Underdogs have an unfailing defender in Matthews Nduma Nderi, the 59-year-old former principal judge of the Environment and Labour Relations Court.
Justice Nderi has written and read many judgments that strike a blow for justice for low-income workers such as security guards and domestic workers. Last year, he ruled in one such case: “It is unlawful to terminate the employment of a house help without giving her notice. It is also illegal and unfair labour practice to send a house help away without paying her any terminal benefits and not giving her certificate of service.”
The domestic worker had challenged her dismissal, which had followed her request to her employer for a salary increment. The judge awarded her Sh270,964 for the unfair termination of contract.
Justice Nderi’s most famous defence of workers was in a 30 June 2015 judgment; for a few months thereafter, Justice Nderi was the darling of the teaching fraternity after he awarded teachers a 50 to 60 per cent increment on their basic salary.
It is not one of the judgments he has sent to the Judicial Service Commission as part of his five sample writings to be considered in his application for the positions of Chief Justice and Supreme Court judge — and for good reason.
Within four months of that decision, five Court of Appeal judges had torn his legal reasoning to shreds, faulted his fidelity to procedure, and accused him of encouraging litigants to commit offences.
Justice Erastus Githinji found that the Labour Court had no jurisdiction to award the teachers a basic salary increment and allowances, as it could not derive such jurisdiction from the consent order Judge Nderi used as a basis to convert the petition into an “economic dispute”.
“If a judge takes up the role of a conciliator or mediator, then he or she should relinquish the role of an adjudicator,” wrote Justice Martha Koome in the same judgment. “It was unprocedural and untidy for a judge to switch from one role to the other.”
Koome added that the judge probably saw himself as a problem solver, referring to the tension caused by the incessant teacher strikes: “The judge was in a hurry to finalize the matter and resolve the dispute expeditiously. However, the award turned out to be a ‘quick fix’ that could not stand the test of the law and the Constitution.”
For her part, Justice Philomena Mwilu (as she then was) added: “The trial judge appears to have been overzealous to end the perennial cause of teachers strikes and thereby ignored the petition that started the proceedings, and framed issues for determination which were outside the petition.”
Another judge, Justice Festus Azangalala, did not spare Judge Nderi either, writing in his appeal judgment: “The Judge assumed a jurisdiction which, under the circumstances, he did not have.”
In concluding, Justice Otieno Odek declared that a judgment of a court cannot, and should not, direct any person to commit an offence. “To the extent that the judgment directs TSC to effect payment without following constitutional procedures and to the extent that the judgment requires TSC and or its officers to commit an offence, [the judgment] is unconstitutional, null and void.”
Government experts had argued that implementing Judge Nderi’s award – flowing from a tentative offer the TSC had made to the teachers’ unions before they were advised by the Salaries and Remuneration Commission to hold their horses — would expand the teachers’ wage bill by KSh216 billion, and trigger an additional increase of KSh360 billion for the rest of the civil service. In total, the economists projected that the public wage bill would swell by KSh929.8 billion, representing 95.3 per cent of all domestic revenue. They further argued that this would also significantly increase the pension liability from the KSh991 billion at the time.
Born in Embu County in 1962, Judge Nderi graduated with a Bachelor of Laws degree from the University of Nairobi in 1987 and practised law in his Nairobi law firm for five years after qualifying for the bar at the Kenya School of Law. He was in the team of lawyers that successfully defended George Anyona, Njeru Kathangu, Ngotho Kariuki and Edward Oyugi against treason charges during the Daniel arap Moi era.
After the 1992 elections, Nderi joined the Swaziland prosecution service where he worked as crown counsel from 1993 to 1998. He was appointed Judge President of the Industrial Court of Swaziland in 1998 and served until March 2006.
Justice Nderi then returned home to head the Federation of Kenya Employers’ legal and industrial affairs division for a year before moving to Tanzania as the Principal Legal Counsel for the East African Community.
He worked at the East African Community between 2008 and July 2012 before returning home to be appointed judge in the new Employment and Labour Relations Court. Nderi was elected as the first Principal Judge of that court, a perch from where he was able to showcase his case management skills.
