G.B.M. Kariuki v Director of Criminal Investigations, Inspector General of Police, Attorney General & Judicial Service Commission [2016] KEHC 3560 (KLR) | Fair Administrative Action | Esheria

G.B.M. Kariuki v Director of Criminal Investigations, Inspector General of Police, Attorney General & Judicial Service Commission [2016] KEHC 3560 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

PETITION NO.  340 OF 2016

IN THE MATTER OF THE CONSTITUTION OF THE REPUBLIC OF KENYA.

IN THE MATTER  OF ALLEGED  CONTRAVENTION OF RIGHTS  OR FUNDAMENTAL FREEDOMS  UNDER ARTICLES 1,2,3,10,19,20,21,22,23,24,27,28,41,43,47 AND  50 OF THE  CONSTITUTION OF KENYA.

AND

IN THE MATER OF SECTIONS 3&4 PART II, FIRST SCHEDULE   OF THE JUDICIAL SERVICE ACT NO.  1 OF 2011

AND

IN THE MATTER OF THE APPOINTMENT TO THE OFFICE OF THE CHIEF JUSTICE OF THE REPUBLIC OF KENYA AS PRESCRIBED UNDER ARTICLE 166 OF THE CONSTITUTION OF KENYA.

AND

IN THE MATTER OF CERTIFICATE OF GOOD CONDUCT

AND

IN THE MATTER OF HONOURABLE   JUSTICE G.B.M. KARIUKI

AND

IN THE MATTER OF DOCTRINE OF REASONABLENESS AND PROPORTIONALITY

AND

IN THE MATTER OF THE DOCTRINE LEGITIMATE EXPECTATION

AND

IN THE MATTER OF THE INHERENT JURISDICTION OF THIS HONOURABLE COURT AND THE GENERAL PRINCIPLES OF THE NATURAL JUSTICE AND THE RULE OF LAW

AND

IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013.

BETWEEN

HON. G.B.M. KARIUKI…………………………………1ST PETITIONER

VERSUS

DIRECTOR OF CRIMINAL INVESTIGATIONS…..……..1ST RESPONDENT

INSPECTOR GENERAL OF POLICE……………………2ND RESPONDENT

THE HON. ATTORNEY GENERAL…….….……………...3RD RESPONDENT

THE JUDICIAL SERVICE COMMISSION………..……...4TH RESPONDENT

RULING

1. By a humble  petition dated 9th August 2016 and filed in court  on the same  day, the petitioner Honourable  Justice   G.B.M. Kariuki judge of the Court of   Appeal petitions  this court seeking  the following  orders to issue against the Director of Criminal Investigations, the Inspector General of Police, the Hon Attorney General and the Judicial Service Commission:

A declaration that the actions  by the respondents violated the petitioner’s  right to an administrative  action that  is expeditious, lawful reasonable   and procedurally  fair;

A declaration that the 1st respondent  breached the values and principles  of  Article 110 of the Constitution of Kenya  2010;

A declaration that the 1st respondent violated the petitioner’s right to receive the certificate or good conduct.

An order directed at the 1st and 2nd   respondents, their agents, officers or employees compelling the issuance of a certificate of good conduct to the petitioner.

A declaration that the 1st respondent caused damage  to the petitioner in stifling his ability to apply for the position  of the Chief Justice  of the Republic of Kenya  by depicting  him as not  fit to apply.

A declaration that the 4th respondent  in demanding a certificate of good conduct  from the applicant for the office of the Chief Justice  imposed  a condition  that  was not in accordance  with the Constitution  and further  that the petitioner  is entitled  to submit his  application  for the  post of Chief Justice without  the need for certificate  of good conduct  and to be interviewed.

An award of general damages for violations of the fundamental rights of the petitioner as may be assessed the court.

Any other or further relief that this Honourable court may deem fit and just.

Costs of the petition.

2. The petition is brought under the provisions of Articles 1,2,3,10,19,20,21,22,23,24,27,28, 41, 43, 47 and  50 of the Constitution   of Kenya, Sections  3,4,Part II, First Schedule of  the Judicial Service Act No.1  of  2011, Article  166 of the Constitution  and the Constitution of Kenya( Protection  of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.

3. The facts  giving  rise to the  petition herein  are that  the 4th Respondent, the Judicial Service Commission  placed advertisements inviting  applicants for  the vacant positions of the Chief Justice, Deputy Chief Justice and a judge of the Supreme Court of Kenya.  The advertisements were sent out on 17th June 2016 a day after the then Chief Justice Dr Willy Mutunga retired from office on16th June 2016.  The petitioner avers that the he was an intending applicant for the position of Chief Justice of the Republic of Kenya and that the said applications were to close on 8th July 2016 at 5. 00pm.

