Transfer of High Court judge Mugure Thande raises eyebrows

A transfer policy for judges developed a few years ago,  requires that one should not be moved from a station until he or she has served there for at least 3 years.
The judge being transferred is to be notified at least 3 months to allow him or her to conclude part-heard matters and also not inconvenience litigants.
Justice Martha Koome has been using the policy to routinely effect transfers since her appointment as the country’s third Chief Justice after the promulgation of the new Constitution.
Last week, Justice Koome, who is also the president of the Supreme Court, transferred thirteen judges.
The changes announced by the CJ through the principal judge of the High Court, Eric Ogola, take effect on 2 October.
Caught attention
One of the names, however, caught the attention of many Kenyans — that of Justice Mugure Thande.
The High Court judge has recently been in the news for her bold decisions stopping the government from implementing the contentious Finance Act, 2023, effectively barring it from collecting new taxes.
A number of lawyers were quick to allege that Justice Thande’s transfer from Nairobi to Malindi had to do with her move to block the Act on two occasions.
The 58-year-old judge first stopped the Treasury Cabinet Secretary, Njuguna Ndung’u, from implementing the Act on 30 June, after hearing several petitions from among others, Busia Senator Okiya Omtatah.
While declining to lift the order issued stopping the new revenue-raising measures on 10 July, the judge said there was a real risk of the public being subjected to an unconstitutional law should the petitions succeed.
“I am, therefore, satisfied that notwithstanding the presumption of constitutionality of legislation, there is merit in granting conservatory orders in respect of the Finance Act under challenge,” the judge said.
The judge ruled the petitions raised substantial questions of law and referred the matters to Chief Justice Martha Koome for appointment of a bench of three judges to hear and determine them.
12 petitions
The CJ later appointed Justices David Majanja, Christine Meoli and Lawrence Mugambi to hear the twelve petitions, a majority challenging the Act on grounds the Bill was passed without following the proper legislative procedure and contained amendments to several laws that have nothing to do with raising revenue.
Prof Ndung’u on 28 July, convinced a bench of three judges of the Court of Appeal to lift the suspension. According to the appellate court judges, had Justice Thande considered the substantial and irreversible public interest in the matter, she would have been hesitant to suspend the whole Act.
Justice Thande has a reputation for bold decisions though. Last year, she quashed rules published by the CJ barring litigants and advocates from making comments on the presidential election petition, once it is filed.
The CJ had published the Supreme (Presidential Election Petition Amendment Rules) 2022, but they were challenged by lawyer Omwanza Ombati, who submitted that the rules were not subjected to public participation.
The lawyer also argued that the rules were unconstitutional as their development amounted to usurpation of the authority of Parliament.
Justice Koome had defended the rules saying they were meant to protect the integrity of court proceedings, and the dignity and independence of the court.
She cited incidents where some lawyers appear in court, argue their case and later take their arguments to social media, disparaging judges.
Freedom of expression
The CJ also maintained that the rules gazetted on 12 April, 2022, were not meant to take away the freedom of expression.
But Justice Thande quashed the rules stating, “I find that in making the impugned rules which contain a penal provision that is enforceable by the court, the Supreme Court went beyond its authority and usurped the law-making role of Parliament.”
Five days before the August 2022 General Election, Justice Thande delivered another landmark decision, directing the electoral body to use both manual and electronic registers to identify voters, saying technology can fail.
The judge holds a Master’s of Laws degree from the University of Nairobi, a Bachelor of Laws (LL.B) degree from the University of Bombay, a Bachelor of Arts degree from the University of Jabalpur and a Diploma in Law from the Kenya School of Law.
The alumnus of Kianda High School was admitted to the roll of advocates in 1991 and started her law practice at B. W. Kamunge & Company Advocates in 1991 before moving on to Kagwe & Company Advocates between 1992 and 1997.
She later moved on to Kimani Kairu & Co. Advocates between 2001 and 2005 and became a sole proprietor of Thande & Associates Advocates between 1997 and 2001.
Before she joined the Judiciary as a judge of the High Court in 2015, Justice Thande was a partner at Kembi-Gitura & Company Advocates.
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