Chief Justice Martha Koome and the Judicial Service Commission (JSC) now want the High Court to dismiss a case on the appointment of judges that was lodged in court by Katiba Institute.
Koome and JSC argue that the orders sought are no longer reasonable given that in their opinion the petition has been overtaken by events.
“The petition is bad in law, fatally defective and an abuse of the process of this honourable court,” they said
In the said petition (Petition 206 of 2020), Katiba Institute sought to have President Uhuru Kenyatta compelled to appoint all the judges recommended for promotion to superior courts by the Judicial Service Commission.
The petition questioned the constitutional validity of the President’s ‘disregard of court orders and selective appointment to office of’ 36 of the 41 judges recommended.
In the petition, Katiba Institute further wanted the court to direct the Chief Justice to publish for the general information of the public in the Kenya Gazette, the names of the persons recommended for appointment as judge of the Court of Appeal, judge of the Environment and Land Court and judge of the Employment and Labour Relations Court respectively following the decision by the President not to approve the appointments.
This according to the CJ and JSC is no longer tenable.
“The Chief Justice and JSC have no powers under the Constitution or the law to stop any judge of a superior court or a judicial officer from performing his or her judicial functions,” they said through lawyer Isaac Wamaasa.
The Chief Justice and the commission she leads argue that they are ‘functus officio’. They said the prayers have no merit as their mandate on the subject has ended.