4. That to enable the petitioner submit his application for the said positions    before deadline, he required   amongst    other things  a certificate of good conduct  and therefore  he duly lodged  the application for the certificate of  good conduct   on 27th June   2016   and paid the requisite  fees of shs  1,000/-

5. That on the same  day of  lodging  of the application for the certificate  of good conduct,  an Inspector  of Police  Allan Mulama visited   the Supreme  Court building and took finger prints  from several judges  intending  to apply for  the aforesaid  vacancies  including  the petitioner  whose  fingerprints  samples were among  those taken.  That the petitioner  had a legitimate expectation  that the certificate of good conduct would  be issued   in good time  to enable  him submit  all the requirements  in good time  and that such issuance  would be a matter of course  since  in 2011 he had been issued  with one  as required by the Judges  and Magistrates  Vetting Board; and in  2012   when he   was applying  to join the   Court of Appeal.

6. The petitioner  therefore  enlisted the  Registrar  of the Court of Appeal to do errands  for him  and to collect   on  his behalf  the certificate of good conduct  from CID  Headquarters off Kiambu  Road.

7. It is alleged that the 1st respondent declined  to issue the  said certificate of good conduct to the Petitioner and instead  purported that there were  records/documents  that  it required  before issuing   the certificate  which in his view   was a charade.

8. That on  8th July 2016 at  5. 04  pm, a day after the closure of the application for the advertised  positions, the Registrar of  the Court of  Appeal received communication from  the CID Headquarters  at Kiambu Road  feigning  ignorance of the fact that the petitioner  had no criminal  record  as it referred to  a case which   was determined in 2009 in his  favour.

9. The petitioner believes that the delay in issuing  him with a certificate of good conduct was malicious and intended  to sabotage his application for  the position of Chief Justice, which  fact he had  disclosed while  lodging his  said application for the certificate.

10. That the petitioner claims that the 1st respondent was under a duty to issue the certificate of good conduct in the absence of any criminal record, a fact that was known to that office. He avers that the refusal to issue him with the certificate of good conduct  is in breach of Part III of the Public Officers Ethics Act 2003 because the 1st respondent:

Failed to act honestly;

Did not carry out his duty in a way that can maintain public confidence in the integrity of his office.

He failed to maintain professionalism and accepted standards   of performance of his duties.

He did not   discharge his  responsibility  in accordance  with the Rule  of Law;

He exhibited malice by sabotaging the petitioner’s application.

He had police officers in other stations that collaborated with his office to violate the petitioner’s  guaranteed rights under the Constitution to vie for the position of Chief Justice.

11. The petitioner  also claims that  he has been  greatly injured  by actions/inactions of the 1st respondent and by extension  those of the  2nd  and  3rd  respondents  which matter has great implication on the petitioner’s  professional  life; and goes against administrative  action as enshrined  in the  2010  Constitution.

12. He denies  that he  has since  2012  when he  last got  such certificate of good conduct been engaged  in any crime, vice and  or had  ceased to be  a man of good  standing  in the society  hence the  refusal to issue  him with the  certificate of good conduct is unreasonable and without any lawful justification.

13. The above  facts  as set out  in the petition  are the same  facts  relied on in the petitioner’s  interlocutory  application by way  of notice of motion dated  9th  August  2016  under certificate of urgency  wherein he petitioner seeks  orders  for:

Spent

A mandatory injunction do issue  directed at the 1st and 2nd respondents ,their agents, officers  or employees compelling   the issuance of  a certificate of good conduct to the  petitioner/applicant.

That a mandatory injunction do issue directed to the 4th defendant compelling inclusion of the petitioner in the list of candidates vying or shortlisted to fill the vacancy of   the office of the Chief Justice of the Republic of Kenya.

That this Honourable court be pleased to issue any further orders it deems fit and just to ensure that justice is maintained.

That costs of this application be in the cause.

14. The interlocutory application is supported by the affidavit sworn by Honourable G.B.M. Kariuki as reproduced in the facts relied on herein above, annexing several documents including;

a) A copy of advertisement  for the vacancy for Chief Justice of the Republic of Kenya made on 17th June 2016 extracted from http//www.newkenyajobs.com,

b) Copy of certificate of good conduct No. 018926 issued to the petitioner on 16th January 2012.

c) Letter dated  8th July  2016 from M.K.K. Serem Registrar  Court of Appeal  to the petitioner conveying the communication  from the ACID regarding  the processing of  the certificate of  good  conduct  applied  for by the petitioner.

d) Signal dated  30th June 2016 from Allan  Mulama, CID to Kamukunji Police station inquiring  on the status  of Criminal Case No. 162/90/08 –Attempted  murder  against the petitioner  directing urgent  submission of trial  results so as to  enable  police  process clearance  certificate  for the petitioner;

e) Judgment in CM Criminal 1655/2008 delivered on 15th October 2009.

