TRANSCRIPT: INTERVIEW OF MR. BENARD MUTETI MUNG’ATA
FOR THE POSITION OF JUDGE OF THE COURT OF APPEAL

Chief Justice Martha Koome:
Just to bring to your notice, in the morning you did not have the original certificates. You sought to be excused to go and fetch them because Machakos is not very far, and we allowed you to do so. However, we still do not have your original O-Level certificate and your primary certificate. The letter inviting you for this interview requested you to come with those original documents.
Mr. Mung’ata:
Yes, Chief Justice, I sincerely apologise. I have been able to get in touch with the school, and they have informed me that they will make those originals available. I note that this is actually my first interview of this nature, and perhaps I did not have sufficient experience. The person who was assisting me thought the originals referred to the Chapter Six documents, but I am truly sorry.
Chief Justice:
All right. Briefly tell us why you think you are suitable for the position of Judge of the Court of Appeal. We want to hear the values you hold as a person and what value you will bring to this Court if successful.
Mr. Mung’ata: Thank you very much, Madam Chief Justice and Commissioners. As stated in my application, my name is Benard Muteti Mung’ata. I am unmarried and have three children. I was admitted to the Bar in 1993, and therefore I have 33 years of experience.
In 2014, I became the Speaker of Machakos County Assembly, where I served for five years. During that period, I interacted with politicians and honed my skills in collegiality. I was able to resolve disputes and bring harmony within the county. I learned the cycle of budgetary processes, and we drafted bills that laid the foundation for Machakos County. Machakos was the first county to read a budget in the Republic of Kenya, such that other counties would come to benchmark with us.
Thereafter, I served as Chair of the  ICDC for four years, between 2018 and 2022. I learned a lot about management and financial management. The board, which is a government investment arm, was able to improve its performance during that period. I also participated in elective politics, having vied for the Senate in the last elections. Through that, I interacted with the public, understood their needs, and I will stand firm in defending constitutional rights because I understand the people very well.
Chief Justice: When you applied for this position and were shortlisted, background information indicated that you still engage in open partisan politics and that you were seen campaigning openly. With social media, nothing is hidden. Do you think that augurs well with the position of a Judge of the Court of Appeal?
Mr. Mung’ata: Madam Chief Justice, I agree. I did appear once or twice during a by-election in Mbuni Ward. People came to me as a leader from that area, and I guided them on who I believed was the best candidate at the time. I also confirm that I was campaigning for a party. However, if appointed a Judge of the Court of Appeal, I will distance myself from partisan politics. I will do so for the sake of the public and because we do not become bad simply because we are in politics.
Chief Justice: Even as a Court of Appeal judge, you will still be a leader, and people will continue calling upon you for direction, not only on political issues but also on societal matters, some of which may come before court. There is a perception issue.
Mr. Mung’ata: Madam Chief Justice, immediately I am sworn in, I will adhere strictly to the law and the judicial code of conduct. People will understand that I am now in a different calling, that of pursuing justice and order.
Chief Justice: Very well.

