Hon. Justice Francis Kipruto interview for the position of Judge of the Supreme Court of Kenya.

Added: 2026-04-29

[00:00:00]the UK that we could be moving away from the torrent system. There's be a debate as to how much of that we should do.

[00:00:10]But that reflects the tension between uh the attempt to pro to protect public property and the manner in which those who desire to own land must be a little more vigilant or a lot more vigilant in respect to interrogating the history and the root of title. So that is one example that I I gave. Uh I hope I've answered that first part first part first part first part first part first part first part first part first part first part first part of the question.

[00:00:46]>> Sorry if you could perhaps uh go to the second it might help to it the second part.

[00:00:52]>> So how would you balance borrowing?

[00:00:54]>> Okay.

[00:00:55]>> Yes.

[00:00:56]>> Now at what point would you decline from uh using uh persuasive foreign precedents?

[00:01:04]>> Yes.

[00:01:06]Um, one of the places to start is to read a foreign decision alive to the facts that uh the court or that decision intends to resolve.

[00:01:24]One must also be fully aware of the statute and the legislation that the court is asked to interpret the foreign court.

[00:01:37]If it is parallel or reflective or a mirror of um our uh constitution or our legislation, then there could be value in applying the reasoning in terms of resolving a matter that would be before us.

[00:02:01]I say this nevertheless that I think and this is in my interaction with judges from other parts of the country. The Kenyan courts should take its pride of place. We are recognized as a very progressive judiciary with rich uh jurisprudence and uh one that uh reveals amongst the the judges and judicial officers intellectual rigor.

[00:02:34]I suspect that it is from that perspective that a lot of decision I read from the Supreme Court in fact make a lot of reference to our own laws.

[00:02:46]There have been occasion when the Supreme Court has drawn from the wisdom and extremely well-reasoned decisions from the high court.

[00:02:58]very often I think you will find greater value and persuasion from our own judges than looking outside. I think in the same breath when if you ask other judges outside the country whether they should get uh they should draw from persuasion from our courts they will happily be able to do that. So we should be more proud, more inwardlooking and the Supreme Court has really uh given us the path and has Thank you.

[00:03:28]>> Okay. Thank you, judge. And I do agree with you that the dinner management uh matter actually tells the story of the land question we've had over the years in in our country. My second question is that the advisory opinion number two of 2012 the one on uh two3 gender principle.

[00:03:49]So the Supreme Court held that should be progressively realized by majority and uh the then chief justice Munga desented arguing that uh that political right required immediate implementation.

[00:04:07]Um it's over a decade and we are yet to get there as a country. In hindsight, do you believe that uh the 2012 advisory uh opinion was correct? Would you have done it differently if you sat there?

[00:04:28]And uh how would you distinguish rights that should be progressive progressively realized and those that require immediate enforcement?

[00:04:41]>> Okay. Uh thank you.

[00:04:43]um that that advisory opinion uh is one that um reveals a a difficult a very difficult uh matter the decision and I agree with it that um The two/3s agenda needs to be implemented.

[00:05:22]I would think that the majority time has revealed that the majority may have been right because of the extreme difficulties in implementing the two third agenda agenda uh in our political or elective positions.

[00:05:48]There's been debate. Um I I have been in rooms where certain solutions have been given or attempted solutions have been given.

[00:06:01]Many of those solutions will in fact require amendment to the constitution. Even with amendment to the constitution, I'm not I'm not too sure that it is it will still be sufficiently addressed. And I say that there might have been wisdom in the majority decision because the debate some is insincere but very often others are sincere reveals the practical difficulties of implementing the two third agenda. gender parity in elective positions.

[00:06:43]I I would hope that um that uh uh this matter will still find some solution. It might require a uh constitutional reform at the right time when the people of Kenya will have the faith that it is time to reook at certain aspects of the constitution. But what the advisory opinion does very importantly is to set out a debate that the Kenyan people themselves must resolve in whichever manner either through uh legislative or constitutional reform. Moving on to your second question.

[00:07:28]The question the issue of um framing a remedy uh to a constitutional issue giving a chance for progre progressive implementation is um one of those that the country has embraced.

[00:07:49]There might be and I give an example of the Mubel case where the court pronounced itself very clearly that the question of the social economic rights is not just aspirational.

[00:08:06]Those are real rights rights that can be justable.

[00:08:12]uh but it cannot be lost on us and it was the constitution was alive to this that certain uh implementation may require legislative reform that needs to be put in place. Others may require resources to be arranged.

[00:08:30]Uh they will require money say to build houses to acquire land for the landless.

[00:08:39]others will require policy decisions by the executive arm of the government. So in um fashioning a remedy in a matter that is before me, I would be sensitive and aware as to whether they its implementation has certain implications in respect to resource mobilization, legislative and reform and other and policy reforms that would involve other arms of government.

[00:09:22]Uh that is how I'd look at it.

[00:09:24]Nevertheless, where uh it involves other fundamental rights that we require immediate implementation, I have not been shy to do that in the past and I would do it again.

[00:09:38]>> Okay. So there's an argument still on that that civil and polit civil and political rights require immediate immediate realization yet economic, social and cultural rights require progressive realization.

[00:09:50]>> Yeah.

[00:09:51]>> Are you in agreement with that or it depends.

[00:09:53]>> You say political >> civil and political rights >> require immediate realization whereas economic, social and cultural rights require progressive realization. There's been that argument.

[00:10:07]>> Okay. I I'm okay. Um I'm not I'm not too too certain I and uh I've understood it, but let me let me just try let me let me try to address that. Um if you're talking about political rights, say the right to vote, the right to um participate in um a political party of your own choice as a citizen, there might be no difficulty in terms of um uh declaring that or that they need to be immediately uh implemented. In fact, giving a remedy that suspends the enjoyment of such a right would be an antithesis of the spirit of the constitution. The letter in fact of the constitution, not just the spirit.