15. When  the matter  came  up before  me on  10th August  2016  under  the Vacation  Rules  with a certificate of urgency, as a duty  judge, I certified the application as urgent and  directed  the petitioner to effect service of the petition and  the application upon the respondents  forthwith for  interpartes hearing  on 16th August  2016.

16. The petitioner’s advocate, Mr Mungai did effect  service  of the petition  and application upon the respondents on 11th August  2016  as per  the affidavit of service sworn  and filed  in court by Esther  Kabura, the process server.

17. When  the matter came up for  interpartes hearing  before me on 16th August  2016  as scheduled, Mr Mungai  advocate  for the  petitioner/applicant  was present  while the 1st  and  2nd and  3rd  respondents were represented  by Mr Moimbo. The 4th respondent, Judicial Service Commission   was not represented.

18. The court also notes that none of the respondents filed any formal appearances and or any replying affidavits to the notice of motion or the petition. Mr Moimbo sought for an adjournment which the court declined to grant, pavingway for the petitioner/applicant to argue the notice of motion dated 9th August 2016 exparte.

19. In his submissions in support of the Notice of Motion, Mr Mungai submitted relying on the petition, facts   as presented above and supporting affidavit of the petitioner.

20. The petitioner’s  counsel’s submissions  basically replicated the  said facts as deposed  by the petitioner/applicant, adding that the  delay  in issuing the petitioner  with certificate of good conduct  and instead  requesting for proceedings  by the 1st respondent   was mischievous  since the petitioner  had been tried and  acquitted  in 2009  as per the  judgment  annexed.  That since  it is  the 1st respondent’s office  which investigated  the case involving   the petitioner, and  caused him arrest and arraignment  in court, and the petitioner’s  prosecution having been  conducted  by the  police, there was no doubt that the  case for which a signal  was being  send asking for proceedings, the  1st  respondent   was well aware  of.  Further, that the 1st respondent took too long to give feedback since the finger prints for the petitioner were taken the same day of the application for the certificate. The petitioner complained that it would appear that the 1st respondent chooses when to be efficient and when not.  That since the reasons for the certificate of good conduct   were known, there is no justification for denial of the said certificate.

21. That the 1st respondent should not be allowed to frustrate a citizen’s rights to apply for a constitutional office through delays.

22. According to the petitioner, the right to fair administrative action is a fundamental right which should not  be violated  and that if the 1st  respondent is  left to get away  with its actions, then it is made to be a gate  keeper  on who  becomes a Chief Justice  and or who  becomes a Judge IN THIS GREAT Republic of Kenya.

23. Further, that the framework for appointment of judges is informed by the history of the Executive Arm of Government meddling with appointment of judges. The petitioner urged the court  to find that  not only was Article 47 of the Constitution of  Kenya  violated but that it should go further and declare  that the requirement for a  certificate  of good conduct  is infact  unconstitutional since Article  167 of the constitution gives the  criteria for one to  become  a  Chief Justice  of Kenya.  Further,  that  the justification for certificate of good conduct   are not clear  since there are no  mechanisms  by the 1st  respondent  to determine who behaves  well.  Further, that the 1st respondent can only determine if one had a criminal record.

24. In addition, it  was  submitted that the only threshold required  is integrity  as stipulated in  Chapter Six of the Constitution  and the  Leadership  and Integrity  Act.  Counsel submitted that it is unconstitutional to limit the petitioner’s rights. No precedent was cited by the petitioner’s counsel.

25. Mr Moimbo counsel for the 1st, 2nd and 3rd respondents indicated to court that he had nothing to say, even on a point of law, in response to the sub missions made by the petitioner’s advocate.

Determination.

26. I have  carefully considered  the  petitioner/applicant’s Notice  of Motion dated 9th August  2016, the supporting  affidavit, the  annextures  and the  facts relied on in support  of the main petition subject  of these  proceedings.  I have also considered the constitutional provisions as well as statutory law relied on by the petitioner/applicant.

27. In my humble view, the notice of motion seeks for mandatory  injunctive  orders, to compel the  1st and  2nd  respondents  to issue the  petitioner/applicant with a certificate of good conduct;  and compelling the 4th respondent  to include the petitioner /applicant in the list of candidates  vying or shortlisted to fill the vacancy  of the  office of  the Chief Justice  of the Republic of Kenya. The issue for determination is whether the petitioner/applicant has  satisfied the court for the grant of a mandatory injunction(s).

