Chief Justice of Kenya
The Chief Justice of Kenya is the head of the Judiciary of Kenya and President of the Supreme Court of Kenya. The office is established under Article 163 of the Kenyan Constitution. Willy Munyoki Mutunga is the current Chief Justice of Kenya. The Chief Justice is assisted by the Deputy Chief Justice who is also the Deputy President of the Supreme Court.
Chief Justices of Kenya since 1963
The First one
Chief Justice of Kenya – Sir John Ainley
(December 13, 1962— May 1968)
A career judge With the British colonial office and described by some as a polite and sincere person, Sir John Ainley was independent Kenya’s ﬁrst Chief Justice, having assumed office a year before independence.
Sir John had served in several British colonial territories before coming to Kenya and had the singular honour of having sworn in the last Governor—General of Kenya, Sir Malcolm MacDonald, in 1963, and Kenya’s founding President, Mzee Jomo Kenyatta, in 1964.
Sir John in best remembered as the judge who convicted Kisilu Mutua for the assassination of Pio Gama Pinto and sentenced him to death on July 15, 1965. In his judgment, he courageously observed that not all who had been involved in the murder were before the court and wondered why “the prime movers of the whole affair had not been thoroughly investigated”. Convicting Kisilu, Ainley observed that Kisilu did not pull the trigger, but was an accomplice at the scene. The death sentence was, however, later commuted to life imprisonment.
Chief Justice of Kenya – Arthur Dennis Farrell
(Appointed May 1968) – Shortest serving
Dennis Farrell goes down in history as Kenya’s shortest-lived CJ. He was appointed in an acting capacity in May 1968 only to retire in July the same year. Opinion at the time was that he got the job as part of Charles Njonjo’s tactic to forestall the appointment of an indigenous African.
Some believe he was sent home so early because of his handling of the criminal appeal of Bildad Kaggia, the former freedom ﬁghter and Kenyatta critic. Kaggia had been convicted of holding a political meeting without a license and sentenced to one year’s imprisonment. He appealed and his case came up before acting CJ Farrell and a Mr. Justice Dalton. They upheld the conviction, but reduced the sentence to six months. Farrell was immediately retired and the ﬁrst indigenous African CJ appointed on the same day that he delivered his ruling.
Chief Justice of Kenya – Kitili Maluki Mwendwa
(Appointed July, 1968) – Youngest and ﬁrst African
Kitili Maluki Mwendwa was Kenya’s youngest and first African Chief Justice.
He landed the job in July 1968 at the age of 39 after the retirement of the then acting Chief Justice, Arthur Dennis Farrell, but he resigned following accusations that he was part of a military plot to overthrow the Government of founding President, Jomo Kenyatta. MP Gideon Mutiso and the then army commander, Brigadier Joseph Ndolo, were also linked to the coup plot.
Mwendwa was born on December 24, 1929. His father was a paramount chief. He was one of the most educated African lawyers, having obtained a Bachelor of Laws degree from Exeter University and a Master’s degree in law from Oxford University. He had been admitted to the Bar in England and was a barrister of Lincoln’s Inn.
He came back to Kenya in 1962 and joined the civil service, quickly rising to become permanent secretary (PS) in 1963 and Solicitor General in 1964. As PS for Home Affairs in the immediate post—independence government, Mwendwa boastfully pinned on his door the sign; “Office of the learned Permanent Secretary” followed by his name and a string of degrees.
He took a close interest in his personal businesses and reportedly begun each day by receiving the takings from his bus company, Quick Bus Services, rather than hear the cases listed before him.
At the time of his appointment, Mwendwa had never appeared in court as an advocate. Despite his groundbreaking position as the first African CJ, he developed no policy guidelines on the Africanisation of the bench and contributed “absolutely nothing” to the practice of law.
When he took over as CJ, the High Court had 11 judges who included justices Farrell, Sir James Wicks, Chuni1alMadan, Chanan Singh, Cecil Miller, and Alfred Simpson.
His resignation resulted in such a political backlash against Kenyan African judges that it took almost three decades before another one could ascend to the position of Chief Justice.
Mr. Justice Mwendwa died in a road accident in September 1985. Mwendwa married Nyiva, with whom he had two children: Kavinya and Maluki. Nyiva was later to become the first Kenyan woman to serve as a Cabinet minister in the Moi government.
Educated at Alliance Girls High School, Nyiva won the Kitui West parliamentary seat three times: 1974, 1992, and 2002. In 2007 she lost her quest for a parliamentary seat. She, however, made a comeback in the March 4, 2013 elections to win the Kitui County Women Representative’s seat.
Chief Justice of Kenya – Sir James Wicks
(Appointed 9 July, 1971) – Served two presidents
After the failed experiment, the Kenyatta government went back to the system of appointing foreign contract judges to head the Judiciary.
