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Justice Maraga's Findings by the Judges and Magistrates Vetting Board

Honourable Justice David Kenani Maraga

125. The Board interviewed Justice Maraga on 16th May 2012. At the judge’s election, the interview took place in public.

126.  After receiving an LLB from the University of Nairobi in 1977, and a post-graduate diploma from the Kenya School of Law in the next year, Justice Maraga was in private practice in Nakuru until appointed to the High Court in 2003. He is currently completing a Master’s degree at the University of Nairobi. He served first in the High Court in Mombasa and then as Presiding Judge for two years in Nakuru, before being transferred to Nairobi, where he was first posted to the Constitutional Review Division and later became the head of the Family Division. In 2011, Justice Maraga was appointed to the Court of Appeal. Amongst the responsibilities he lists is his membership of the Constitutional Review Task Force of the Seventh Day Adventist Church East Africa Union.

127. Justice Maraga meets the constitutional criteria for appointment as a judge. The judge filed his wealth declaration forms and was questioned upon them. Nothing untoward emerged.

128.  The most serious complaint against the judge was that he had been bribed to hold in one case that provisions in the Valuation for Rating Act48 were unconstitutional, while ruling in another matter that the Nakuru City Council’s valuation roll was valid. However, no-one claimed to have seen the judge solicit or receive a bribe. Though the complainants informed the Board that a political aspirant in Nakuru had been telling stories that he had brokered a deal with the judge, few details were offered. The judge vehemently rejected the allegation, and produced a dramatic moment in the proceedings by insisting on swearing on the Bible that he had never taken and would never take a bribe.

129. The Board finds no reason to doubt the judge’s integrity in handling these matters. There was no obvious conflict between the two decisions, nor was there any sign in either judgment of an approach to judging which could undermine public confidence in the judiciary. It would not be appropriate for the Board to sit as a court of appeal on the correctness of the findings of fact and law made by the judge, particularly in view of the fact that an appeal had been noted against his finding that portions of the Valuation for Rating Act were unconstitutional.

130. A second complaint concerned a complex criminal case in which both the accused and one of the two victims were members of the police. The charge was one of murder and the judge convicted the accused of manslaughter, imposing a sentence of ten years’ imprisonment. The complaint was that the judge had been unfairly lenient to the accused and had been influenced by tribalism. The state had noted an appeal, which was pending. The Board found it difficult to follow the judge’s reasoning in a passage of the judgment that dealt with the difference between self- defence and provocation. But when questioned on the matter, the judge admitted that he could well have erred. In any event it would not be appropriate for the Board to sit as a court of appeal to examine the overall legal and factual correctness of the decision. The evidence did not substantiate the existence of any unfairness or improper motive on the part of the judge.

131. The Board also considered a complaint from a litigant who had been dismissed from Post Office. The complainant was satisfied that the judge had accepted that he had been unfairly dismissed by the Kenya Posts and Telecommunications Corporation. But the complainant was unhappy that he had received only KS 150,000 damages when he had claimed Kshs 8 million. During the interview, the judge explained that he could not award compensation for losses that were not supported by the appropriate documentary evidence. The Board also learnt that the claim had been pending for more than ten years, mostly before other judges. Although the Board could understand the complainant’s feelings of disappointment and frustration, the Board could not fault the judge’s conduct. The Board advised the complainant to follow up on the possibility that he might be entitled to certain pension rights.

132. As regards additional complaints that the judge had been impatient with him and his counsel, and had adopted a high tone when delivering judgment, the Board notes that judges vary enormously in temperament and personality. What matters is that Judges should not regard their position as entitling them to lord it over litigants and members of the public. At his interview with the Board, the judge made a confident, forceful and dignified impression. The Board received positive reports from the legal profession in the Rift Valley, who complimented the judge on his punctuality, the seriousness with which he approached cases, and his control of the courtroom.

133. Finally, the Board took account of the judge’s record of public service. While serving as the Presiding Judge in Nakuru, the judge was instrumental in setting up a programme and obtaining funds for training Chiefs and Village Elders as the first persons to whom crimes would be reported, and who would handle and preserve evidence, especially in sexual offences and domestic violence cases.

Over the course of many visits he took steps to decongest prisons and attend to prisoners’ complaints.

134. However, after applying the objective criteria set out in the Act and balancing out all the relevant factors, the Board unanimously found that the judge is suitable to continue serving on the Bench.