[00:11:01]>> Okay. Yeah.

[00:11:02]>> Thank you. Lastly, judge, as a Supreme Court, if if if uh appointed as a Supreme Court judge, >> you even right now, I know you're still a member of the legal profession.

[00:11:11]>> Yes. But as a Supreme Court judge by virtue of your office you will shape the culture within the legal profession.

[00:11:20]So how would uh a Supreme Court judge promote integrity and profession professional ethics within the profession and number two promote cross and intergenerational learning.

[00:11:36]Okay, let let me let me start with the last one.

[00:11:42]Um, the Supreme Court is at the apex of the ladder in the judicial structure of the country.

[00:11:57]It is um a court that and I think it has lived to this one that sets or should set the gold standard of practice in terms of pleadings in terms of court appearance in terms of hearings.

[00:12:19]the virtual court, the online court has somewhat uh uh stifled the avenues of learning for the younger generation.

[00:12:34]I've always wondered whether the Supreme Court and if I was a member or included as a member of that court would be suggesting that in fact some of uh its hearings the designated uh at certain times should be physical inviting members of the profession to have a real life experience of a court that operates at that level and with such excellence.

[00:13:11]I do not know whether going forward there'll be opportunity in fact for the court to circuit the country occasionally so that uh there is a feel of that court in Yanza there's a feel of that court in Garisa um and the learning impact that it may have on the younger professions in those parts of the country so yes I think um uh there is uh opportunity there and I'm aware that even the Supreme Court now has set out programs in that respect.

[00:13:49]What would be my role as a as a judge of the Supreme Court in terms of shaping up questions of integrity?

[00:13:56]I I thrive to do this even as a judge now and when I was at the high court uh to conduct myself in uttermost um integrity to demonstrate through my decisions that um I am impartial to um be open to scrutiny.

[00:14:20]I know that there's a question that we routinely as judges or public officers uh open are supposed to open ourselves to scrutiny in terms of our assets and liabilities. We fill these forms regularly on a regular basis.

[00:14:37]Um, one of the ways I think in which integrity of the con of the of the judiciary can be enhanced is each if each one of us as judges are able to explain um our wealth without fear openly.

[00:15:02]Other ways of um conducting ourselves um is to be accountable for what we do both in public and private lives.

[00:15:15]>> Okay. Thank you judge. And uh the bar from my where I practice from asked me to wish you the very best and thank you for the service you accorded them and your bench when you're there. I wish you the best.

[00:15:26]>> Thank you very much.

[00:15:27]>> Thank you Justice Joi.

[00:15:32]Yes. Uh good. It's still good morning, judge.

[00:15:37]>> Oh, good morning.

[00:15:38]>> And the lawyer questions are still continuing. Uh I empathize with you as well, >> but uh we are we we are going to move uh fairly fast.

[00:15:49]Um let me just do a couple of follow-up questions uh which you were asked earlier just to get some clarity. Uh, Commissioner Judge Sichal while asking you about the question of Lucas standai and then we asked you a number of other questions around it had asked whether you think the Supreme Court has restricted access to justice uh with regard uh to interested parties and particularly she mentioned for I wanted to to know I wanted to to know your understanding of the fora matter in that context.

[00:16:29]Okay.

[00:16:30]Uh thank you. I think this this litigation started off before justice um Macau uh in respect to the dress code allowed the hijab uh by the Muslim faith. Um and initially it was between the petitioner I rec I do not recall whether it was one or two petitioners.

[00:16:59]Um but because of the importance of the issues that arose others joined in as interested parties.

[00:17:11]I think to urge that uh the decision would not only affect the petitioner but would affect others as well.

[00:17:29]So in my view the courts in allowing interested parties or an interested party was alive to the fact or the weight of the matter that was before it.

[00:17:45]The matter progressed to the Supreme Court.

[00:17:51]If indeed it is a question of locus and uh whether the interested parties should have been given a greater stay a greater say outside the pleadings that or the case that was pleaded by the petitioner.

[00:18:08]I would have wondered why uh opportunity had not been taken early enough by the interested parties to mainstream themselves as parties so as to argue their matters either by taking up other petitions which would then perhaps be consolidated.

[00:18:25]uh and it and that is why uh my lady it seems uh clear to me that the decision reached by the Supreme Court in that respect does not constrict or limit the place of interested parties and locals in that respect.

[00:18:43]>> Thank you very much.

[00:18:45]>> Um you also had asked uh Commissioner Manz a question as to whether there was a correctness to your answer on experts.

[00:18:53]So let me confirm it was correct >> and the Supreme Court can and has used experts.

[00:19:00]>> Okay.

[00:19:01]>> Um but we we do so very rarely. Okay.

[00:19:04]>> But it you are correct. We have done it.

[00:19:07]>> Um coming back to the issue of FGM and consent. I was trying to understand your your approach. Um, are you suggesting that um, if you're an adult and uh, you understand that cutting off a part of your body is harmful, is it still all right?

[00:19:32]Would we use the same principle for cutting off one's arm or for committing suicide? Is it okay? I want to, so I'll do it. even though you're an adult, I wanted to to to to just understand or whether I didn't understand you correctly.

[00:19:51]>> Okay. Uh my my question of uh uh consent was in respect to whether it was voluntary consent. Um there is of course the other aspect of consent visav whether you can consent to certain things uh within the constitutional framework.

[00:20:17]For instance, in respect to the right to life uh stating and and the the illustration that you give uh in uh regarding suicide, I think that that would be expressly repugnant to the values that we hold and that are in the constitution And the question of whether you can readily acce the cutting off of your hand would fall in that category.

[00:21:00]I suspect at least from my own belief that uh the mutilation involving FGM is similar.