Sir James Wicks goes down in history as Kenya’s longest serving, between 1971 and 1982. He is also the only one to have served two Heads of State, Presidents Kenyatta and Moi. It is during his tenure that the Executive literally took over and operated the Judiciary as it pleased.
Sir James was so subservient to the Executive, and particularly to Attorney—General Njonjo, whom he addressed as “Sir”, that he earned himself the nickname “Njonjo boy”. Under Sit James, the Executive did not lose any critical case and judges were known to consult with the Government whenever the Executive had an interest in a case.
One such case was that of Anarita Karimi Njeru vs Republic. Sitting with Justice Cecil Miller, with one judge dissenting from their opinion, the two ruled that the High Court had no jurisdiction to hear a constitutional petition by someone who had attempted another remedy in law. The cosy relation became more evident when he reached retirement age. He is the only other individual, apart from Paul J. Ngei, for whom the Constitution Was changed — three times. Every time he approached retirement age, the Constitution Was amended to prolong his tenure on the bench. This happened when he attained the age of 68, 70, and finally 72, when the Constitution was amended to set the retirement age at 74 years
Chief Justice of Kenya – Sir Alfred Simpson
(Appointed January 27, 1982) – Sober judge
Apart from the fact that he took over the reigns of the Judiciary at the worst possible time in Kenya’s constitutional history, Sir Alfred Simpson also took over a Judiciary that was already thoroughly compromised. Even ii he had wanted, he could have done little to undo the damage ‘already inﬂicted by Sir James Wicks. Known as a good and sober judge with a fine legal mind, Sir Alfred had a string of good judgments in his legal history.
One such judgment was in Xathan Kahara’s case where he upheld the right of a citizen to pursue a private criminal prosecution before the Judiciary.
Sir Alfred had ruled that the right of private prosecution was a constitutional safeguard against capricious, corrupt, or biased failure or refusal of the prosecuting authorities to prosecute offenders against the law.
As a High Court judge, Simpson presided over the case of Nahashon Isaac Njenga, the man accused of assassinating Tom Mboya in July 1969. Njenga was found guilty and sentenced to death. The Executive, however, maintained good relations with him and treated him as one of their own. The CJ revealed the good relations during the trial of Andrew Mungai Muthemba for treason.
While acquitting Muthemba, Simpson observed that a confession that Muthemba had given, saying he was acting at the instance of his cousin, Charles Njonjo, was just an attempt to tarnish “the Honourable minister’s well—earned reputation”.
He was soft-spoken. But according to Mr. Justice Majid Cockar in his memoirs, “(Simpson, in the opinion of the more vicious critics among the judges, was horribly mean and a miser. And he was not a person to forget or let pass any event calculated to slight or confront him”. He personally scrutinised work—tickets for judges’ cars to guard against misuse and this made him unpopular.
Chief Justice of Kenya – Chunilal Bhangwandas Madan QC
(Appointed October 9, 1984) – Confronted graft.
Arguably both the best judge to ever sit on the Kenyan Judiciary and also the best CJ to ever head it.
A former student of Jamhuri High School, he was called to the Bar in London at the Middle Temple Inn at the age of 21. He was later to be recognised by the Queen of England with the prestigious honour of Queen’s Counsel.
Madan is remembered for his brilliance, sound understanding of the law, and independence from the Executive. His judgments, rendered in prose and poetry, still excite the intellect of law students and practicing advocates alike. He was the first person to take steps over corruption in the Judiciary, forcing Mr. Justice William Mbaya and Mr. Justice S.K. Sachdeva to retire.
He is best remembered for saving Stanley Munga Githunguri when he prohibited the AG from prosecuting him. Observing that prosecutorial powers were being used in an oppressive manner, he uttered the following famous Words: “Stanley Munga Githunguri, you have been beseeching the court for an order of prohibition. Take the order. This court gives it to you. When you leave here raise your eyes up to the hills. Utter a prayer of thankfulness that your fundamental rights are protected under the judicial system of Kenya.”
His judgments were of stellar quality and are still a joy to read as they are ﬁlled with playful, poetic, and colourful language.
Despite his advanced age, Madan had great ideas about transformation but, unfortunately, he also had one of the shortest tenures as Chief Justice — just about 13 months.
Chief Justice of Kenya – Cecil Henry Ethelwood Miller
(Appointed November 14, 1986) – Allowed judiciary’s emasculation
Miller took the reins amid great optimism. Born in Guyana, he served as a ﬁghter pilot for the Royal Air Force in England during World War II before studying law and being called to the Bar at the Middle Temple Inn.
He joined the Kenya High Court in 1964 as the first judge of African origin. He was promoted to the Court of Appeal after 14 years, was the ﬁrst chairman of the Law Reform Commission and later the commission of inquiry into the conduct of Charles Njonjo.