28. The test on whether to grant a mandatory injunction  at this interlocutory  stage as prayed in  this matter which is  not even  defended   was set out in the case of Shepherd  Homes Ltd V Sandham[1971] 1 Ch 34 and in [1979] 3 W.L.R. 348 by Megary J where the learned judge  stated that:

“It is plain that in most circumstances a mandatory  injunction is likely, other things being equal, to be   more drastic in its effect than a prohibitory injunction. At the trial  of the action, the court  will of course grant   such injunction  as the justice  of the case  requires but at the interlocutory  stage, when  the final  result of the case cannot  be known and the court has to do the best  it can, I think the case  has to be unusually strong and clear before a mandatory  injunction  can be granted  even if it is sought  to enforce  a contractual obligation.”

29. The above  decision was adopted in the case of  Kenya Breweries  Ltd  & 2  Others V Washington Okeyo [2002] e KLR wherein  the Court of  Appeal  pronounced  that:

“  The test  whether  to grant  a mandatory injunction  or not  is correctly stated  in Vol.24  Halsbury’s Laws  of England  4th Edition paragraph 948  which reads:

A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances it will not normally be granted.  However, if the  case is clear  and  one which  the court thinks  it ought to be  decided at once, or if  the act done  is a simple  and summary one   which can  be easily  remedied, or  if  the defendant  attempted to steal  a match on the plaintiff……..a  mandatory  injunction  will be  granted  on an interlocutory  application.”

30. Also, in Locabail International Finance  Ltd V Agro Export  and Others[1986], ALL ER  901 at page  901  it  was stated that:

“ A mandatory injunction ought not to be  granted  on an  interlocutory application in the absence  of special  circumstances   and then only  in a clear  case either  where   the court  thought that the matter ought  to be decided at once or  where the  injunction  was directed  at a simple  and summary  act  which could be  easily remedied  or where  the defendant  had attempted   to steal  a match  on the plaintiff.

Moreover, before  granting  a mandatory interlocutory  injunction the court had  to feel a  high degree  of assurance  that at  the trial it  would appear  that the injunction had  rightly been granted, that being a different  and higher standard  than was required  for a prohibitory  injunction.  The principles of law enunciated by these decisions have received full approval by the court within our jurisdiction.  See the  case  of Belle  Maison  Limited  VS Yaya  Towers  Limited  HCC  2225  of  1992, per Bosire J ( as he then was) and  the Ripples Limited Vs Kamau Mucuha  HCC No. 4522 of 1992   per Mwera J.”

31. The passage in Halsbury's Laws of England volume 24 paragraph 948 is germane to the same issue of when to grant an interlocutory injunction. It reads:

"A mandatory injunction can be granted on an interlocutory application, as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempts to steal a march on the plaintiff, such as where, on receipt of notice that an injunction is about to be applied for, the defendant hurries on the work in respect of which complaint is made so that when he receives notice of an interim injunction it is completed, a mandatory injunction will be granted on an interlocutory application."

32. Besides the above  specific principles, principles, the general principle for grant of interlocutory injunctions  were enunciated  in the Giella  Vs Cassman  Brown[1973] E.A. 358 case as adopted  in many cases  including the Court of Appeal’s decisions  in Tende  Drive Villas Ltd V David  Kamau  & 4 Others [2005] e KLR  that:

“ First the applicant must  show  a prima facie  case with  a probability  of success at the trial secondly an interlocutory injunction  will not be granted  unless the applicant  would suffer an injury  which cannot be  compensated  in damages. Thirdly if the court is in doubt, it should decide the application on a balance of convenience. It  must be appreciated  that an interlocutory  injunction is a discretionary equitable remedy  and accordingly, the same  will not be granted where it is  shown that the applicant’s conduct  with respect  to matters pertinent to the suit  does not  meet the  approval of the court of equity.”

33. The questions that this court  must pose and  answer are whether  the application  by the petitioner/applicant  satisfies  the 3 conditions in the Giella Vs  Cassman  Brown (supra) case and in addition,  whether this is a simple and clear  case where the  court can  issue a mandatory injunction, compelling the respondents  to issue the petitioner   with a certificate of  good conduct  and to include him the list of shortlisted  candidates for the positions  of Chief Justice  of Kenya.

34. First and  foremost, this court  notes that  the petitioner’s  counsel  did not  attempt  to submit  on any of the principles  applicable  in application for an injunction  let alone  a mandatory injunction.  He nonetheless focused on violations of his client’s constitutional rights  to fair administrative  action of  expediency and   the unconstitutionality  of the  requirement for a  certificate of good conduct  demanded  by the Judicial Service Commission, in the process  of recruiting  a Judge or Chief Justice.

