal in 2012.Her first major decision on the appellate court saw Koome break ranks with her four colleagues on the bench hearing the appeal on the date of the first elections under the new Constitution.
“The formula for arriving at the date of the next General Election should have been 60 days before the end of its term and not after. The National Assembly should have been dissolved 60 days before the expiration of its term — that should have been on or about November 14, 2012,” she wrote in her dissenting judgment. “This way, the current National Assembly cannot go beyond its lifespan of five years and the Members of Parliament will have served their entire term of five years. The date for the next general elections should have been on or about January 15, 2013.”
Koome served on the Court of Appeal in Nyeri and Malindi before returning to Nairobi, often writing judgements as a member of three-judge benches.
One of the decisions that has continued to haunt her is the 2017 ruling setting aside a High Court decision that found that the appointment of returning officers for the 26 October 2017 presidential election to be outside the law. In her response to a complaint to the Judicial Service Commission, Judge Koome explained that she was empanelled by the President of the Court of Appeal since she was working in Nairobi that week, and sat with two other judges to consider the application, notwithstanding that it was a public holiday, because no law in the Constitution or Statute bars judges from discharging judicial functions.
“After hearing the matter in open court, we retired . . . to deliberated on the merits of the application and reached the ruling, which we signed and delivered the same day in open court.”
She argues that the Supreme Court, in hearing the petition challenging the fresh presidential election, settled the issue of the appointment of returning officers and their deputies, thus validating the Court of Appeal’s decision.
A section of the Law Society of Kenya leadership has recently added two other complaints to the one on the returning officers. They faulted the Court of Appeal’s decision to stop the attachment of the National Cereals & Produce Board by Erad Supplies & General Contractors Ltd. for a judgment entered in their favour in respect of a contract for the supply of maize.
Judge Koome offers that two directors of Erad Supplies & General Contractors Ltd. were tried for various criminal offences, convicted and sentenced. “This conviction demonstrates that the order of stay granted by the Court of Appeal, to stop the attachment of the applicant, a strategic national food reserve, was indeed meritorious and a timely intervention by the court that saved taxpayers millions of shillings.”
The other complaint concerns her decision, as part of a Court of Appeal bench, to stop Prof. Tom Ojienda from running in the Law Society of Kenya election to appoint a representative to the Judicial Service Commission (JSC). Again, the judge argues that the decision was made in exercise of judicial discretion.
Four of Judge Koome’s sample writings supplied to the JSC to provide a glimpse into her thinking are judgments written with other judges and might not provide sufficient material to glean her individual judicial philosophy, style or reasoning. The fifth, a paper she wrote on the implications of the Francis Muruatetu case on sentencing, argues for a revision of the Sentencing Guidelines to provide for degrees for categorising the circumstances in which serious crimes are committed to guide sentencing – especially in mandatory death penalty and sexual offences cases.
Last year, Judge Koome was honoured as a UN Kenya Person of the Year runner-up for her advocacy to improve the legal rights of women and children in the justice system. The law requires the commission to choose the most qualified applicants “taking into account gender, regional, ethnic and other diversities of the people of Kenya”, which is often interpreted to mean that political considerations are an important criterion.
Two political hurdles stand in her way in her quest to become Chief Justice, or in the alternate, to join the Supreme Court. Conventional wisdom would argue the likelihood of the two top jobs in the judiciary being held by women, given that acting Chief Justice Philomena Mwilu is already in post as Deputy Chief Justice. Judge Koome will likely draw comfort from the parting advice of former Chief Justice Willy Mutunga who wrote a 10-page opinion to the JSC in his valedictory note in 2016 arguing that there was nothing wrong in the Chief Justice and the Deputy Chief Justice being women.
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