It was during his tenure that the Government removed the security of tenure for judges and the Chief Justice. He raised no objection and instead used the new powers to sack Mr. Justice Patrick O’Cormor, who had resisted Mi1ler’s attempts to interfere with cases before him. Mr. Justice Derek Schoﬁeld resigned during Miller’s tenure.
Schoﬁeld had handled the habeas corpus application involving Stephen Mbaraka Karanja in 1987 and put the police in the spotlight.
Miller openly interfered with the work of judges and would remove a file from a judge and rule on it himself when the Government required intervention at the Judiciary.
He succeeded in divorcing the Judiciary from the AG’s office in order to have more power, rather than to improve it. He ensured that judges’ pay was increased and that they had better terms.
But under his watch, the Judiciary became even more emasculated by the Executive.
Chief Justice of Kenya – Robin Allan Winston Hancox
(Appointed September 22, 1989) – Subservient
Born in England, Where he attended school, Hancox came to Kenya after being called to the Bar and joined the colonial judiciary as a resident magistrate in 1957. He was transferred to Nigeria in the same capacity. He came back to Kenya in 1963 as a senior resident magistrate and was appointed High Court judge in 1969.
He joined the Court of Appeal in 1982 and served as the chairman of the law Reform Commission from 1987 until his appointment as Chief justice. He had a good legal mind but was neither a good nor sober judge.
A stepson of Sir James Wicks, who had married his mother, Mr. Justice Hancox exercised the same subservience to the Executive as his stepfather. He had been appointed judge during Wicks’ tenure as CJ. Asked for his view on the removal of security of tenure of judges, he remarked that the security of tenure of judges was guaranteed by the President.
One of his outrageous actions was appointing English Judge Norbury Dugdale as the full-time duty judge. At a time when constitutional litigation was ﬂooding the courts challenging the Moi regime, Mr. Justice Dugdale acted as the gatekeeper to keep cases from being placed before liberal judges. Hancox kept Dugdale as a duty judge for over ﬁve years.
His tenure was marked by an acrimonious relationship with the Law Society of Kenya, Whose leadership was at the forefront of the pro—democracy movement. Hancox never gave them audience. He was so pro-establishment that he openly called for the Judiciary’s loyalty to the President. He seemed unable to comprehend political changes. As a result, many questioned his competence.
Chief Justice of Kenya – Fred Kwasi Apaloo
(Appointed April 1, 1992) – Independent
Born in the Volta Region of Ghana, Apaloo studied law in England and was admitted to the Bar at the Honorary Society of the Middle Temple inn. He returned home to practice law where in 1964 he was appointed a High Court judge after the independence of Ghana in 1957.
As a judge in Ghana, he distinguished himself by acquitting ﬁve persons, including three associates of President Kwame Nkurumah, who had been charged with treason against his regime. Despite the bad blood it created with the Government, he was appointed to the Court of Appeal in 1966 and later, to the Supreme Court of Ghana in 1971. In 1977, he was appointed Chief Justice of Ghana.
Kwame Nkurumah tried unsuccessfully to remove him from office, as did the Government of President Hilla Limann and that of Jerry Rawlings. He retired at the age of 65 years. He was known to be unshakably independent.
He joined the Kenyan Judiciary in the early 1980s as a High Court judge and rose to become a Court of Appeal judge in the late 1980s.
He left the court to work for the World Bank Administrator Tribunal, Where he served until his appointment as Chief Justice in 1993, when the country was in such dramatic ﬂux with the return of multi—party politics. Apaloo’s grasp of the law was exceptional and his judgments were cogent and well-reasoned. He was a brilliant judge with the sharpest of legal brains. His tenure was, however, insigniﬁcant and lukewarm and his presence was never felt.
Chief Justice of Kenya – Abdul Majid Cockar
(Appointed December 30, 1994) – Honest and led Spartan life
He was the most conscientious and humble of all the Chief Justices of Kenya. He was rigidly honest and led a Spartan life. He refused to vacate his modest South C residence for the official residence of the Chief Justice, rejected the official limousine and security outside ofﬁce hours, and was a common sight along Uhuru Highway as he drove himself to and from work in a Peugeot 504 saloon car.
A very private and religious man, little is known about him and his tenure can be comparable to Mr. Justice Apaloo’s. He was never accused of any misdeeds, not even rumoured to have misconducted himself in any way. He was the closest to a saint as any Chief Justice of Kenya could ever get.
His humility, however, bordered on weakness. He was so self—effacing that a joke among lawyers said that he would queue with the public to see the Registrar of the High Court, his subordinate.
Although Cockar saw to the opening of new courts such as the Bungoma Law Courts and Milimani in Nairobi, the downside of his humility was that he was a weak administrator and made little impact on the future fortunes of the Judiciary.