35. This court is however alive to the fact that the  threshold for the issuance  of conservatory  interim orders in a constitutional  petition is as propounded  by the Supreme  Court in Gatirau Peter Munya  Vs Dickson  Mwenda Githinji  and 2 Others  Petition  2/2013  (SC) where the  Supreme Court of Kenya pronounced itself  thus:

“Conservatory orders bear a more decided public law connotation: for these are orders to facilitate ordered functioning within the public agencies, as well as to uphold the adjudicatory authority of the court, in the public interest. Conservancy orders, therefore, are not unlike interlocutory injunction, linked to such private party issues as the prospects of irreparable harm occurring during the pendency of success in the applicant’s case for order of stay.  Conservatory orders  consequently  should be  granted on the inherent  merit  of a case  bearing in mind  the public interest, the constitutional values and the  proportionate  magnitudes  and priority  levels  attributable  to the relevant  causes.”

36. In the Supreme  Court of Canada case of Potash  Corp of Saskatchewan  Inc V Mosaic  Potash  Esterhazy Ltd  Partnership [2011] SJ No. 627(CA) the court stated:

“ ………the strength  of the case, irreparable  harm and  a balance of  convenience , consideration, although prescribed  and necessary  parts of the  analysis  mandated by the Supreme Court, are  nonetheless not usefully seen as  an inflexible    straight jacket.  Instead, they should be regarded as the   framework in which a court will assess whether an injunction is warranted   on any particular case.  The ultimate focus of the court must always be on the justice and equity of the situation in issue…..there are important and considerate interconnections between the three tests.  They are not water tight compartments.”

37. Thus, in  constitutional petition, courts   do not restrictively  apply the principles  espoused  in Giella Vs Cassman Brown  and those set  out in the grant of  mandatory  interlocutory injunctions  but give  prominence   to public  interest considerations, which principle  this court  subscribes  to and  as was  echoed by Muriithi J in Mombasa  Branch Vs  Mombasa County Council  Constitution  3/2014 that:

“ With respect, although  the counsel for  respondents  submitted on the basis of the standard of prima facie  case with  regard to temporary injunctions  in civil cases as established  by  the decision on Giella Vs Cassman Brown  [1973] EA  358, the test  for the grant of conservatory  orders under constitutional applications must  be qualified to take into account  the premium   that the constitution  places upon  the enjoyment of fundamental rights.  such premium  is to be  seen in the easy access  to the court that  is granted  to the applicants  in terms of  locus standi  and the formality  of documentation ( See Article  22 of the Constitution).  In such circumstances the balance of convenience test  upon an arguable  case being  demonstrated by the applicant  is more appropriate to preserve  the enjoyment   of rights  pending  hearing  and determination  of the petition  for breach of  fundamental  human rights  and freedoms.  Needless  to state, in terms  of Article 24   of the Constitution  the balance of  convenience  must involve  balancing  the rights  of the applicant  against  the rights  of others whose  enjoyment  of those  or other rights  may be  jeopardized  or affected  by the  enjoyment by the applicant  of the rights  in question.”

38. In applying  the above  principles  to this application, the court is  alive   to the  truism that the  prayers  sought herein  are indeed  interlocutory   in nature  and that the main petition  is still  pending  and therefore it must not  make  definitive   or final findings  that may prejudice  or embarrass the  hearing of  the main petition.

39. Therefore, I would  narrow the issue for  determination to one only  and that  is, whether  the applicant/petitioner has established  an arguable  case and  therefore   whether  the balance of  convenience  tilts  in his favour in the circumstances  of this case.

40. The applicant/petitioner  avers that  he  was an intending  applicant (not an applicant)  for the vacant  position of the Chief Justice  of Kenya  as advertised  by  the Judicial Service  Commission  on 17th June  2016.  The said   advertisement  required  that the applicant  must, among  other  requirements, submit copies of clearance certificate  from the Directorate of Criminal Investigations; Kenya Revenue Authority; Higher  Education Loans  Board; Law Society  of Kenya; Advocates  Complainants  Commission; Ethics  and Anti-corruption Commission and a recognized  Credit  Reference  Bureau.

41. The petitioner/applicant also avers that he  lodged the application for a certificate  of good conduct  with the 1st respondent on 27th June  2016  and on the same day  the  Inspector of Police Mr  Mulama  From DCI went to  the Supreme Court  and took  his  finger prints and those of other intending applicants but that  to date, no such  certificate has  been given to  the petitioner, with  the Director of Criminal Investigations(DCI) only  communicating  on 8th July  2016  a day   after  the time for  lodging  the  application for the post  of Chief  Justice lapsed on 7th July, 2016.

