The enactment of the 2010 Constitution ushered in a new judicial system in Kenya with the establishment of the Supreme Court as the supreme court of the land.
In what was a change from the previous court system, the architects of the 2010 Constitution instituted an independent judiciary headed by a Chief Justice who is also President of the Supreme Court.
Since its inception in 2011, the court has been placed under different directorates and sets of judges. While most of them left office after reaching the legal retirement age, the exit of some notable judges has been marred by controversy.
Undated handout image of former Chief Justice Willy Mutunga during a court seat while serving as Chief Justice.
CJ Willy Mutunga
Chief Justice (Retired) Willy Mutunga made history as the first Chief Justice under the 2010 Constitution. Mutunga held the post for four years before retiring in 2016.
It should be noted that Mutunga was part of the six-judge bench that confirmed the election of President Uhuru Kenyatta and his deputy William Ruto in 2013. He also established the office of an ombudsman in 2011 to deal with wrongdoing by officials judicial.
Apart from his time as head of the judiciary, Mutunga’s contribution is clear from the role he played in the process of drafting the 2010 Constitution.
After his retirement, the Commonwealth appointed him special envoy to the Maldives to offer advice on constitutional reforms and democracy. In addition, Mutunga has published comments on issues relating to the maintenance of the rule of law.
As a distinguished jurist, Mutunga has lectured publicly at various law schools in Kenya and in Africa at large.
Nancy Baraza was among the pioneer justices of the Supreme Court after its creation. Baraza was appointed Deputy Chief Justice in 2011, where she served alongside Willy Mutunga.
However, her term was cut short after a scandal erupted with accusations that she physically assaulted a security guard at a popular shopping mall in Nairobi.
The allegations led to an inquiry into eligibility to hold the position. Eventually, Baraza resigned as associate chief justice in 2012, less than two years after his appointment.
Baraza, who holds a degree in philosophy (PhD) in law, is also a lecturer at the Faculty of Law, University of Nairobi.
Judge Phillip Tunoi
Among the highlights of his tenure as a Supreme Court justice is the 2013 presidential petition where he judged.
He also tried the case of former governor Ferdinand Waititu who challenged Evans Kidero’s victory in the 2013 governor’s contest.
This case, however, would come back to haunt him after allegations emerged that he received a Ksh 200 million bribe from Evans Kidero. This scandal was followed by an investigation into the matter before his retirement.
The report of the Judicial Service Commission (JSC) Board of Inquiry, however, stated that there was no evidence of gross misconduct and as such the petition lacked sufficient grounds to result in his removal.
Outgoing Chief Justice David Maraga at the Supreme Court (undated)
CJ David Maraga
After CJ Willy Mutunga retired in 2016, his replacement called for a man who could step into his shoes in upholding the Constitution and administering justice. The JSC has chosen former Court of Appeal judge David Maraga as its rightful successor – a position he held until 2021.
The incendiary judge is remembered for his tough stances on the independence of the judiciary which in some cases put him at odds with President Uhuru Kenyatta.
Maraga was part of the bench that overturned the 2017 election results – making history as the first-ever Supreme Court to overturn a presidential election.
He also objected to President Uhuru’s decision not to include some judges in the list of nominations despite a recommendation from the JSC. Maraga also called for Uhuru’s impeachment for refusing to appoint the 41 judges and ordered him to dissolve parliament for failing to adhere to the two-thirds rule.
Justice Jackton Boma Ojwang was also among the inaugural Supreme Court justices. Along with other judges, he ruled on petitions for the 2013 and 2017 presidential elections during his time on the Supreme Court.
Ojwang’s last day in office was surrounded by a myriad of allegations, among them a conflict of interest.
A tribunal set up to investigate his conduct, however, acquitted him in a report presented to President Uhuru Kenyatta.
The name of retired Justice Kalpana Rawal also stands out in the history of the Supreme Court of Kenya. Rawal took over as the country’s second deputy chief justice following the resignation of Nancy Baraza.
In the lead up to her release from office, Rawal was embroiled in a fight between her and the judicial employment body, JSC.
Rawal argued that she was employed under the dictates of the Constitution and as such her retirement age should have been 74.
The Supreme Court has issued a judgment officially setting the retirement age for lawyers at 70 years.
Acting Chief Justice Philomena Mwilu and outgoing Chief Justice David Maraga at the Supreme Court on January 11, 2021.