The Court of Appeal has lifted orders that had stopped the Judicial Service Commission (JSC) from hiring new judges.
Justices Wanjiru Karanja, Agnes Murgor, and Imaana Laibuta unanimously ruled that Justice Anthony Mrima erred by issuing the orders.
The judges said Justice Mrima factored in his judgment extraneous issues that failed to demonstrate what parts of the Constitution were violated when JSC advertised for the new positions.
They said the problem cited by Katiba Institute in its case about President Uhuru Kenyatta’s failure to swear in six of the judges the commission had appointed in June 2021, did not lie on the JSC but with the Head of State.
“We have not been told what part of its constitutional mandate the 1st applicant has violated, how, and what Articles of the Constitution it has failed to uphold. Clearly, as posited by counsel who is in support of the application, the problem here is not that the applicant is recruiting judges,” said Justice Karanja who headed the Bench.
“The problem appears to be that the President has declined to swear in some of the judges previously recommended for appointment by the first applicant (JSC).”
JSC placed an advertisement in the newspapers inviting interested and qualified persons to apply for six vacancies in the Court of Appeal and 20 positions of judges of the High Court.
The commission shortlisted 31 candidates the for Court of Appeal positions and 104 applicants for the High Court.
However, Katiba Institute, through lawyer Julie Soweto, filed a case arguing it would be improper for the JSC to recruit new judges while there were others who were still waiting in line after being rejected by President Kenyatta.
“It was then improper and a derogation of duty of the first respondent’s constitutional mandate to commence a subsequent recruitment process,” argued Soweto.
Convinced by her argument, Justice Mrima issued orders freezing the recruitment exercise.
Aggrieved, JSC filed an appeal arguing that the High Court was interfering with its constitutional mandate.
According to the commission’s secretary Ann Amadi, the recruitment was meant to bolster access to justice. In her supporting affidavit, she claimed that there was a shortage of judges that had resulted in a backlog of cases.
Amadi said the number of judges that JSC sought to recruit would assist the Judiciary in tackling the expected avalanche of election petitions after the August elections.
She said the six judges that Uhuru left out while appointing others in 2021 and who are at the center of the case, will not be affected as their positions have not been advertised.
The case stemmed from another one filed last year by lawyer Adrian Kamotho who argued that the CJ can swear in judges in the event the President declined to do so.
According to him, the role of the President is ceremonial and he cannot choose who to swear in or leave out. He also urged the court to jail the President for defying court orders.
In his reply, Uhuru’s lawyer Waweru Gatonye told the judges that he had filed an appeal challenging their decision for him to participate in the cases.
“I am seeking a stay of the present proceedings and that application has been certified urgent. Parties were directed to file submissions, which has been done. I urge you, for good order, to adjourn the matter,” said Gatonye.
Six cases have been filed seeking to push the President to appoint the remaining six judges - Aggrey Muchelule, Joel Ngugi, George Odunga, and Weldon Korir.