[00:21:15]Thank you very much. Let me come then to my own uh questions. Often the Supreme Court uh finds as a top court, it's a political court uh that we are called upon to resolve questions which are amongst or in between government institutions and sometimes we are confronted to whether we ought to apply the political question doctrine or whether to apply judicial restraint.

[00:21:50]What would your approach be in the balance that is to be reached between the two?

[00:21:59]Is it a political question to be resolved by institutions that are political? Is this a question that can be resolved by judges >> and therefore we should restrain ourselves? What is the balance that is to be achieved?

[00:22:14]>> Okay. Uh thank you.

[00:22:17]the I think there are number of u cases that uh the uh Supreme Court has had to deal with that have demonstrated the tension that you've just alluded to the question for instance um uh that the court had to deal with in respect to the money bill or the f the financer act, sorry, the finance act.

[00:22:53]The court would have to be cautious where questions lie purely within the sphere of executive power which are policy oriented.

[00:23:10]The court would have to be cautious and circumspect knowing or alive to the fact that the role of the court is one to identify whether the matter is in fact justable and should it pass that first hurdle to then address whether the conduct of legislature or the executive infringes or violates the provisions of the constitution. So it would be in a very narrow uh uh aspect in terms of testing the decision of the of the executive or the legislature as to whether in fact it passes uh constitutional master. Another um decision that may demonstrate this is the uh Sonko matter.

[00:24:18]Uh I I do not know whether judge you desented on on the matter but I am aware that there was first a question as to whether the the the matter passed the jurisdiction of handle Huddle. But in terms of the decision that was uh pronounced by the court eventually it was co cognizing that in terms of impeachment matters it is a political question and so for as long as the impeaching bodies the bodies with a mandate to impeach follow the procedure set out if the charges that are laid before the officer to be impeached are those that are set out in the constitution and where they are found within the framework of the charges set out in the legislature then it is not for the judiciary to second guess the merit of uh the bodies who are given that mandate. So I wouldn't the question of marriage would um is one that should be avoided in my view.

[00:25:34]>> Okay. Um in the court also we we find ourselves frequently challenged and I think many courts also of the spir you can have a matter before you where as a judge you can see there is a legally correct outcome but that outcome will end in injustice.

[00:25:56]How should a guy a judge be guided in in in in those kind of circumstances?

[00:26:02]>> Yes. Thank you.

[00:26:04]I think the judges who are in this room will uh no doubt have been confronted with this matter where you can see that your interpretation of the law and the facts before you seem to um lead you to an outcome that otherwise looks injust.

[00:26:31]The the manner I would go about addressing that is once I'm confronted with that um struggle is to be sure that in fact my interpretation of the facts and the law are correct so that in the end if I reach a decision that appears to be injust. It's one that I can live with. And allow me to just uh give you an example. When I was um appointed a judge who appointed 28 of us, I went to Mombasa and many of the matters that we were to deal with uh were in respect to uh sexual offenses, defilement.

[00:27:25]you would be confronted with cases where you think that the the investigation had been properly conducted.

[00:27:33]Uh a conviction should be they should we should return a conviction on appeal law and those matters would disturb the judges. In fact, we used to call one I I would call judge ch would call me. I would call other judges because it's disturbing to see a child of nine defiled. It appears that the truly that may have happened the investigation was botched.

[00:28:07]But in the end in resolving that struggle once I was sure that um the law and the facts could not reach any other result but that supposed or apparent unjust outcome then I would give it up and that would be the end of the struggle and I would implement the law notwithstanding the injustice that it leads to. Then there would be other instances where for instance for example the outcome may be injust but which you can mitigate with by fashioning remedies that amirate the handicap of the party who has to or who is visited with that injustice.

[00:29:04]uh those are two ways I would uh approach it. The third would be to speak very clearly in respect to the injustice that I see that my outcome has reached or my interpretation I would reflect upon it. I would want to be understood that not with notwithstanding an outcome that uh can be viewed as injust I have sufficiently explained myself on the path and how I have reached there where for instance I think they there need to be policy intervention or legislative reform I'll pronounce myself and leave it to the bodies uh left or without remmit to do their bit.

[00:29:57]>> Uh thank you.

[00:29:59]Um the the the judiciary has developed extensive electoral jurisperience.

[00:30:10]Uh, and I'm just wondering whether you can give us examples of how courts have made it easier for dispute resolution and whether or not there are challenges around the way that election disputes are resolved.

[00:30:35]uh what how can we improve uh the way courts do it given that the time frames are limited.

[00:30:44]>> What can you share with us?

[00:30:45]>> Okay, thank you. Um let let me address this uh taking the position that I occupy.

[00:31:03]I am a judge of the Supreme Court and so I would be anxious that the timelines given by the constitution for resolving presential election dispute are extremely tight.

[00:31:20]The rules of the Supreme Court in respect to the presidential election disputes. I think has set out um certain processes that make it easier some sort of tool books tool tool book to allow the judges and that court to deal with the extremely tight timelines.

[00:31:54]For instance, the after the filing of the petition service ought to be on the same day in soft online.

[00:32:07]Physical service of the petition and the respondents has to be within 24 hours.

[00:32:13]The response must be then within 4 days.

[00:32:18]The timelines are tight and somewhat is an attempt to balance giving sufficient opportunity to the parties to make their cases yet giving some uh space for the court to hear and determine the matter in a way that they can sufficiently interrogate the the dispute.

[00:32:46]Then there would be and what I thought was a an ingenious manner of dealing with interlocatory applications. the filing of introductory applications and the end of the process where uh alongside um the final responses they be dealt with at case management level the decisions be um granted if it is preempt reasons can be granted late can be given alongside the main decision. The other manner I think that has enabled the court to carry out its mandate within the tight uh uh timelines is to give a decision and then the reasons later.

