The judges' employer has denied that it received adverse intelligence reports about nominees who are now at the centre of a fallout between the Judiciary and Executive.
The Judicial Service Commission (JSC) responded to President Uhuru Kenyatta's claims that it had nominated tainted judges by saying the National Intelligence Service did not reveal any information despite promising to do so.
In the escalating dispute between the President and Chief Justice David Maraga on the fate of 41 judges nominated to sit in the Appeal, Labour and Lands courts, the JSC says allegations raised in court by Head of Public Service Joseph Kinyua are misleading.
The Justice Maraga-led commission said it received a letter from the spy agency on July 5 that indicated it had damaging claims against some of the applicants.
"None of the reports were furnished and no particulars of the alleged adverse reports were provided to enable the commission to put the reports to the affected candidates for their response,” the JSC said in a reply filed yesterday in court.
It has been four months since JSC nominated 41 individuals for appointment as judges.
President Kenyatta defended his decision not to gazette the judges after saying he had received adverse reports on some of them.
Uhuru said it would be 'irresponsible on his part to appoint the judges who enjoy security of tenure given the integrity concerns'.
When the President failed to act after getting the names, lawyer Adrian Kamotho went to the High Court to compel him to make the appointments.
Mr Kinyua filed a replying affidavit on behalf of the President in which he revealed the integrity concerns facing some of the nominees.
In the affidavit, the President questions why JSC never considered this adverse information against the unnamed applicants.
“It would be irresponsible and contrary to the oath of office for the President to appoint judges, or indeed any other public or State officers to office, where serious questions have been raised about their integrity – more so judges who enjoy security of tenure and whose probity and integrity should be above reproach,” read the affidavit.
Yesterday, the JSC said it wrote back to the NIS and gave it seven days to provide the particulars of the adverse reports. It also informed the agency that those affected would be required to respond for the commission to make a decision on or before July 24.
All this time, the reply reads, Attorney General Kihara Kariuki – who is Uhuru’s legal advisor – was present in the meetings.
“On the instruction of JSC, I wrote a letter dated July 9, 2019, to the Director of NIS requesting for more particulars of the alleged adverse reports and the information by July 15, 2019. The commission did not receive any of the requested reports,” swore Judiciary’s Chief Registrar Anne Amadi, who is also the JSC secretary.
She added: “By a letter dated July 21, 2019, the National Intelligence Service responded that it had discharged its obligations in its first letter and it does not provide details of the adverse reports. As such, the process of the recruitment of judges had been postponed and extended to receive the alleged adverse reports and particulars from NIS, but none were received.”
The President had also told High Court Judge James Makau that JSC did not consult the Treasury, Parliament and the Salaries and Remuneration Commission for salary considerations before the hiring process started.
But JSC has denied the claims, saying it forwarded the Judiciary's budget to the clerk of the National Assembly on April 16 last year.
“There was no objection from the National Treasury. It did not object nor ask the Judiciary to suspend the recruitment of judges when the Chief Justice declared the vacancies. On the contrary, the Treasury was aware the JSC had finalised the recruitment and nominations for appointment of the judges,” JSC said.