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Justice Sichale: Mr. Mung’ata, you have said that if appointed you will steer clear of politics. At the time you were campaigning for the MCA by-election, you had already applied to be a Judge of the Court of Appeal. Is that correct?
Mr. Mung’ata: Yes, that is correct.
Justice Sichale: As you may know, once candidates are shortlisted, members of the public are invited to give comments. We also conduct background checks. From our checks, allegations emerged that you were involved in insurance fraud relating to Invesco Insurance, where it was alleged your firm processed fake claims. What do you have to say?
Mr. Mung’ata: Commissioners, I have never been involved in any insurance fraud, and I am surprised by that allegation.
Justice Sichale: There is also a complaint from a member of the public alleging that you acted for her late husband and later acted against her interests. She refers to succession causes numbers 121 and 122 of 2010. She claims you were paid with five acres of land in Katani in lieu of fees and that in 2017 you sued her late husband for KSh 268 million as alleged unpaid fees. What do you say to that?
Mr. Mung’ata: My Lady, it is not true. I acted for the family before any suit was filed. The matter filed in 2017 was a divorce cause filed in Kangundo while I was serving as Speaker, and it was handled by a junior colleague, Mr. Mwema. Once I became aware of it, the matter was withdrawn and a consent recorded. That matter was closed.
I was never paid with land. To date, I have not been paid fees. The complainant’s relatives executed documents confirming this. On the children’s matter, the agreed fee was KSh 150,000, not KSh 500,000, and any excess paid was refunded. The family later reconciled, and the alleged bill abated.
Justice Sichale:You indicated that you only received this complaint one day before the interview?
Mr. Mung’ata: Yes. I was contacted by the secretariat on the 5th. I had not received it earlier and only accessed it after providing an alternative email address.
Justice Sichale: Was the address used an incorrect one?
Mr. Mung’ata: No. The complaint did not have an address indicated. Once I provided a Gmail address, it was sent immediately.
Justice Sichale:There was also an issue of you allegedly interchanging representation between family members.
Mr. Mung’ata: I did not interchange representation. I acted for the family collectively.
Justice Sichale:
And on the divorce matter, she protested your appearance in court before you withdrew.
Mr. Mung’ata: I filed a notice of withdrawal on 16 November 2018.
Justice Sichale: All right. Thank you for the responses.
Commissioner: Are you familiar with the political question doctrine?
Mr. Mung’ata: Yes. It is the doctrine that courts should exercise restraint in political matters concerning the Legislature and the Executive.
Commissioner: Can you give examples where courts have desisted?
Mr. Mung’ata: Conflicts of functions between national and county governments, such as the Nairobi Metropolitan matter.
Commissioner:
Which court decided that?
Mr. Mung’ata: It began in the High Court. I am not sure if it went to the Court of Appeal.
Chief Justice: Thank you.
Commissioner: Are you currently a member of a political party?
Mr. Mung’ata: Yes. I am a member of Maendeleo Chap Chap.
Commissioner: Explain the pith and substance test.
Mr. Mung’ata: It is a constitutional doctrine of interpretation. The court considers the consequences of declaring a statute a nullity and whether public interest is protected.
Commissioner (clearly dissatisfied): Pith and substance. That is your response?
Mr. Mung’ata:
Yes.
Commissioner:
You may take time to go and refresh your understanding, particularly Article 19.
Commissioner:
Are you familiar with the Supreme Court decision in Gitari concerning transgender persons and the NGO registration decision on LGBTQ groups?
Mr. Mung’ata: Yes.
Commissioner: If individuals identifying as LGBTQ come before you alleging discrimination on account of sex, would sex be a determining factor?
Mr. Mung’ata: They are equal before the law and have freedom of association. If discriminated against, I would grant relief.
Commissioner: The question is discrimination on account of sex.
Mr. Mung’ata:On account of association.
Commissioner: All right.
Commissioner: What is the purpose of recognising and protecting the Bill of Rights?
Mr. Mung’ata: It ensures equality and guards against abuse of the person.
Commissioner: What is the nature of these rights?
Mr. Mung’ata: They are human rights. They are humane
Commissioner: Humane to mean what? Are they granted by the state or inherent?
Mr. Mung’ata: They are inherent.
Commissioner: Can they be granted by the state?
Mr. Mung’ata: Yes.
Commissioner: You may want to revisit Article 19 for clarity.
Justice Njoki Ndungu: Earlier you said someone helped prepare you for this interview and overlooked the certificate requirement. Judicial work is personal. Will such assistance extend to your work as a judge?
Mr. Mung’ata: No. Judicial work is mine alone. The assistance was administrative due to registry closures during holidays.
Commissioner:
Are you familiar with Base Titanium Limited vs County Government of Kwale?
Mr. Mung’ata: Not exactly.
Commissioner: Any other Supreme Court decision on devolution?
Mr. Mung’ata: Yes. I have matters on devolution.
[Transcript ends due to source cutoff]

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