The judge, a Nairobi School alumnus, also obtained diplomas in business organisation and management and human resource management from the South African Institute of Management between 1994 and 1995, as well as a Master’s degree in law from the University of Stellenbosch in 2004.
The judgments he has supplied as part of his sample writing include an award of KSh6.9 million to a university employee who was denied permanent employment and salary increment once she tested positive for HIV. He has also supplied a dissent from a majority decision allowing unions to charge non-union members agency fees.
Judge Nderi has an aggregate of 31 years experience in the legal profession.
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Fredrick Ngatia: Uhuru’s Lawyer Who Added a ‘Province’ to Kenya Now Wants CJ Job
Beyond his 40 years’ experience in the practice of law, Ngatia will be brandishing his freshly minted masters in applied philosophy to prove that a CJ needs a multidisciplinary approach.
Fredrick Ngatia has never had to attend a job interview in the past 40 years. Selected as one of the top six students from the Kenya School of Law to join the Attorney General’s office, Ngatia sat across Frank Shields — who later become a notorious duty judge — as he lit a cigarette and asked the rookie lawyer to choose between criminal prosecution and civil litigation.
Ngatia chose civil litigation and takes great pride that he subsequently added a 9,000 square-kilometre hump to the map of Kenya at the border with Sudan. He had begun to inquire into the Ilemi Triangle, and his thesis for a Master of Laws degree at the London School of Economics shaped Kenya’s case when it acquired the territory of over 9,696 square kilometres.
Sudan, an Anglo-Egyptian condominium, had an imprecise international boundary with Kenya because the area then known as Rudolph Province was originally in Uganda, and was customary grazing grounds for the Turkana.
A joint survey team in 1938 created two lines, a straight one in the northern part of Kenya, and a patrol line by Sudan in 1950. Below the patrol line, Sudan was not interested in the territory, but Kenya decided to administer the area to pacify grazing communities in what would come to be known as the Ilemi Triangle. It is possible to acquire territory through the inaction of the other country and the passage of time. Ngatia believes that similar reasoning could save Kenya heartache in its territorial dispute with Somalia at the International Court of Justice.
Having represented Uhuru Kenyatta in three presidential election petitions at the Supreme Court, Ngatia feels the need to fight off claims that he is partial to the Executive. Some reckon that nominating him to the Chief Justice’s position will be the equivalent of the Judiciary handing itself over to its Executive executioner. He is perceived as someone with access to the president, and his appointment could be read as capitulation on the part of the Judicial Service Commission, which is engaged in a struggle with the president over the appointment of 41 judges it nominated, as well as reductions in the judiciary development budget.
In his application, Ngatia has disclosed that he donated KSh500,000 to the Jubilee secretariat in 2017 during a luncheon for professionals.
Ngatia’s allies consider him to be just the person to introduce structured dialogue over the appointment of judges and inadequate funding. He is keen to be seen as his own man, but, because of his regular advocacy for Uhuru Kenyatta in the courts, he is likely to be perceived as someone who will not need to break the ice to get conversations with State House going.
Ngatia has represented the Council of Governors as well as the National Assembly in the Supreme Court and believes that his experience would stand him in good stead in understanding the interests of the various institutions the judiciary has to deal with.
Already fabulously wealthy, Ngatia does not need the Chief Justice’s job but perhaps he feels the call of public service; a number of professional colleagues are pushing him to do something for the judiciary.
Although Ngatia defines his mission as focused on improving the work ethic and the speed in processing matters in the Supreme Court, he has not applied for the vacancy in the court, instead putting all his eggs in his application for the Chief Justice’s job. Ngatia is keen to deflect political attention from the Supreme Court, saying that it is established for reasons other than as a forum for politicians to flex muscle. Yet his application speaks just to those political anxieties. Jubilee Party had tasked Ngatia with identifying a suitable candidate to support for the position of Chief Justice but after that search collapsed, he put in his application.