42. The petitioner claims  that all other  judges  who applied  for  certificate of good conduct were  issued  with theirs  timeously  but that  in his case, the  1st  respondent feigned  ignorance  of the  outcome of the criminal  case  which the  petitioner was charged  with, tried  and acquitted in 2009.  Further, that in any event, in 2011 and  2012  the  1st respondent  did issue the  petitioner  with  certificate of  good conduct  as requested then for vetting   with the Judges  and  Magistrates vetting Board  and  for position  of the judge of Court of Appeal  respectively.

43. The  petitioner  considers  the 1st respondent’s  delay and or refusal  to issue him  with  certificate of good  conduct  mischievous  and  a gate  keeping act   intended  to frustrate  and curtail   his bid  to climb to the helm  of the Judiciary as the next  Chief Justice of the Republic of Kenya.  He also claims that the delay in issuing him with the said certificate of good conduct is a denial  of his right  to fair administrative  action to expeditious  service  and to apply for the job of  Chief Justice  besides  being discriminatory because  all other judges   were issued  with the certificate  of  good conduct.

44. As against  the 4th respondent, the  petitioner  claims   that the inclusion  of the requirement for certificate of good  conduct  in  the advertisement   is unconstitutional  since the threshold  for Chief Justice  is in  Article 167 of the Constitution and the  Leadership and  Integrity   Act as  contemplated in  Chapter  Six  of the Constitution.

45. Having considered   all the above matters  which are  uncontroverted, I am  of the view that the applicant has not satisfied  this court  that he is  entitled  to the mandatory injunctions sought at  this interlocutory  stage for  the following  reasons:

That  the applicant/petitioner  knew  of the advertisements  placed on 17th June  2016  and when the time for  applications  would lapse,  which was on 7th July 2016 at 5. 00 pm.

That the  petitioner waited until  27th June  2016  nearly 10 days  later  when he  lodged   the application  for certificate  of good conduct  with the  1st respondent.

That the  1st respondent  acted   with alacrity  when  he dispatched  Inspector Allan Mulama  to the Supreme Court  on 28th June, 2016, only a day after such application was lodged by the applicant to take the finger  prints  of the applicant and other  intending  applicants  for the advertised  vacancies.

That on  30th June  2016  three days   later,  a signal   was send  by the 1st respondent  to Kamukunji  Police  Station seeking  to know the status  of the criminal  trial wherein  the applicant was charged  with the offence of attempted murder.

That there is  no evidence to show that the 1st  respondent deliberately delayed  to facilitate  issuance of  certificate  of  good conduct  to the applicant or that he has refused to issue such certificate to the petitioner/ applicant, considering that the signal directed urgent submission of the trial results in a criminal case to enable processing of police clearance certificate for the petitioner. I do not, in the circumstances see any evidence of malafides on the part of the police.

The view of this court is that the 1st respondent does not merely exist  to issue out clearance  certificates  but to issue such clearance  certificates, after verification  of an applicant’s particulars  hence the  signal to the Kamukunji police station being dispatched to verify the information on the applicant’s standing.

That there is no evidence that the Registrar of the Court of Appeal, whom the applicant send to run errands on his behalf, was frustrated by the 1st respondent since the only communication the Registrar received and submitted to the petitioner/applicant was the signal. The Registrar has not sworn any affidavit to express what kind of frustrations he underwent in the hands of the 1st respondent if at all.

That the applicant  did not  mention  what efforts  he or  the Registrar of the Court of Appeal  made between  28th June  and 7th July 2016 to obtain  the clearance  certificate  from the 1st respondent.

That there is absolutely no evidence that, other than for the certificate of good conduct, the petitioner/applicant had taken the trouble to gather all the other necessary requirements or reports and completed an application form for the advertised vacancy of Chief Justice ready for submission to the Judicial service Commission.

That there is  absolutely no evidence that it is  the certificate  of good conduct  and nothing  else  that prevented the applicant  form lodging  an application for the advertised  vacancy  of Chief Justice.

That there is no reason advanced by the applicant why the  applicant/petitioner   on realizing  that there  was delay,   and before  7th July 2016 he could not  personally  contact  the 1st respondent  to establish  the  cause of  the delay.

In addition, there is nothing apparent to show that the applicant/petitioner’s application for position of Chief Justice if submitted to the Judicial service Commission could not have been considered in the absence of the certificate of good conduct as the certificate of good conduct was only one of the required accompanying documents.  Further, failure to avail the said certificate of good conduct at the application stage by the applicant would, in my humble view, not be a valid reason for non consideration of an application for the position since it is not a constitutional or statutory requirement and the petitioner/applicant may well be in a position at the time of the interview once shortlisted for the position to explain his reasons for the failure to secure the same at the time of lodging his application.