[00:33:45]Um I have known that in certain jurisdictions the reasons can come 6 months, 7 months, 8 months later but the decision the the time the Supreme Court has set on itself and the rules that the decisions must be um I think within 30 days. So there's no anxiety on the parties to know their reasons. Yet it gives sufficient time for the judges to explain themselves fully on what is often very contested and uh uh extreme public interest issue uh matter. So I can see the the the the that the rules over time that the rules that have been um put in place can assist the court in dealing with those time frames. Uh thank you very much. So you see it's very tight uh the time frames.

[00:34:46]>> Yes.

[00:34:46]>> And uh therefore you can imagine uh when we are listening to a presidential election petition we are hardly sleeping.

[00:34:55]>> Mhm. and we are working throughout.

[00:34:58]Do you think that you have the not only the courage but the character to manage to work under such intense pressure, lack of sleep, um working uh with documents coming in, you know, doing rulings overnight.

[00:35:21]Do you think that you in your experience this is this job that you have applied for in those circumstances that you have the character to manage under such high pressure?

[00:35:35]>> Thank you. I I in in applying for this for this position, I am acutely aware that uh the question of presidential elections is a cyclical affair.

[00:35:58]It invariably happens every 5 years. and I've watched the workload that the judges must deal with and I'm obviously sympathetic. Nevertheless, I think in my um the the the courts the other courts which have been called upon to deal with election petitions are also under certain strict timelines.

[00:36:27]the resolving quickly interlocatory matters.

[00:36:35]In uh my experience at the both at the high court and the court of appeal, I've had to deal with those matters. I have not had any difficulty at all.

[00:36:47]I I think I have the endurance and um to carry out the the the job notwithstanding the difficulties that the timelines putend.

[00:37:06]uh in doing so I have thought of efficient ways in uh dealing with timelines is to be overly prepared uh make use um of research assistance where it is available um to prepare myself even mentally of the task that would be ahead of me.

[00:37:34]I I believe that I would have no difficulty at all.

[00:37:36]>> Thank you. You have been in a collegial court. You are in a collegial court.

[00:37:41]How do you manage when you're dealing with difficult uh matters when uh you need to discuss I you had a descent in the BBI uh so obviously you're not able to persuade your colleagues on one or two issues but how how how what is your what are the the necessary elements of collegiality when discussing hard cases.

[00:38:14]>> Mhm.

[00:38:16]Um when you sit in um colleial court or a multi-member bench, you realize that uh members of the bench, the very diverge and opinions people would have on uh or take in matters.

[00:38:43]Sometimes when it's a difficult matter, there would be areas where there's um deep disagreement on legal positions.

[00:38:56]Yet that should not because of the divergent and uh because you disagree with the position taken by your colleague that should affect the manner the manner in which you relate.

[00:39:12]One should be open to persuasion.

[00:39:17]The manner in which you look at a matter now may change and you must have a listening ear. You must have an open mind where you eventually disagree with a position and you hold that you must uh express yourself then you do so. you must do so respectfully.

[00:39:44]Your decision should not be a critique of your colleagueu's decision.

[00:39:50]You must be measured in your language.

[00:39:52]You must be respectful and um in fact in where you have to render separate decision you might have to explain yourself uh where you uh departing from members of your court.

[00:40:19]The question as to uh whether there's a difficult question should be one that the judges sitting in that bench should take as a collective um challenge which they must in a collaborative manner uh deal with. and and that calls for for tolerance and it calls for flexibility.

[00:40:49]Yet uh at the end of it, if you must disagree, then you must do so respectfully uh and in a manner that um enders to the uh principle of coil coil coleality.

[00:41:08]>> Uh thank you. One final question.

[00:41:11]uh in the Supreme Court we have suffered from the perennial problem of quorum challenges.

[00:41:17]>> Mhm.

[00:41:18]>> Because the quorum of the court is five, the number of the judges is seven.

[00:41:23]Uh what what advice what how how what how would we resolve this problem that has been with us from the beginning of the from the start of the court?

[00:41:38]the the question of quorum and >> yeah the question the challenges of quorum >> yes um the number of judges that um make up the Supreme Court is uh static and it is within the constitution the quorum is five um there will be times when um a judge is um appears to be conflicted in a matter and unwilling to or would otherwise be reluctant to hear and determine a matter yet cognizant that of the small number of judges, questions of recusal of judges, questions of um whether on application or that uh judges would otherwise make on their own motion requires um a requires to be done with a lot of caution. I am aware that uh the court has in its juristprudence discussed this matter and have come out with the principle of the duty of a judge to sit.

[00:42:59]Um I think this was in the case one of the ry cases the duty of um of a judge to sit. So aware that um of the few numbers the court in um addressing the questions of recusal uh must not approach it like any other courts would and and I think this juristprudence that has been channeled out sufficiently deals with it.

[00:43:37]>> Uh thank you very very much judge CJ.

[00:43:40]And I am done. Thank you.

[00:43:41]>> Thank you. Thank you very much. We now moved on to Commissioner Rande.

[00:43:46]>> Uh thank you, Chair. Uh good morning once again, judge.

[00:43:50]>> Good afternoon.

[00:43:52]>> It is now afternoon. Sorry. Good afternoon. We finally get to move to the less technical and a lot easier segment of your interview.

[00:44:03]Yes. Uh I have a performance report here from Dispo and uh I hen to add that I'm having a bit of challenges and I'm sure you're familiar with uh the challenges we may be facing especially evaluating the performance of a collegiate bench but I'll just give a summary of uh because it's quite lengthy and in the interest of time I don't want to tire you with the many details I'll just give a summary of what uh they have mined out of the work that you have and and uh explain uh the approach I've taken in sort of analyzing it and then you can tell me what you think about it and also the challenges that you see. So essentially what uh uh has been done here is that the work you have done the benches that you have sat in in various courts uh the output in terms of merit resolutions has been compared to the output of the entire court. So they've taken into account the number of benches you've sat in over a period of 3 years.