Although Ngatia has never sat on the bench, he is a familiar presence in litigation circles, and has been repeatedly recognised by Chambers International as a top arbitrator in Kenya. At 65, few other judges in the Supreme Court can outrank Ngatia in seniority. This will likely calm fears about a Chief Justice who would overstay at the top by serving 10 years. His is the ideal age to serve for five years, dispense with one presidential election petition, and be gone before feelings harden against him. Ngatia is keen to deploy more information communication technologies to improve efficiency as he builds collegiality and civility in the courts.
Ngatia’s long client list includes Kamlesh Pattni when he faced a murder charge, Justice Philip Tunoi when he faced a tribunal investigating his misconduct, Judges Philomena Mwilu, Mohammed Ibrahim and Abida Ali-Aroni at the Judges and Magistrates Vetting Board, and the late Vice President George Saitoti when he challenged his prosecution over the KSh158 billion Goldenberg scandal. Ngatia also filed a complaint against Judge Joseph Mutava at the tribunal investigating him, calling him a serial liar. The judge was removed from office.
Ngatia shot to fame with his representation of Uhuru Kenyatta in the 2017 presidential election petitions. As soon as the 1 September 2017 nullification decision came in, Ngatia began preparing for the next petition – which followed in November after the fresh election. He has managed a frenetic 14-day petition, and believes the same leadership principles would enable him to lead the institution.
Yet, Ngatia does not consider the presidential petitions as his greatest achievement. The apogee of his law practice is the pro bono case former Chief Justice Willy Mutunga handed him when he requested Ngatia to represent death row suspects. His success in the Francis Kariokoo Muruatetu case at the Supreme Court, where it was declared unconstitutional to impose a mandatory death sentence on convicts, is what he considers his finest piece of work. Some 5,000 prisoners have since gone back to the High Court for resentencing.
Beyond his 40 years’ experience in the practice of law, Ngatia will be brandishing his freshly minted masters in applied philosophy to prove that a CJ needs a multidisciplinary approach. He researched euthanasia, which is prohibited in Kenya, and his research found that where it is administered, the moral questions it raises demonstrate that apex courts deal with questions of bioethics, theology, the transcendental nature of man.
Last year, Ngatia joined the hallowed ranks of Senior Counsel, and he will be battling the optics of ethnic balancing in joining a Supreme Court where another member of his Kikuyu community is also a long-serving member.
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Moni Wekesa: Double Doctor Offers Potpourri of Law and Sports Medicine
Wekesa’s attempt to join the Supreme Court will likely be checked by the fact that the region already has a judge from his ethnicity in the person of Smokin Wanjala.
An independent investigation by World Rugby in March 2016 laid to rest allegations that there was systematic doping of Kenyan players through food supplements. The allegation first surfaced in a 2014 report prepared by a committee under the chairmanship of Prof. Moni Wekesa, 62, who has applied for the position of Chief Justice.
The Kenya Rugby Union has used the opportunity of Wekesa’s candidacy for the position of Chief Justice to lay bare what it saw as the anomalies that cast the country’s best internationally performing ball sport in an unseemly light.
Oduor Gangla, the chairman of the KRU, told the Judicial Service Commission in a letter that the Wekesa committee reached summary judgments and conclusions without giving senior coaches an opportunity to explain themselves, that it refused to follow procedure, instead preferring hearsay and innuendo, and that it treated the sport causally.
Gangla adds that the committee used laboratories that were not accredited by the World Anti-Doping Agency, and did not handle the samples and the testing professionally. Wekesa’s promotion of his report in the media despite its shortcomings, argues the rugby union, means that he is singularly unsuited for high judicial office.
Complaints notwithstanding, Wekesa wears his credentials on his sleeve – especially the two doctorates and his professorship in law. His pride in chairing the national task force on anti-doping between 2013 and 2014 is evident in the publicly available résumé on the Daystar University website. He credits his tenure with the subsequent enactment of the anti-doping law in 2016 and the creation of the Anti-Doping Agency of Kenya the same year.
Wekesa’s impressive sports resume includes chairing the disciplinary committee of the Football Kenya Federation and the Kenya Premier League Ltd. In 2005, the international audit firm KPMG recruited him as the chief executive officer of Kenya Football Federation in an effort to normalise soccer management in the country, but some members of the KFF board rejected his appointment and locked him out of office.
