CJ David Maraga

Chief Justice David Maraga is on record as the first top judge in Africa to nullify a presidential election in 2017. This was only borrowed recently by Malawi top court which also nullified the presidential poll.

However, Maraga is set to exit office. But who will now replace him?

Well, Attorney-General Kihara Kariuki is emerging the frontrunner in the race to replace Maraga who is set to retire anytime from now.

For now, if Maraga decides to proceed on leave, deputy CJ Philomena Mwilu will act. Mwilu is being favoured by a section in ODM to succeed Maraga by virtue of her closeness to former AG Amos Wako and now Busia senator on ODM ticket.

According to a local daily, Kariuki, formerly the president of the Court of Appeal, is being considered a safe bet by State House mandarins eager to have a reliable gatekeeper at the corridors of justice.

Supreme Court judge Smokin Wanjala is the favourite by the majority of lawyers according to a secret report compiled by various state agencies and if voting by lawyers was to determine the next CJ, Wanjala will definitely win. However, he is seen as independent-minded like Maraga.

Other names that are being touted include East African Community judge Charles Nyachae, former national assembly speaker Kenneth Marende, Supreme Court judge Njoki Ndung’u, Lady Justice Hannah Okwengu of Appeals Court and Solicitor General Ken Ogeto, and Justice Isaac Lenaola mong others.

But according to sources, the State House mandarins do not want a repeat of the 2017 scenario where Maraga led the bench in nullifying the presidential election and that is why they want a reliable candidate for the CJ’s position, and that person is Kariuki.

Besides, the AG is a relative of Uhuru Kenyatta as his mother is the daughter of Senior Chief Koinange. Kariuki, who was born on May 11 1954 in Kiambu, is the son of the late bishop of Anglican Church Obadiah Kariuki and Lillian Wairimu, the daughter of Senior Chief Koinange.

It is to be recalled that Uhuru’s father, Mzee Jomo Kenyatta married his third wife, Grace Wanjiku, daughter of Senior Chief Koinange and sister of Mbiyu Koinange in 1946.

But Wanjiku died when giving birth in 1951 to their daughter, Jane Makena Wambui (also known as Jeni). Jeni Makena Gecaga is the mother of Soiya Gecaga, Nana Gecaga, and Jomo Gecaga, who serves as the president’s private secretary.

Insiders added that State House is keen to have the holder of the CJ’s position a person they can trust since he or she will be instrumental in the re-composition of the Supreme Court bench which will determine any petition challenging a presidential election in 2022.

Already, Justice Jackton Ojwang has retired as Supreme Court judge after attaining the mandatory retirement age while Justice Isaac Lenaola is being fronted to head the Independent Electoral and Boundaries Commission.

Apart from blood ties with the first family, Kariuki is also emerging the favourite due to his past rulings as a judge which have tended to side with the executive.

As the president of the Court of Appeal, he led the bench in overturning a ruling by High Court judge George Odunga that had declared the appointment of returning officers for the 2017 general election as not procedural, a day to the repeat presidential poll.

Justice Odunga had declared the appointments unconstitutional but had declined to grant the reliefs the petitioners were seeking, which included halting the polls.

Nevertheless, Odunga’s ruling, if not overturned, would have come in handy in the petition seeking to declare the repeat presidential poll a nullity.

It was this ruling that saw former Law Society of Kenya chief executive officer Apollo Mboya seek to block Kariuki after Uhuru tapped him to be his chief legal advisor.

Mboya filed a misconduct case at the Judicial Service Commission where he averred that Justice Kariuki was unfit to take over from Githu Muigai as Attorney General.

The JSC formed a special committee to look into the misconduct and insubordination allegations against Kariuki and his fellow Court of Appeal judges, Erastus Githinji, Martha Koome and Fatuma Sichale who had overturned Justice Odunga’s ruling.

The petition questioned how Justice Kariuki was able to impanel a three-judge bench of justices Githinji, Koome and Sichale on a public holiday and without the authorization from the Chief Justice.

He also questioned the manner the appeal was expedited and final ex parte orders given within minutes. But Kariuki passed the vetting and became a member of the JSC by virtue of his position as Attorney General.

Having resigned as a judge, the JSC was not in a position to pursue the matter of his misconduct further. If Kariuki lands the slot, to hoodwink Kenyans that he is not playing tribal card in Judiciary, a face outside Kikuyu will replace him as AG.