• In the case, the bench of the Appeal Court was called upon to halt a High court decision that said all the returning officers in the entire country were illegally in office.
• She explained that her decisions have always been informed by public interest and promotion of rights.
Image: CHARLENE MALWA
Lady Justice Martha Koome was on Wednesday put to task to explain why a bench she was part of heard and issued orders in absence of one party in a case relating to the 2017 presidential election.
In the case, the bench of the Appeal Court was called upon to halt a High court decision that said all the returning officers in the entire country were illegally in office.
Judge Koome said in her defence that first of all, the bench to hear the matter was empanelled by the then Appeal Court President Kihara Kariuki (now AG) to hear the case urgently because the election was to take place the following day.
And when the only one advocate appeared before them, they asked why the other party was not represented and was informed that due to urgency there was no time to serve.
However, the bench did not call the other party in the case.
"AG Kihara was then the President of the Court and I was in Mombasa then and the court was a circuit court. That week we were all in Nairobi. The day before the election was a public holiday and I was called by the registrar and told that the President had said the matter should be heard as urgent and we should not lose sight of the determination of the election taking place next day," she said.
Justice Koome spoke on Wednesday as she faced the JSC panel on its third day of interviews.
She is among 10 candidates shortlisted for the position of Chief Justice.
Judge Koome explained that the bench had to prioritize the urgency of the case noting that if they did not hear the matter, the election which was provided for in the Constitution would not have taken place which would have led to a constitutional crisis.
She also explained that her decisions have always been informed by public interest and promotion of rights.
For example, Koome said she allowed the auditing of Anglo Leasing contracts bearing in mind that it is a matter of public interest and it was important for the government to find out if the contract is value for money.
The contracts were questioned by retired President Mwai Kibaki's regime and the High court stopped auditing the same.
But when it got to the Court of Appeal, Judge Koome gave the go-ahead to PWC to audit them.
She also justified her holding in a defilement case where she held the Teachers Service Commission liable.
The judge said that even though TSC did not engage in the defilement, it owes a duty of care because it is the body that hired the teachers who are accused of defiling children under their care.
She said that TSC ought to have come up with a policy to tackle such issues and the court learnt that though the commission had regulations the same was not even cascaded to schools.
Judge Koome was also asked to explain the philosophy behind the Communications Authority of Kenya where the Court of Appeal overturned the decision by the high court.
The court ruled that CAK had breached the privacy of Kenyans.
She said this is the authority that has the mandate of managing the communications for the whole country and it had been invaded by illegal mobile operators who were not paying their dues.
CAK had started the process of consultation for people to understand that the Building Management System (BMS) was supposed to nib the illegal mobile communication.
“However in the middle of consultation before it is finalized they are taken to court with the allegations that CAK was installing something that would eavesdrop on our conversation,” she said.
The High court judge had ruled that the authority had indeed breached the privacy rights of Kenyans therefore it cannot go on.
At the time the illegal mobile operations were running all over making it impossible for the CAK to carry out its mandate.
“This was really a matter of public interest to define a mandate of a body because if the body given a mandate is stopped from doing its work that affects many people and the economy,” Judge Koome said.
The judge also said the decision was important because, at the time of the case, Kenya was about to be isolated internationally which led them to rule in CAK’s favour.