Wekesa has been in the thick of things in the anti-doping world, serving as a member of the integrity unit of the Disciplinary Tribunal of the International Association of Athletics Federations (IAAF). He served as vice-chair of the Bioethics Committee of the National Commission of Science, Technology and Innovation between 2012 and 2018 and was a sports medicine consultant for the national football, hockey and volleyball teams between 1990 and 1995. Wekesa was also Africa Doping Officer for the International Football Federation and Confederation of African Football. Wekesa still sits on the Anti-Doping Committee of the International Federation of Sports for Persons with Intellectual Disabilities, and is a director at the Anti-Doping Agency of Kenya.
After launching the law school at Mt Kenya University as dean in 2010, Wekesa was forcibly removed from the institution in 2016, and lodged a KSh58.1 million wrongful dismissal case in court. He moved on to Daystar University where he founded the School of Law as dean.
Wekesa earned a first class honours Bachelor of Education degree from the University of Nairobi in 1981 before going off to study sports medicine at master’s and doctorate levels in Cologne, Germany, in 1986 and 1989, respectively. He served as Deputy Dean of Faculty at the University of Botswana from 1996 to 1997, as departmental chair of Human Movement Science at the University of Namibia in 1998 and as regional manager of Special Olympics International in charge of Africa between 1999 and 2001.
After reaching the pinnacle of academic achievement in sports medicine, Wekesa taught the discipline at Kenyatta University, University of Botswana, and University of Namibia before switching lanes to law. He earned a bachelor’s degree from the University of Nairobi in 2002, followed by a diploma in legal practice from the Kenya School of Law in 2003. He enrolled for a master’s degree in law, writing a thesis on legal issues in technology transfer in doping control in sports, which he was awarded in 2005. He earned a doctoral degree in law from the University of Nairobi by writing his thesis on the regulation of doping in sports in Kenya.
Wekesa has been an itinerant law lecturer at the Catholic University of Eastern Africa and at the Kigali Independent Universit in, Rwanda, as well as at the Lusaka University School of Law.
Wekesa’s consultancy portfolio includes Special Olympics Inc., formulating the Regulations for the Sports Registrar, drafting the Anti-Doping Bill, Policy and Rules for the Ministry of Sports, drafting the amendment law and regulations for the Kenya Nutritionists and Dieticians Institute, and writing regulations for the Kenya Academy of Sports and Sports Kenya among others.
Although he has no judicial experience, he has practised law since his admission to the roll of advocates in 2003 and has written on intellectual property, sports and elections. As part of his sample writings Wekesa has submitted a self-published book, two articles in refereed journals and submissions to obtain a student admission to the Kenya School of Law.
Wekesa indicates that he has been teaching Sunday school since 1976, and additionally claims his work as honorary legal counsel for the East African Universities Sports Federation since 2003, as founding council member of Friends University, Kaimosi, and as member of the council of Pwani University since 2017, as part of his community service.
Born in Kakamega County, Wekesa’s attempt to join the Supreme Court will likely be checked by the fact that the region already has a judge from his ethnicity in the person of Smokin Wanjala.
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Alice Yano: A Lawyer With Deep Connections to Politics
Yano comes to the interview with a tacit regional claim to the Supreme Court seat previously occupied by Justice Philip Tunoi, who retired in 2016.
Alice Jepkoech Yano, 53, has come a long way since January 1997 when she was listed among the Kanu activists who thanked President Daniel arap Moi for appointing Nicholas Biwott back to the cabinet.
Biwott, the political overlord of Elgeyo Marakwet — Yano’s county of birth — and power broker in Moi’s court known by the moniker Total Man, had been out of the cabinet since his ouster as energy minister in 1991 because of pressure from foreign donors.