Complaints of Executive interference and corruption grew in his tenure. Following the 1992 election, Cockar was on the Court of Appeal bench that caused a setback to the pro-democracy march when the court held that the Kenneth Matiba’s petition against Moi was invalid because it did not bear his own signature. To his credit, he is the only former CJ who has published his memoirs.
Chief Justice of Kenya – Zacchaeus Richard Chesoni
(Appointed December 3, 1 997) – The survivor
After qualifying as a lawyer, Chesoni started out at the lands office. He later joined the Judiciary as Registrar, succeeding J. Nyarangi. He was ﬁrst appointed to the bench in 1974.
By the time Mr. Justice Chesoni was appointed as acting Court of Appeal judge in February 1983, he had numerous law suits against him at the High Court. One creditor had ﬁled a petition before the High Court seeking to have him declared bankrupt. By 1984, the situation had become so embarrassing that Chesoni was forced to tender his resignation. He stayed out for six years and was again surprisingly reappointed in 1990. Before long, a warrant was issued for his arrest for failing to pay his debts.
But Chesoni was the ultimate survivor. President Moi appointed him chairman of the Electoral Commission of Kenya with the mandate to supervise the ﬁrst multi—party elections. He served the commission until 1997 when he was appointed Chief Justice.
Within a Week of his appointment, his name came up in another civil debt case before the High Court.
He is regarded as the person who entrenched corruption in the Judiciary
As early as 1979, Prof Wangari Maathai publicly accused him of corruption in the Way he had handled her divorce. She was jailed for contempt of court.
Chesoni Was a brilliant chap and in spite of not having been in practice, he had a solid understanding of the intricacies of the law. He was also adept at working the political system.
Chief Justice of Kenya – Bernard Chunga
(Appointed September 12, 1999) – Disciplinarian
A product of the old Kenya School of Law, Chunga began his career as a policeman. Upon qualiﬁcation, he joined the Attorney—General’s Chambers Where he rose to the position of Deputy Director of Public Prosecutions (DPP). He was promoted to C] in 1999. As Chief Justice, Chunga was the man with the most strength of character, and the political power among all Chief Justices, to reform the Judiciary.
A strict disciplinarian and excellent administrator, Chunga Was known to peremptorily attend to complaints in the Judiciary and to effectively resolve them. A former DPP, Chunga was feared by court personnel, magistrates, and even some judges for his no—nonsense approach to administration.
He was accused that while acting as the chief prosecutor, he conducted a purge on government critics and was an accessory to the torture of many accused persons who were charged in court.
Because he was appointed above many more qualiﬁed judges, especially at the Court of Appeal, Mr. Justice Chunga Was unable to secure their respect and had a hostile relationship with many of them. However, Chunga worked hard to rid the Judiciary of many problems. He established special divisions of courts for specific issues, thereby addressing structural causes behind delays. In 2001 he crafted rules for applications to the High Court for enforcement of fundamental rights. He instituted resumption of written law reports in 2002.
When the NARC government came to power in 2003, Chunga was immediately suspended from office after failing to heed calls to resign and a tribunal set up to investigate his conduct. He later resigned rather than face the tribunal.
Chief Justice of Kenya – Johnston Evan Gicheru
(Appointed March 4, 2003) – Effected ‘radical surgery’
Chief Justice Gicheru came to the helm of the Judiciary after a distinguished judicial career that started in 1982 when he was appointed High Court judge. Prior to this appointment, Gicheru had worked as a senior state counsel in the Office of the Attorney-General. He was elevated to the Court of Appeal in 1988, where he remained until his appointment as Chief Justice.
He secured national admiration in 1991 when he chaired the judicial commission of inquiry into the disappearance and death of the then minister for Foreign Affairs, Dr. Robert Ouko. He steered the come mission with such fearlessness that President Moi disbanded it before the end of that year.
He was appointed Chief Justice in 2003 and was to effect the so-called “radical surgery” that was formulated on the political front by the then Justice minister, Kiraitu Murungi. He also swore in President Kibaki for his second term after the 2007 elections. Though considered incorruptible, he was aloof towards the end of his tenure.
Chief Justice of Kenya – Dr Willy Mutunga
(June 2011 to date) – Competitively recruited
Mutunga’s appointment was hailed as fresh, competitively and openly managed, and stemming from unusual quarters.
Under the 2010 Constitution, he has the added mandate of first president of the newly—established Supreme Court.
Under his tenure, judicial expansion has been palpable. A phenomenal increase of judges, the opening of new High Court and Court of Appeal stations, rolling out of the digitisation of court systems, and the swanky refurbishing of the Milimani High Court in Nairobi have been his trademark. The jury is still out on whether independent thought, quality jurisprudence, efﬁcient management of case loads, and eradication of corruption will be achieved under Mutunga’s watch.