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August 21, 2018

CJ interviews: AG Muigai tests Maraga’s skills

Justice David Maraga takes his seat for his interview for the position of Chief Justice before the Judicial Service Commission at the Supreme Court, August 31, 2016 /Jack Owuor
Justice David Maraga takes his seat for his interview for the position of Chief Justice before the Judicial Service Commission at the Supreme Court, August 31, 2016 /Jack Owuor

Appellate judge David Maraga on Wednesday found himself at pains to demonstrate his expertise in applying the law in conflicting lawsuits when he was interviewed by JSC.

The Kisumu-based judge was the third to be interviewed for the position of the next Chief Justice.

Attorney General Githu Muigai, one of the panelists, put Maraga to the test when he sought to know how he would pass judgements in suits where two or several laws are at conflict with each other.

He used a case study of a surrogate mother who decides not to forfeit ownership of a child to its separated biological parents and each is seeking custody.

"So, now you have a three way dispute. What law shall we turn to because in my view, there is none?" Muigai asked.

He added: "To seal these loopholes, shall we turn to the law of contract, the children’s Act or the Constitution to find the answer of who should have this baby,"

Maraga admitted that the question was tricky but answered nonetheless. "In this scenario, the child's interest is paramount," he said.

He stated that he would also consider whether or not the contract signed between the surrogate mother and the couple was legal; and whether it went against public policy or not.

Maraga’s understanding of the law was again tested when the AG painted a similarly delicate situation that required a decision that goes beyond the application of the law or the constitution.

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Muigai sought to know what the judge would do in a scenario where a terminally ill patient writes a will that s/he be put off life support in the event that they are in a vegetative state; but his family disputes the decision on grounds that assisted suicide is illegal in Kenya.

"The Constitution states that life is sacred, and as you have stated, euthanasia is not legal in Kenya," justice Maraga said.

Euthanasia is a legal term that refers to the painless killing of a patient suffering from an incurable and painful disease or one who is in an irreversible coma.

Muigai did not stop there. He put it across to Maraga to explain what parameters he would use as Chief Justice to qualify a dispute for adjudication "as not all disputes are ripe for adjudication".

Maraga was also asked how he would decide political cases which cannot be resolved through judicial processes.

The AG also sought to know if justice Maraga agreed with the argument that the jurisdiction of the Supreme Court over a dispute can only stand if the bench is constituted of a minimum of five judges.

He responded by saying the court can pass substantial orders only if the bench is made up of the legally acceptable quorum.

"A single judge of the court can only at most give a procedural order like applications to appeal out of time," said justice Maraga. 

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