[00:45:04]Uh the merit resolutions visav compared to the merit resolutions of those courts where you sat. So in total I see you have sat in 14 benches.

[00:45:18]Yes, that's what I have. Uh 14 benches and out of the 14 benches the merit resolutions it's only in three benches. No, let me say three occasions, not three benches but three occasions when uh the output compared to the total output of the particular court is higher than 30%.

[00:45:42]I don't know if you understand that is now my own analysis.

[00:45:44]>> Mhm.

[00:45:45]>> Yes, it's higher than 30%. So that three out of 14 times your contribution to the total output of the station has been over 30%, the rest have been below.

[00:45:57]Now I've already uh expressed the challenges uh that are there in evaluating the performance. The one that is so obvious the performance of an individual quite obvious but then now as a bench maybe you can share with us if because you are the issue and you understand the dynamics whether that is a safe approach and if you want to comment on that on the report I have just shared you can also do that.

[00:46:20]>> Okay. Thank you. I uh that report was shared with us a few days ago.

[00:46:26]>> I looked at it. I >> uh I was I was surprised by the story it attempted to to tell.

[00:46:35]>> Mhm.

[00:46:36]Now I would invite you uh commissioner to look at uh my output when sitting in Kisumu and and and I do so because of something I want to explain.

[00:46:52]>> Mhm.

[00:46:54]>> When I was uh posted to Kisumu, we were three judges.

[00:47:00]>> Mhm.

[00:47:01]>> At any one time. And so uh we sat together as three judges all the time.

[00:47:14]It is then easy to judge the performance of that bench because it is constantly and ever manned by the three judges sitting together. Mhm.

[00:47:30]>> Other than on occasion when one is on leave or for any other reason away.

[00:47:37]Now it will shock you that I have sat on 14 benches.

[00:47:41]I mean this is when I moved to Nairobi where uh we don't have fixed benches. Secondly uh where I have had to be on relieving duties either in Mombasa Malindi or elsewhere.

[00:47:59]So the statistics that you see are not unique to me as a judge. uh you would not be unique to me but would be reflective of the somewhat distorted picture that it gives when a judge has to be finds himself sitting today with judge A then tomorrow with B where the the benches are not constant.

[00:48:29]What in my respectful opinion is that um there might have to be remodeling of of the manner in which uh the outputs in uh where judges don't sit constantly as fixed benches uh will need to be fashioned.

[00:48:55]What are the suggestions you'd make for instance in what way? Fashioned in what way?

[00:48:59]>> Um I think there would have to be a discussion first with with the members of the court of appeal whether the benches don't need to be fixed. But if in the end if that cannot for some reason be uh feasible um no suggestion comes to mind.

[00:49:32]>> No suggestion comes to mind because it is very difficult to judge the individual outcome of a judges sitting in a multiple bench. But that might I do not know whether that it will be open for that to happen by uh looking at um the individual output and what that does to a collegiate court the implications it has. It's not an easy conversation to have and and I think it will require the output of the entire court and other stakeholders.

[00:50:09]>> I appreciate that. That's why I gave the disclaimer earlier that when it comes to the individual performance that is not an area so far we can venture >> and that's why the performance we are looking at is the performance of benches.

[00:50:22]>> You mentioned the Kisumu uh the period you served in Kisumu. I have the statistics of Kisumu as well. Uh you were three judges permanently or did you have occasion to have different benches where you did not sit in?

[00:50:35]>> Occasion occasion >> you there were some benches that >> Yes. Yes. when when one member would be on leave.

[00:50:40]>> Yes.

[00:50:41]>> But um a substantial time sitting together the the three of us.

[00:50:48]>> Yes.

[00:50:49]>> Okay. That is what I was explaining earlier when I said the output of the benches when you specifically sat was now being compared to the output of the court itself including the occasions when you did not sit.

[00:51:02]>> Mhm. But as you say it's it's a bit difficult and I think that's a the other bit of the conversation we can have on another date but that is what I have and I appreciate the challenges. So the other question I wanted to ask uh judge concerns performance in general.

[00:51:21]Uh the carrot and stick approach is very common in most jurisdictions.

[00:51:26]I was just reading somewhere about uh a very interesting uh scenario in the Spanish judiciary.

[00:51:33]Apparently uh in the Spanish judiciary when it comes to performance their carrots and stick approach is such that it actually affects your salary so that you have a bit of your pay your remineration as fixed and then there's a bit that is pegged on your performance.

[00:51:49]you sort of earn a bonus so that if uh you do you meet 100% of your target then you get a bonus of 3% of your pay.

[00:52:01]If you exceed by about 20% you get 5%.

[00:52:06]And of course if you go below 80% of the target you suffer a five until recently you suffer a 5% cut that is in the Spanish judiciary.

[00:52:18]uh also in the US there there's a sanction in the fact that uh your performance results for all judges are made public and you know in some courts I mean they get elected to those positions so that it is possible that once your performance has been displayed out there you may not get reelected back to the court now looking at our scenario back here at home would you say that our approach is a carrot and stick affair given our performance appraisal system Uh so thank you. Uh first let me start by saying that um before the performance u the PMU was uh rolled out there was an engagement of stakeholders.

[00:53:04]>> Mhm.

[00:53:05]>> Um one of who were uh members of uh the judiciary and judiciary staff in the report that was produced by Justice Musinga. question of reward uh took some prominence.

[00:53:20]>> Mhm.

[00:53:21]>> I think the majority decision majority view sorry majority view was that um the those who did well needed to be rewarded.

[00:53:36]>> Mhm.

[00:53:38]I think less pronounced in that debate is whether those who did not do well needed to be censured.

[00:53:46]Again, less pronounced was what is the manner?

[00:53:52]What is the carrot?

[00:53:54]Is it monetary? Is it recognition?

[00:53:58]Uh is it acknowledgment?