The claim  that the  requirement  for certificate of good conduct  by the Judicial Service Commission is unconstitutional  by the applicant at this stage is an afterthought  since the applicant  admitted that  on two occasions in  2011  and  2012, he  was  required  to submit to the Judges and Magistrates Vetting Board  the same certificate and when applying  for  Judge of Appeal and he did apply  for the said certificate of good conduct and  was  issued with  the same.  Iam fortified by Regulations 7 and 8 of the First Schedule empowers the Commission to undertake Reference checks and Background investigations on the Applications even after the short listing has been done hence nothing would prevent the Commission from acting on its own motion to obtain such documents from the relevant authorities..

In addition, this court has not been given reasons why only the requirement for a certificate of good conduct would be unconstitutional and a gate keeping exercise by the 1st and 2nd respondents in the selection of Judges and not the other listed requirements like clearance certificates from Kenya Revenue Authority, HELB ACC, EACC and Credit Reference Bureau. Neither has the court been shown evidence of discrimination against the petitioner/applicant by the respondents, noting that the 4th respondent Judicial Service Commission has not rejected the applicant’s application as none has been presented before it for consideration. To that extent, the Commission owes no duty to the petitioner/applicant who has not submitted to its jurisdiction.

As correctly pronounced by Hon Odunga J in JR314 of 2016, in his judgment delivered this morning, those additional requirements are handmaidens in  determining the applicant’s integrity which according to Regulation 13, encompass demonstrable consistent history of honesty and high moral character in professional and personal life; Respect for professional duties arising under the codes of professional and judicial conduct; and Ability to understand the need to maintain propriety and the appearance of propriety. And that the mere fact that the Commission included extraneous matters in the advertisement does not warrant the quashing of the said advertisement in the circumstances of this case.”

In the view of this court, and in the current constitutional dispensation, standards matter. Visibly high standards of behaviour by public office-holders may not be a sufficient condition for high levels of public trust. But they are a necessary one. There can be little doubt that current levels of trust are considerably higher following the problems of the last decade in appointment of Judges and or of the Chief Justice in Kenya.

There is  also no evidence that  the applicant made  the  1st respondent aware  that the purpose  for which the certificate  of good conduct was required  was  the specific application to the position of Chief Justice  and that it  was required  instant  or on or before  7th July 2016, for this court to believe that the 1st and 2nd respondents are hell bent to scuttle the petitioner/applicant’s endeavourt to rise to the helm of the position of Chief Justice of the Republic of Kenya.

That between  8th July 2016 when the signal by the 1st respondent was communicated to the petitioner/applicant  and the time of filing this petition and application for mandatory injunctive orders on 9th August  2016,  is one month taken by the  petitioner/applicant  which  is  way after the  Judicial Service Commission  had  received and considered the various applications submitted by other applicants for the advertised positions and  proceeded to shortlist candidates  and released a time table for interviews which interviews have commenced today and are continuing as I deliver this ruling.

An injunction is an equitable remedy and is therefore issued in the discretion of the court. It is trite law that no one is entitled to the aid of a court of equity when that aid has become necessary through his or her own fault and neither does equity relieve a person of the consequences of his or her own rashness. In addition, a court of equity will not assist a person in extricating himself or herself from the circumstances that he or she has created.

There is also no evidence that the applicant even lodged his application for the post of Chief Justice   without a certificate of good conduct but that such application was rejected for want of a certificate of good conduct.

In my honest view, the petitioner/applicant herein whom I have so much respect for has suffered a self created hardship. His own delay in seeking for the certificate of good conduct and his failure to demonstrate that he applied for the position of Chief Justice to warrant an order for him to be considered or be short listed for the interview put him in this uncertain position. He has not even sought to submit the application out of the time stipulated.

Pursuant to the First Schedule to the Judicial Service Act, procedures for appointment of Judges are spelt out.  Under Section 2 thereof which is the interpretation section, ‘Applicant’ means any person making an application to the Commission for consideration as a judge.  In the   instant case, the petitioner herein does not qualify to be considered for short listing for the advertised position of Chief Justice for the very simple reason that he did not lodge his application with the Commission for consideration.

Section 4(2)  of the First Schedule  is clear that each applicant seeking  consideration for nomination and recommendation for  appointment to  a judicial office  shall complete   and file  the prescribed  application form and comply  with all  requirements  described therein. Under section three (3) thereof, the prescribed application form requires an applicantto provide back ground information which may be relevant to determine qualifications for office including criminal record.