Yano was admitted to the Roll of Advocates in 1995 yet, as indicated in her application, she was offering legal advice to the government-owned Kenya Industrial Estates in 1993, well before she had graduated. Such was her proximity to power that when she was selected in 2001 as one of the 15 members of the Constitution of Kenya Review Commission, no eyebrows were raised. Only Isaac Ruto — the then vocational training minister — made a disparaging remark about her in parliament to the effect that she could not represent Rift Valley Province in the review and was instead on the team “for gender”. In truth, Yano had been nominated alongside revered women’s leader Phoebe Asiyo to represent the giant Maendeleo Ya Wanawake Organisation.
Once on the review team, Yano quickly established her reputation as a divisive figure early in the constitution review process, leading a delegation of 10 members of the commission to secretly meet with Moi in a move that threatened to split the review team down the middle. Prof. Yash Pal Ghai, who had been named chairman of the CKRC, was negotiating to bring the parallel People’s Commission of Kenya, also known as the Ufungamano Initiative, into the same tent as the parliamentary process, raising fears that the ruling party would lose control of the constitutional review process. Ultimately, the two commissions were merged, bringing the total number of members to 27.
Ghai had held off taking his oath of office, unwittingly creating a power vacuum that would be exploited by Yano and other commissioners. Yano was picked as the chair of the finance and administration committee, which made two key decisions that would sully the commission’s public reputation. The first controversial decision was the purchase of 25 top-of-the-range Nissan Patrol vehicles for commissioners at a cost of KSh121.25 million.
The cost of the vehicles was slightly over a third of its KSh300 million annual budget, but the committee was not done yet. It also proposed a monthly salary of KSh3.5 million for each commissioner, and the purchase of a cellphone for each of them at Sh462,000, inclusive of connections. Although Ghai walked the commission back from the salary demands and cancelled the order for the vehicles once he had taken his oath of office and asserted his authority over the commission, the seeds of discord had already been sown.
Yano showed up at many CKRC public consultations and chaired meetings, but she was not always the face of consensus and collegiality within the commission. She was one of the 16 commissioners who disowned a draft report of the CKRC, and would be more overtly defiant when she, together with Abida Ali-Aroni (now Justice), Keriako Tobiko (now Environment Cabinet Secretary) and Mosonik arap Korir, absented themselves from the launch of the draft constitution prepared by the Commission.
Ghai did not mince his words at that launch, describing some of the commissioners as “some of the most despicable people” he had ever worked with.
After the 2002 election, Yano’s name was proposed for nomination to parliament, but the proposal was shot down. She was subsequently among eight finalists for the position of chairperson of the Interim Independent Electoral Commission. Yano served as County Attorney in Elgeyo Marakwet between 2013 and 2014 before resigning to go into private practice.
Reading from the sample writing Yano has submitted in applying for the positions of Chief Justice and Supreme Court judge, her legal practice has served underdogs deprived of jobs, freedoms and rights, and defended one parliamentary election petition. Before setting up her law practice in Kitengela, Kajiado County, Yano used to run her firm from the mezzanine floor of the KVDA Plaza in Eldoret. Two months into her occupancy, her landlord — the Kerio Valley Development Authority — stormed her premises and closed them down for five hours demanding KSh378,000 in rent arrears. Although Yano applied for an injunction against her landlord in 2002, a ruling would come nearly five years later. The courts have also found for Yano in her personal capacity on several occasions, the most significant ruling being the judgment that allowed her to repossess a five-acre plot of land from squatters and other trespassers in Eldoret municipality.
The website of the Elgeyo Marakwet branch of the Maendeleo Ya Wanawake Organisation lists Yano as its chair. MYWO is the oldest and largest non-profit voluntary women’s organisation working to improve the quality of life of rural communities in Kenya, particularly women and the youth.
Yano comes to the interview with a tacit regional claim to the Supreme Court seat previously occupied by Justice Philip Tunoi, who retired in 2016. A Kalenjin member of the Supreme Court would greatly mollify ethnic anxieties around how any 2022 presidential election petition would be decided, especially in a contest where Deputy President William is an important contender.
Yano graduated with a law degree from the University of Nairobi in 1993 and attended the Kenya School of Law for her postgraduate diploma in law 1994. She is currently studying for a master’s degree in business administration at the Africa Nazarene University.
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