[00:54:03]I think that uh in the end the manner in which we have used the carrot is one that has been agreed through stake through engagement by those it affects.

[00:54:23]the manner of um acknowledging uh which the Chief Justice does often uh outstanding members of staff, judges who have been exemplary is as I see it uh effective way of rewarding excellence and good performance.

[00:55:00]Respecting the question of the stick, the manner in which we do it, it needs to be sensitive. It must not be in a way that um in fact kills the spirit of those who are underperforming.

[00:55:18]It must be one that balances the understands why someone is underperforming.

[00:55:28]One that um uh encourages and sets out measures for improvement.

[00:55:36]Yet one that the underperformer must be let to know that is not pulling uh his or her weight in uh service delivery or in carrying out their functions. So generally yes I would agree I think it is effective enough.

[00:56:00]There might be uh times when we will change that. I am aware that for instance the because I have jenzes in my house they might view these very differently. They are very uh open about certain things. They will tell you when you are wrong when you're right. It might reach a point where they will say if you're if you're not performing you take a pay cut. If you're performing you are awarded or compensated in monetary.

[00:56:31]I I I am sure that a day will come when that conversation will be on the table.

[00:56:37]>> Yeah.

[00:56:38]>> Yeah. Now uh now that you bring out that angle and uh taking your answer in totality essentially you agree that our performance our approach to performance appraisal is the carrot and stick affair.

[00:56:53]uh out of the proposals you've made or even the observations you've made, it's not really worked in terms of motivating performance. The stick aspect that is has not really worked in terms of motivating performance.

[00:57:09]You have scenarios where someone feels infer so what else is there to work hard for? So they don't work hard.

[00:57:17]>> Mhm. As an institution, there's every effort to facilitate everyone. The remuneration is not so bad. Maybe not ideal, but not so bad. But still, we have those scenarios of people who simply will not pull their weight no matter what. So, around here, we've had conversations around article 168 uh sub article 1D, the question of incompetence. The argument being failure to meet performance targets is incompetence. I don't know what your view will be about that. It's rather controversial, but I would want to hear what you think about it.

[00:57:51]>> 168 1681D basically incompetence as a ground for removal.

[00:58:03]Okay. Yes.

[00:58:07]You know, commissioner, I thought you were talking generally about judicial officers and the judiciary staff, not just judges. So in respect to to um judges I I I think the constitution speaks clearly and loudly.

[00:58:25]>> Mhm.

[00:58:26]>> Um I'm trying to recall whether that section has been um uh used to set up a tribunal which investigates a judge. It doesn't. I'm not too sure it has.

[00:58:45]>> Not strictly. Strictly speaking, no.

[00:58:46]>> Yes, >> it has not. But it's a thought.

[00:58:48]>> It's a thought.

[00:58:49]>> I just wanted your take on it.

[00:58:50]>> Yes. Yes. I I I I I I given the criticism that the judiciary has to deal with daily uh online when you meet people when you have interactions about certain um certain uh whether they we are suffering a question of competence and capacity.

[00:59:19]I think I'd leave it to the commission to have that debate.

[00:59:24]Um the chief justice as the head of the judiciary and also as the chairperson of this uh commission they might be need to see whether in future it can be invoked.

[00:59:44]But the the caution perhaps is that how does one measure incompetence?

[00:59:52]Um where it is obvious and where it is clear then I do not see why it cannot be a measure or a reason for removal of a judge. Otherwise to say it isn't is to say that uh that provision of the constitution has been put there and it is idle and it should never have been uh but I I the challenge is to the commission. The challenges to the commission we we will give our views when invited.

[01:00:27]>> Okay. Thank you. Thank you Jud and I wish you will.

[01:00:30]>> Thank you Commissioner Zirani.

[01:00:36]Thank you, Honorable CJ. Uh, good afternoon once again, Judge.

[01:00:41]>> Good afternoon.

[01:00:41]>> It's okay. You can go ahead and take your water.

[01:00:49]>> Yes. Thank you.

[01:00:50]>> You're good to go.

[01:00:50]>> Yes, I am.

[01:00:51]>> Okay. I will start you off with a quote and then you'll tell us your understanding of the court and give us your views on the same uh now that you want to ascend to the Supreme Court.

[01:01:04]It's a quote by a US uh Supreme Court judge and he says the Supreme Court is not final because it's infallible but it is infallible only because it is final.

[01:01:16]The Supreme Court is not final because it is infallible but it is infallible only because it is final. What do you understand by this quote? And maybe you give us your views on the same Okay. Um, now the Supreme Court is the apex court in the country.

[01:01:46]It makes uh difficult uh decisions with farreaching consequences.

[01:01:54]It speaks with authority.

[01:01:57]It sets precedence.

[01:02:00]Now notwithstanding that it is a final court, there will be occasion when a further reflection of the a decision made today reveals a rethink.

[01:02:24]When that occasion arises and uh they might be many or few, the Supreme Court must reflect as to whether a mere change of mind should lead to departing from a past decision it has made.

[01:02:50]This is because as the apex court cognizance of its importance in that ladder, it is expected that the Supreme Court will have given deep thought to the decisions it makes and there shouldn't be too much occasion for revisiting a decision made.

[01:03:15]This gives stability to the law.

[01:03:20]It allows members of the public there's then predictability as to organize themselves knowing that this is the position of the law on certain in certain aspects.

[01:03:37]So yes, the Supreme Court is not infallible.

[01:03:46]And this is not just in respect to the Supreme Court of Kenya. In America, for instance, on the question of the abortion question, Ro versus Wade, there's been there had been immediate debate as to whether the judges themselves were right or wrong in that matter.

[01:04:06]and and the debate can be as soon as the next day or the week after. But I think the position that the Supreme Court took was that there's value in stability.

[01:04:17]Let a matter settle.