Furthermore, what is required under section 4 of the Schedule, apart from sample writings and photographs is just information. Therefore, demanding any other requirements would indeed be external what is contemplated under Regulation 4 and hence the non compliance with such extraneous requirements which may nonetheless be necessary cannot be the basis for not short listing an applicant who has otherwise met all the minimum constitutional and statutory requirements for the position of Chief Justice.

However, as I have stated earlier, the petitioner herein has not demonstrated to this court that he applied for the advertised position of Chief Justice and that the Judicial Service Commission has refused to consider his application for short listing purposes. He has also not sought for leave to enlarge the times stipulated under the Act for submission of the application for consideration by JSC. That is the point at which this matter is distinguishable from the Petition No 314 of 2016 as consolidated with JR 306  of 2016  between TRUSTED SOCIETY OF HUMAN RIGHTS ALLIANCE&3 others vs Judicial Service Commission and Anotherdecided on by Hon Justice Odunga this morning in the sense that in that petition, the affected persons had applied for the position’s but the Commission had not considered them for short listing on account among others, that they did not attach all the documents required in the advertisement.

Accordingly, I find that this court has not been shown how the Judicial Service Commission contributed to the applicant’s predicament since it never received any application from the petitioner/applicant for the position of Chief Justice for consideration.

In the view of this court, if the applicant met all the constitutional and statutory  requirements  for consideration for the position of Chief Justice of the Republic of Kenya, as averred, and did not  consider  any additional requirements set by the Judicial Service Commission  to be relevant or constitutional, nothing     prevented  him from  submitting  his application without those extraneous requirements and challenging any rejection thereof by the Commission on the basis  that  additional  requirements  were/are unconstitutional.

Further, the petitioner/applicant had the liberty to seek to challenge the constitutionality of the additional requirements immediately the advertisements were placed in the media, without seeking to comply with those requirements. Instead, when he was confronted with bottlenecks of delayed issuance of the certificate of good conduct is when he sought to have the additional requirements declared unconstitutional. In my view, that is an afterthought which is bereft of good faith.

This court underscores that the failure by the applicants to obtain the certificate of good conduct from the 1st and 2nd respondents before closure of applications deadline cannot be the sole basis for him not being considered by the Judicial Service Commission as there was no such application submitted by the petitioner to the Judicial Service Commission capable of being considered by the Commission.

PART V section 30 of the Judicial Service Act deals with the recruitment of Judges in a transparent manner through a Selection Panel constituted by the Commission for that purpose and the procedure to be followed is as stipulated in the First Schedule to the Act. That procedure, in my view, is necessary and intended to instill public confidence in the whole process of getting suitable candidates for appointment to the positions of Judges and it cannot be wished away as a whitewash or a witch-hunt to attract public cynicism.

Furthermore, Regulations 7 and 8 of Part III to the First Schedule empowers the Commission to undertake Reference checks and Background investigations on the Applicants even after the short listing has been done but of course after considering an application placed before the Commission. In addition, in my humble view, the Commission can still consider and shortlist an applicant who has not submitted the required documents and give a candidate an opportunity to explain their reasons for the failure to secure the same, at the interview stage. And since such clearance certificates required to be submitted by the applicants with the applications are not considered conclusive evidence of their contents, the Commission could on its own accord seek for more accurate information on the same, even after interviews.

For those reasons, this court declines to order a mandatory injunction compelling the 1st and 2nd respondents to issue the petitioner/applicant with a certificate of good conduct as there is no evidence that the said respondents have deliberately refused, neglected and or declined to issue him with such certificate of good conduct.

The court further declines to order for the petitioner/applicant’s short listing for an interview for the post of Chief Justice of the Republic of Kenya by the Judicial Service Commission as there is no evidence that the petitioner/applicant did lodge or submit any application for the advertised position of Chief Justice with the Commission, an application capable of being considered on its merits, and for his inclusion in the list of shortlisted candidates to be interviewed for the position of Chief Justice of the Republic of Kenya, however qualified he may be. Applying the short cut route to that position is a spatter in the face of the clear statutory provisions.

The balance of convenience in this case does not tilt in favour of the applicant who has failed to establish an arguable petition.

On the basis of the above reasons, this court declines to grant the mandatory injunctions sought even if the application was not defended as the applicant has failed to satisfy the court that the orders sought from this court are merited. Accordingly, I find the application before me dated 9th August, 2016 a shooting star and proceed to dismiss the same and make no orders as to costs.

Dated, signed and delivered in open court at Nairobi this 29th day of August, 2016.

R.E.ABURILI

JUDGE

In the presence of:

Mr Mungai and Mr Kahonge Advocates for the petitioner/applicant

N/A for the respondents

Court Assistant: Adline