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CJ appeals decision allowing her to appoint six judges

By Paul Ogemba | November 11th 2021

Chief Justice Martha Koome at a Nairobi hotel on November 3, 2021. [Samson Wire. Standard]

Chief Justice Martha Koome has appealed against a High Court decision that allowed her to appoint six judges should the president refuse to swear them.

Justice Koome’s appeal means that she does not want to appoint and swear in the six judges who were rejected by President Uhuru Kenyatta over integrity issues and want the Court of Appeal to overturn the entire High Court decision.

The CJ through Muma and Kanjama Advocates has written to the High Court deputy registrar to furnish her with typed proceedings of the case and a copy of the judgement delivered on August 21 by Judges George Dulu, William Musyoka and James Wakiaga to enable her file the appeal.

“Take notice that the Chief Justice being dissatisfied with the judgment and decree of the High Court intends to appeal to the Court of Appeal against the whole of the said judgement and decree. We request to be furnished with the proceedings to file the CJ’s record of appeal,” said Charles Kanjama.

Lady Justice Koome joins President Kenyatta and Attorney General Kihara Kariuki who had already appealed against the decision and obtained orders stopping her from swearing the six judges until the appeal is determined.

Justices Dulu, Musyoka and Wakiaga in their decision ordered President Kenyatta to appoint Justices Joel Ngugi, George Odunga, Aggrey Muchelule and Weldon Korir to the Court of Appeal within 14 days.

They also directed the president to appoint High Court registrar Judith Omange and Mombasa Chief Magistrate Evans Makori to the Environment and Lands Courts failure to which it will be deemed that his authority to appoint had expired and that the CJ would take up the task of swearing them.

But following the president and the AG’s appeal, Appellate Judges Roseline Nambuye, Wanjiri Karanja and Kibaya Laibuta temporary stopped implementation of the decision until November 19 when they will give a detailed ruling.

President Kenyatta in his appeal through lawyer Waweru Gatonye argued that the High Court's decision would worsen the relationship between the judiciary and the executive, and that the judges made a mistake by misinterpreting the constitution on the president’s powers.

The AG through senior state counsel Emmanuel Bitta stated that swearing-in the six judges while there are issues concerning their integrity will erode public trust in the judiciary and that by-passing the president in the appointment process is unconstitutional.

“Allowing the judges to assume their positions will mean that the public will be forced to appear before judges whose integrity is still in question. It will set a bad precedent since the public will not have confidence to appear before them,” said Bitta.

According to the AG, the High Court judges  changed the constitution through the back door to strip President Kenyatta his powers to appoint judges and that the decision amounted to a constitutional coup by making declarations not backed by law.

He argued that the orders issued stripping the president of his powers to appoint judges was unconstitutional since the constitution already provides mechanisms to address remedies for the judges.

He added that the six nominee judges cannot legally perform the duties of their new respective courts when a case challenging their appointment is still ongoing and that any decision they make will be questionable.

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