[01:04:20]Let there be widespread debate before you change your mind on the matter. I say this nevertheless aware that if there is a matter that is glaringly a wrong position then the Supreme Court should be able to to re to um presented with a situation which where it uh requires to rethink rethink its uh its position then it should be it should do so. But it it should not be within reviewing the matter itself.

[01:05:00]Now when the second part was that was if you could just say that the quote again.

[01:05:05]So >> the second part was your views and and I I think you've already given that what you think of the >> quote. This the second aspect of the quote.

[01:05:15]>> Uh the court says I read the quote again.

[01:05:17]>> Yes please.

[01:05:18]>> Okay. The Supreme Court is not final because it is infallible, but is it is infallible only because it is final.

[01:05:26]>> It is infallible only because it is final.

[01:05:39]I think that um the when you're placed in the position where you have the last word uh and where your word is the law in certain respects.

[01:06:02]It puts you as well in a position of vulnerability.

[01:06:08]Uh because when you make a decision that eventually revisited many years later is one that you should not have made. Uh then you did not have the opportunity for an immediate second look, but you've had yourself to deal with it later.

[01:06:27]I've I've tried to thread the needle there. I'm not sure. I've done it. Yeah.

[01:06:32]All right. Um, my second question, please describe a situation in your career where you had to take a position in a judgment, ruling, or public stance that conflicted with your personal beliefs, your political views, your personal and professional relationships, or your social environment, and tell us how you handled the situation, and perhaps any lessons you learned from the same.

[01:06:57]>> Mhm.

[01:06:59]um you you'll allow me not to give specifics because I I don't to reveal who I have disappointed and who I have not >> or to really if you'd allow me to >> to pass that on.

[01:07:14]>> Yes. No, no, no. But I I want to say how I I I I could possibly have dealt with it.

[01:07:19]>> Okay.

[01:07:21]Um I >> I've had absolutely no difficulty And because in respect to the opinion of others, I have tried to be clear in my views as to why I arrive at a certain decision.

[01:07:49]I shan from explaining myself even when invited by those who thought that I should have gone a different way in a matter.

[01:08:03]I invite people to look at my judgment and to interrogate it. It's slightly different where you have a eternal conflict where your decision goes against what you strongly feel about. I haven't had um many of those and I take it to be different from the situation asked by commissioner uh lady justice joinu in respect to where the outcome of the decision or the reading of the law and facts is not in conssonance with your sense of justice.

[01:08:48]>> Okay.

[01:08:49]>> Yeah. Finally, for me uh it would be a followup from Justice Joi's uh question on uh where you do not agree with members of your bench when making a decision. Should a Supreme Court judge write descending opinions or does uh descent undermine institutional collegiality and the court's legitimacy?

[01:09:13]Maybe you would also tell us what the implications of writing this descent would be.

[01:09:19]Thank you.

[01:09:21]Um the a judge um ought to write a descent where they feel strongly that it is required.

[01:09:34]It it must not be on on minor what one would say um disagreements on insubstantial issues.

[01:09:46]The value of a descent is that it invites a more holistic debate on a matter.

[01:09:55]It brings out different perspectives regarding an issue and no doubt u a good thing for the growth of of Jewish prudence.

[01:10:07]Um is it is descent then one that um is in conflict with collegiality?

[01:10:20]Not at all. In fact, if you have a strong view which you refuse to express uh in an opinion when you ought to then it does not you're not being open about your position descends when they are properly worded and where indeed there's occasion real occasion for or need for disscent can enhance collegiality.

[01:10:56]As judges, we should be able to express uh the differences of opinion freely and openly, candidly, and knowing that uh we are all members of the court accountable jointly to the people of Kenya. And uh if a descent will enrich Jewish prudence then I'll take it that in fact you are promoting collegiality.

[01:11:26]You are enabling your brothers and sisters sitting in the same bench to be able to be more accountable to the people of Kenya.

[01:11:34]>> Okay. Would there be concerns if the the descents were coming from one judge and if they were frequent?

[01:11:42]uh it it might be a reflection of judicial philosophy.

[01:11:49]In fact, if there is a judge who holds a certain judicial philosophy and is uh feels very strongly about that philosophy, dissenting in circumstances which reflects that philosophy is a good thing. It is an attribute to the judge in respect to the consistency in which the approach matters.

[01:12:16]>> Okay. Thank you, judge, and I wish you well.

[01:12:18]>> Thank you.

[01:12:19]>> Thank you, Commissioner Kisato.

[01:12:24]>> Thank Thank you, honorable chair, and welcome again, judge.

[01:12:27]>> Thank you.

[01:12:28]>> I want to take you to a softer area now that you have sat on that seat for over 3 hours.

[01:12:35]>> Oh my.

[01:12:36]>> But uh we are not very far from concluding now.

[01:12:40]Um could you tell us what ethical challenges might a Supreme Court judge face and you could also uh share with us uh your proposals on how to overcome such challenges in the event that you are successful in this bid.

[01:12:59]ethical ethical challenges.

[01:13:10]Um over time the judges in the past those who've gone before us have developed certain principles that try to put us as judges in the straight and narrow the starting from the Bangalore principles and then the for us the code of conduct when you're faced with certain ethical challenges, I think your gray book ought to be the code of uh conduct.

[01:13:51]That should be the starting point to see how to address those questions.

[01:13:57]That that would be my short answer. Now um uh there's a question you were asked earlier on by commissioner on performance and I would want to hear how you will deal with a situation where you are part of a bench where one judge consistently delays judgments uh of course um causing a delay in delivering of justice. What steps would you take?

[01:14:26]Uh thank you.

[01:14:30]The one there are two ways of addressing this and it might depend on the position you take in that bench. If you are the preciding judge in the bench, one of your responsibilities is to whip up uh members of your bench in terms of performance of their work. If I was the preciding judge, it it it might be easier for me to uh remind my colleagues who are falling back in a respectful manner and how to deal with delayed judgments.

