A lobby group has filed an application at the High Court, contesting the recent appointment and omission of other judges by President Uhuru Kenyatta.
The Katiba Institute, through lawyer Ochiel Dudley, termed the move by the president as discriminatory. The lobby charges that the swearing in of the 34 would amount to violation of the Constitution and the rights of the remaining six.
“Cherry-picking illegally serves as a constructive removal of the nominees already as sitting judges. A fact which is both unconstitutional and highly stigmatizing,” Reads part of the application.
The institute argues that Article 166(1) commands the President to appoint judges of superior courts in accordance with the recommendation of the Judicial Service Commission (JSC).
As a consequence, the Katiba Institute wants the court to issue an order stopping the CJ and the President from swearing in the judges without the other six contrary to the recommendation of the JSC in 2019 pending hearing of the application.
It further wants the court to issue an order barring the Chief Justice and the JSC from assigning duties to the 34 appointed judges.
In a Gazette Notice dated June 3, the president appointed 34 judges from the 41 who had been nominated by the JSC with the President declining the nomination of Justices George Odunga, Prof. Joel Ngugi, Weldon Korir, and Aggrey Muchelule.
Justices George Odunga and Prof. Joel Ngugi were part of the five-judge bench who declared that the President violated Chapter six of the Constitution on Leadership and Integrity, for attempting to change the Constitution through the unconstitutional process of the BBI.
Judges Makori Evans Kiago and Judith Omange Cheruiyot also failed to impress Kenyatta, and have been referred back to the Commission.
The Judges who were appointed are long-serving Judge Msagha Mbogholi and his High Court colleagues, Hellen Omondi, Francis Tuiyott, Jessie Lesiit, Mumbi Ngugi and Pauline Nyamweya, as well as law scholar, Dr Imanata Laibuta.
The President also appointed nine Judges to the Employment and Labour Relations Court and another 18 to the Environment and Land Court, leaving out two Judges.
The Judges appointed to the Employment and Labour Relations Court are; Baari Christine Noontatua, Gakeri Jacob Kariuki, Keli Jemima Wanza, Mwaure Ann Ngibuini, Matanga Bernard Odongo Manani, Rutto Stella Chemtai, Kebira Ocharo, Kitiku Agnes Mueni-Nzei and Nderitu David Njagi.
Environment and Land Court appointees include, Mboya Oguttu Joseph, Naikuni Lucas Leperes, Mwanyale Michael Ngolo, Addraya Edda Dena, Kimani Lilian Gathoni, Kamau Joseph Mugo, Wabwoto Karoph Edward, Koross Anne Yatich Kipingor and Gicheru Maxwell Nduiga. Others are Mogeni Ann Jacqueline Akhalemesi, Ongarora Fred Nyagaka, Christopher Kyania Nzili, Mugo David Mwangi, Omollo Lynette Achieng’, Washe Emmanuel.
The recruitment of the Judges was finalized by the Commission between July and August 2019 and the list forwarded to President Kenyatta for appointment.
Chief Justice David Maraga, during his tenure in which the recommendations of the Judges were made, had pleaded with the President to appoint the Judges, in vain with the President, citing integrity issues for failure of appointment.
“The Constitution does not donate any mandate to the President to perform any other act upon [receiving] the names recommended by the JSC except to appoint them,” Maraga had said.
The former CJ noted that the situation was probably worse at the Court of Appeal, which had 15 Judges serving the whole Country.
During the Chief Justice interviews in which Martha Koome was appointed as the CJ, majority of interviewees stated that the Judiciary’s functions were impeded due to lack of Judges quorum, and called on President Kenyatta to hasten and appoint the Judges forwarded to him in 2019.
On its twitter page, Katiba Institute says that from June 2020, they feared that the president was planning to segregate against the judges and appoint those he prefers while rejecting the others.
“The Attorney General rejected this fear in court as hearsay and baseless.” the Lobby indicated.
What’s more, the lobby wants the AG found unfit to hold office for playing partisan politics with this important issue and for misadvising the president.
“The AG sat in all 41+ interviews. But now leads in challenging the recommendations he also made as part of JSC. The President must raise his issues at the JSC interview because he is well represented by up to 4 individuals including the Attorney General. So that the partial appointments is only further contempt of Court by the President.” It argues.
Elsewhere, the Kenya Magistrates and Judges Association is protesting over President Kenyatta’s rejection of the six Judges terming it unconstitutional and failure to follow rule of law.