Of firm stance and gentle heart: Justice Warsame's two worlds

Supreme Court judge nominee Mohamed Warsame is a different man, from one person to another.

From the many who have either interacted with him or known him owing to his position as judge, two sides of the same man appear; he is a firm and no-nonsense being who will push back with a blunt tongue.

While to others, he is soft, simple, solid and golden-hearted, a 58-year-old soul.

Questioned by Supreme Court judge Njoki Ndung’u over his temperament, he told the Judicial Service Commission (JSC) that people do not understand him.

“One thing I have, and God has given me, is a golden heart which accommodates everybody. I can relate to the tea boys and the Chief Justice. The problem is that many people tend to know me, but they do not understand me. I am not a great judge, but I am a judge who has a golden heart,” he said.

Njoki pressed the judge to respond to his past as a commissioner involved in the interview of his colleague Justice Nduma Nderi, and his exchange with Justice Jackton Ojwang in 2016.

He pushed back and, in a point-blank reply, told her that she had a dog in the fight then.

Judge, you had an interest in the matter,” he replied, adding that if he may have offended anyone, he was apologetic.

In the corridors of justice, the judge is known by a nickname connoting that he does not fear storms and who does not shy away from expressing his mind in abrasive tremors or is simply combative.

Former Kenyatta University Vice Chancellor Prof Olive Mugenda, on her X account, recounted her experience with him, affirming that he was a golden heart.

“Sending a congratulatory message to my friend and former colleague, Hon Justice Mohamed Warsame, for being nominated by JSC to the position of a judge of the Supreme Court. I followed the interview from outside the country and the Hon judge did an excellent job ...and yes, your Honour, I would have asked you about emotional intelligence as you mentioned, but Hon Commissioner Caroline Nzilani, who took over from me, handled it very well.

From my experience working with the Hon Judge as JSC Commissioners, where we always sat next to each other, I can confirm he has a golden heart, as he said. Also, very well grounded in Law as he ably demonstrated during the interview,” she wrote.

Lawyer Evance Ndong, while also reacting to the interview, jokingly claimed that the judge may have got to a point of ‘‘whatever happens’’.

“It appears Warsame JA has reached the point of 'Si ikae?’ Kwani si mimi nawashow! (loosely translated as he had reached a point where you can deny me the job, but I am telling you as it is,” he wrote.

Lawyer James Wanjeri termed Warsame as a conservative in his approach. Nevertheless, he said. He could be quite caustic, while reflecting his interaction with Prof Jackton Ojwang when he was a commissioner.

Nashon Okowa of Beacon Africa Ltd described the judge as a contrarian, something which he said was needed at the Supreme Court.

But they all agree that the man is a legal genius and a worker.

JSC data, which he was questioned about, indicated that in the eight benches he sat with his colleagues, he posted an impressive output with more than 50 per cent.

Warsame’s move to the Supreme Court marks the last mark in his career as a judge, which started in 2003 as a High Court judge.

However, his legal career started in 1994 after being admitted to the bar.

He studied at the University of Nairobi, where he clinched the Gandhi Smarak Nidhi merit award for being the best overall student. At the same time, he got the Hamilton Harrison and Mathews Award as the best final year award.

Warsame, in 2011, was cited for his case clearance rate at the Commercial Court. He was named by the Law Society of Kenya (LSK) as the jurist of the year.

The following year, he was appointed to the Court of Appeal and subsequently appointed as the court’s representative at the JSC.

 However, his stay at JSC was without friction.

When he was elected for a second term in 2018, the then Parliament declined to process him for appointment on a standoff on whether he ought to have been vetted.

The LSK moved to court, which then blocked MPs from having the Judge on the hot seat.

 In response to the court order, MPs adopted a report blocking his appointment. The then Justice and Legal Affairs Committee, chaired by then Baringo North MP William Cheptumo, tabled a report protesting High Court orders.

The MPs accused the Judiciary of interfering with their oversight role, which then escalated the standoff between the two arms of government.

JSC termed the vetting unconstitutional as the judge was validly elected by Court of Appeal judges to represent them and, as such, needed no vetting.

In a letter, JSC said, “The JSC holds the considered view that the approval of Justice Warsame by Parliament is neither provided for in the Constitution of Kenya 2010 nor the Judicial Service Act 2011.”

Eventually, Justice Chacha Mwita declared that it would be a waste of public funds for MPs to vet a person who has already been vetted before assuming office.

The judge said the JSC Act did not envisage a scenario where those nominated to sit in the commission would pass through the hands of MPs before taking up their roles.

“There is no requirement that JSC commissioners should be vetted and appointed by Parliament. The appointment of JSC commissioners is conferred to the President and not Parliament,” ruled Justice Mwita.

He also noted the President has no discretion to reject names of people forwarded to him, as his role in the chain is to just formalise the appointment.

The ruling deepened the already sour relationship between Parliament and the Judiciary. With the ruling, the Judiciary shielded itself from Parliament’s “unnecessary intrusion”.

But in retaliation, MPs starved the third arm of government by slashing its budgetary allocations.

Uhuru then went quiet about the appointment for more than 10 months. This stirred yet another controversy after an application was filed to jail the then-President for defying court orders.

The court had to order in 2019 that he ought to assume the position. Justice Mwita said that Warsame was exempted from taking the oath of office after finding that the President had violated the Constitution.

 Some of the notable cases he has handled include the appeal filed by former Langata beauty pageant Ruth Kamande. He, alongside Justice Hannah Okwengu and Jamila Mohamed, unanimously agreed that the lawyer should suffer death, just as it had been ordered by the High Court for the gruesome stabbing of her boyfriend, Farid Mohamed Halim.

“There is no doubt Kamande inflicted the injuries that caused the death of Farid. No doubt she inflicted 25 stab wounds on Farid’s chest, hands, legs, head, abdomen, back and shoulders,” the trio ruled.

The Supreme Court affirmed its judgment.

At the same time, he, alongside Kathurima M’Inoti and Hellen Omondi, lifted orders which had blocked the Kenya Kwanza administration from collecting taxes using the Finance Act, 2023.

The three judges termed the Finance Act a unique law and they faulted High Court judge Mugure Thande for issuing a blanket freeze.

What awaits the apex court is the entry of a chief whip, who has a no-nonsense approach. He said that he will not mind joining politics when he leaves the Judiciary.

 “I said I’d run for the Mandera Governor seat when I retire from the Judiciary. I don’t see a problem because maybe I’ll want to be governor of Mandera one day if my people call me, but that has not and will not affect my responsibilities as a judge. I am the most impartial judge with an impeccable character,” said Warsame.