• To address the issue, Ouko said he will go back to JSC to find out where the problem is.
• Depending on what he gets from the JSC and on what it thinks, he will take the grievance to the head of state.
Justice William Ouko has revealed that the Appeal Court where he is the President has suffered the most over the delayed swearing-in of the 41 judges.
Ouko on Wednesday told the Judicial Service Commission panel which was interviewing him for the Chief Justice position that the number of judges in his court has reduced to 15 following the retirement of some and death of one.
He said this is despite the fact that his court has to sit as a bench of three judges for every case and they feel the weight.
And to address the issue, Ouko said he will go back to JSC to find out where the problem is.
“There ought to be a way out. I will come up to the JSC and retrace our steps and find out where the rain started beating us.
Depending on what he gets from the JSC and on what it thinks, he will take the grievance to the head of state.
“As head of the Judiciary the CJ has some structured channels with the President and if there is none, it will be for me to develop one. The government has three legs like an African stool and if one is short, one cannot sit comfortably on that stool,” he said.
On the issue of the Supreme Court facing criticism of issuing decisions which to some have flung open doors on the jurisdiction of that court, Judge Ouko, said criticism is good and should be taken seriously and addressed.
If appointed to be the CJ he will bring together the judges of the Supreme Court and look at the decisions where they have faced criticisms and invite scholars for reflection on the same.
“The Supreme Court is so important to this nation and we must ask judges in that court to take these criticisms seriously because institutions are run down when they bury their heads in the sand,” he said.
Judge Ouko said the famous Muruatetu case has brought about confusion in the Judiciary.
He agreed with commissioner Justice Mohamed Warsame that after the Supreme Court ruling on the death penalty, judges and magistrates have misused the said ruling.
The case dealt with the circumstances surrounding the death penalty but the Supreme Court gave a rider that the ruling was to be applied to Muruatetu and Mwangi only.
Judge Ouko said what has brought about the confusion was the paragraph that said you cannot take away the discretionary power of the judge in sentencing but the court also said the AG should put a framework in place for future sentencing in these capital offences.
He said in his opinion, people waited for the AG to bring a framework and decided to take matters into their own hands by using the judgement in sentencing.
"The Supreme Court did not finish their job and if you give me an opportunity to be CJ, I will mention the matter so that we can deal with the issue and the AG will come to update the court on the progress of the framework," he said.