[01:15:10]It seems nevertheless that the a better way might be to set out together as colleagues certain a framework for checking on each other as to when one falls uh behind. You could agree that um a manner of reminding one another as to a decision that has delayed um so that the reminder is not seen as essential. is not seen as disrespectful but the system that you have prescribed yourself to itself reminding you that you are underperforming the it it's may seem to be a difficult question but if you um do it in a respectful way and uh trying also to understand when occasion when they will the real difficulty or real reasons why a decision has been delayed. If you try and interrogate it, then you might find that you are able to deal with it. I know for instance that there are times when uh a judge for some reason has been unable to ch out a decision either out of illness or out of the complete difficulty of a matter and has discussed it openly with members of the bench and one other judge takes up the the the the task. So there there are many ways of dealing with it.

[01:16:47]>> Mhm.

[01:16:47]>> Yeah. Thank you.

[01:16:48]>> Okay. Now, article 232 of the constitutions uh calls for both equity and meritocracy.

[01:16:58]How would you resolve a situation where affirmative action objectives appear to conflict with this uh with a strict merit base?

[01:17:12]the the the provision of a affirmative action in the constitution is a recognition of um historical reality.

[01:17:26]And so the framers of the constitution were deliberate about addressing certain inequalities.

[01:17:40]they be gender, regional, ethnicity and so forth and the provision is there deliberately in the law in the in the constitution to deal with that.

[01:17:55]The question would be whether in um implementing affirmative action whether it should always trample on uh on merit. It's a balance that one has to um uh to work because the constitution does not have conflicting provisions.

[01:18:25]They must be uh implemented in a manner that is harmonious. Then one supports the other.

[01:18:33]If I was on the implementing body, I would have to try and devise a manner in which to uh reach strike a balance.

[01:18:46]For instance, in respect to um and this is one way in respect to uh whether someone falls short of merit yet there's a question of um affirmative action. I think it would be wrong to um only apply the question of affirmative action when it is glaring and it is not explainable.

[01:19:15]uh that uh a person who falls so much short of merit should be given a certain position.

[01:19:23]The it's a difficult question but but one must bear those parameters in mind.

[01:19:31]>> Okay.

[01:19:32]>> Thank you.

[01:19:32]>> Thank you. I wish you well judge.

[01:19:34]>> Thank you. Right here.

[01:19:40]>> So it's afternoon now.

[01:19:42]>> Yes.

[01:19:44]Are you tired?

[01:19:45]>> No, no, no.

[01:19:46]>> Yes, we can do a little bit more.

[01:19:51]So, what is the role of president at the Supreme Court and what factors lead to possible revision of the same?

[01:20:01]The role of president.

[01:20:04]Now the the manner in which the constitution sets out the role and mandate of the Supreme Court.

[01:20:17]It um declares very clearly that the Supreme Court, the decisions of the Supreme Court are binding to all other courts and um once the Supreme Court has made a a decision in respect to a matter then the other courts are obliged to follow uh the principles in that decision.

[01:20:47]The value of precedent, I may have mentioned this earlier, is that it brings um predictability on the law so that um one is able to understand their obligations, their rights and uh can be able to predict almost accurately that um a question I put before the courts, could we either go this way or the other I don't know that I have addressed your second the second aspect.

[01:21:23]>> Yes. Uh or we can leave it.

[01:21:27]>> Okay. Sorry if I I don't want to leave anything unturned.

[01:21:31]>> Uh >> yeah. The second aspect >> I was just wondering how for how long is it valid?

[01:21:38]>> How long >> is it a tunnel or what factors could lead into such division?

[01:21:42]>> Yes. Um, if if you'd allow me just to repeat myself, I think the the Supreme Court should be slow in uh deviating from its past decisions unless there's extremely good reason and and that calls for a heavy responsibility of the judges of the Supreme Court so that they are careful that the decisions they make can stand scrutiny and can stand the test of time.

[01:22:23]>> Okay.

[01:22:26]All right. Then um what does judicial independence mean to you? Judicial independ uh judicial independence.

[01:22:41]There might be two limbs to this.

[01:22:45]Indeed, there are two limbs to this. The question of institutional independence which uh commissioner deputy chair uh this commission is very important in terms of um um safeguarding institutional independence would mean that um the recruitment of judges and the work of the judic JC is truly independent. the funding of the judiciary and so forth. Those that speak to uh the institutional independence. Then there's the individual independence of judges.

[01:23:27]Uh one that is safeguarded by um our tenure of office.

[01:23:34]Uh the manner in which we are recruited and our solemn oath of office not to uh be influenced in any manner.

[01:23:46]uh by external factors in the manner in which we discharge our duties.

[01:23:52]>> Okay. Thank you. Thank you.

[01:23:54]>> Thank you very much.

[01:23:57]>> Thank you very much and judge and commissioners. I think this now brings us to the end of a very long interaction and deliberations with you this morning. Um but before we finish, we always give a candidate also an opportunity to engage us. So the floor is yours.

[01:24:22]>> Yeah.

[01:24:24]Thank you.

[01:24:26]Can I just uh if you'd allow me just to take this opportunity to to to thank you once more for this chance uh that uh the commission has given me. I am also aware that uh there'll be people who will be following on YouTube and just allow me uh my lady the chief justice uh to just thank um you know in a special way members of my family >> and um all the colleagues particularly the supreme at the court of appeal who see me as um the quiet team member lifting his weight quietly in a corner >> and needed to be urged on to apply for this esteemed position. Let me thank them very well. Very much. Sorry, a little emotional there.

[01:25:38]Thank you very much judge. On behalf of the commissioners, we wish you well. Uh we wish you success in all your endeavors. You are one of us. Uh whichever the case. Uh therefore we like to really encourage our candidates to keep up the hope. Uh I think now we are finished. You changed