By Anchor Writers

NEWS FEATURE

In the hushed, high-ceilinged boardroom of the Judicial Service Commission (JSC), amid the hum of livestream cameras and the stoic faces of Commissioners, the Court of Appeal interviews unfolded as a litmus test not merely of CVs, but of constitutional temperament.

This week-long public spectacle underscored an immutable truth: the Court of Appeal is not a classroom, not a debating society, or a podium for polished speeches — it is the crucible where Kenya’s constitutional architecture is upheld, refined, and made to live in the daily reality of justice.
For Machakos based lawyer Mr. Bernard Muteti Mung’ata — seasoned advocate, community leader, and former county assembly speaker — the interview was an unravelling of expectation.

First, he came without educational certificates. Given time to return to collect them in Machakos, he returned without his original KCE and CPE certificates. Nevertheless, he was given a hearing.

What began with promise dissolved into a series of answered queries that repeatedly circled back to the same core concerns: his integrity and lacking the doctrinal grip required of an appellate judge.
By contrast, those who emerged successfully from the same process — such as Justice Hedwig Imbosa Ong’udi, Justice Mathews Nduma Nderi, Lady Justice Lucy Mwihaki Njuguna, Justice Enock Chacha Mwita, Justice Samson Odhiambo Okongo, Lady Justice Rachel Chepkoech Ngetich, Justice Ahmed Issack Hassan, Justice Joseph Kipchumba Kigen Katwa, Justice Brown Murungi Kairaria, Justice Linett Ndolo, Justice Paul Lilan, Justice Munyao Sila, Justice Johnson Okoth Okello, and Justice Byram Ongaya — demonstrated precisely the constitutional fluency and jurisprudential poise the bench demands.

These names, now transmitted to President William Ruto by Chief Justice Martha Koome for formal appointment to the Court of Appeal, are not merely appointments; they are signals of where Kenya’s appellate jurisprudence is headed.
What separated success from failure in this crucible was neither merely the longevity at the bar nor ability to talk about law, but the dexterity to think constitutionally.
When Mr. Mung’ata was asked to explain the Pith and Substance Doctrine — a cornerstone of constitutional interpretation — his reply drifted into a discussion of public inconvenience should a law be struck down.

That is not pith and substance. That is policy. The doctrine exists to identify a statute’s true character so courts can decide whether it falls within the legislature’s competence. The Commissioners did not let this pass.  The interviewer had to spell ‘PITH’ for Mung’ata but he did not abandon his position. He pressed him to clarify, and when the candidate doubled down on an incomplete answer, he was told — pointedly — to revisit Article 19 of the Constitution itself.

In the Court of Appeal interview, such a corrective is not merely pedagogical; it is diagnostic: here, a candidate had wandered off the doctrinal map.
Elsewhere in the proceedings, Mr. Mung’ata’s handling of the political question doctrine similarly faltered. He spoke in generalities about judicial restraint, yet could not anchor his answer in any settled case law.

When pressed to cite a decision where a Kenyan court demurred from adjudication on political grounds, he referenced a Nairobi Metropolitan dispute but still could not confirm whether it even reached the Court of Appeal.

The Chief Justice had to gently steer the commission forward — a subtle but unmistakable signal that the candidate was stuck.
Perhaps the most unsettling moment came with the question on the Bill of Rights. Mr. Mung’ata acknowledged that rights are inherent, yet immediately suggested they could be “granted by the state.” He even muddled it further by saying human rights are humane.

This was more than a misstatement; it was a conceptual collapse. The Constitution is emphatic: rights do not originate from the state — they pre-exist the state and constrain all public power, including the judiciary.

The JSC again intervened to ground the candidate in constitutional text. That a candidate at this level would waver on such a basic tenet speaks to terminal and worrying unpreparedness that could not be glossed over.
When the conversation turned to LGBTQ equality and non-discrimination, the pattern, unbelievably, repeated.

Mr. Mung’ata reframed the inquiry as discrimination by “association” rather than directly addressing discrimination based on sex — a constitutional axis at the heart of equality jurisprudence.

A Commissioner’s curt “All right” closed the exchange — an implicit mark of closure, not endorsement. An appellate judge must wrestle with difficult, contested rights issues, not sidestep them.
On devolution jurisprudence, the contrast was stark. Asked about seminal Supreme Court authority such as Base Titanium Limited v County Government of Kwale, the candidate was unsteady, admitting unfamiliarity with the landmark decision and unable to cite any other apex decisions on devolved functions.

For a bench where devolution disputes are frequent and technically complex, this was not a minor slip. It was a threshold failure.

Successful interviewees — many of whom are sitting judges with extensive and supervisory experience — brought to the panel a working command of key devolution authorities, demonstrating readiness to engage the sophisticated legal questions that will define Kenya’s governance landscape.
Beyond doctrine lay temperament. The Commission also examined Mr. Mung’ata’s recent political engagements — including active campaigning during a by-election while his application was pending. While he assured the panel he would disengage upon appointment, the Chief Justice reminded him that a judge’s public conduct endures in public perception long after formal roles conclude. Judicial office is not merely a job; it is a life of restraint.
In the end,  as Mr. Mung’ata’s stood on his knees, the failure was not personal. It was constitutional.

The Court of Appeal is the court of binding precedent for most Kenyans. Its judges must arrive ready — carriers of deep doctrinal understanding, seasoned in jurisprudence, and unflinching in grappling with rights, devolution, and the competing claims that define Kenya’s constitutional democracy.

On the evidence of this interview, Mr. Mung’ata had not yet crossed the threshold. As a result, the JSC’s choice to leave him out was not just judicious — it was necessary.

In elevating candidates who demonstrated doctrinal clarity, jurisprudential confidence, and judicial temperament — and declining those who did not — the Judicial Service Commission did what the Constitution demands of it: to protect the public from judicial inadequacy before it hardens into precedent. That is why Mung’ata had to fail.
Not because he lacks intelligence. Not because he lacks experience. The reason is that the Court of Appeal cannot afford judges who are still assembling their constitutional compass.
In a country where many cases end at the Court of Appeal, where appellate judgments shape lives, liberties, and limits of power, the margin for error must be zero.

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