Katiba Institute has moved to court this morning seeking to stop the swearing-in of the 34 Judges appointed by President Uhuru Kenyatta resident on Thursday.
The Lobby group has faulted the President for cherry-picking arguing that it has the deleterious effect of undermining the functioning of the Judiciary and its independence.
“That the Court issue a further order of prohibition stopping the Chief Justice and the Judicial Service Commission, their agents or anyone whatsoever from assigning duties to judges appointed from a partial list of the 40 nominees — contrary to the recommendation of the JSC in 2019 and the orders of this court in February 2020, pending hearing of the application and Petition,” the application reads.
Through Lawyer Dudley Ochiel, they argue that the cherry-picking by the President is illegal and serves as a constructive removal of the nominees already as sitting judges which is both unconstitutional and highly stigmatizing.
“The cherry-picking and selective appointment or swearing-in of judges undermines the functions and powers of the Judicial Service Commission and the functioning of the Judiciary. It also is an improper extension of the role of the Executive and has created a constitutional crisis,” Ochiel argues.
The Lobby group further argues that the partial swearing-in of a few judges would irreparably violate the Constitution.
Ochiel says that last year they had filed the case after getting information that the President was planning to swear in a part of the 40 judges and their fears have been confirmed.
“The worst has happened: Katiba’s fears have come true. By Gazette Notice 5233 to 5235 of 2021, the President has cherry-picked some 34 judges in waiting while discriminating against six others,” the lobby group says.
They also argue that the imminent swearing-in in these circumstances would irreparably violate the Constitution and the rights of the six judges in waiting some of whom are already serving as judges.
On Thursday, Uhuru rejected the nomination of justices Joel Ngugi and George Odunga to the Court of Appeal in a move seen as hitting back at the duo over their recent ruling against the BBI.
In a gazetted notice on Thursday evening, the President also declined the nomination of judges Weldon Korir and Aggrey Muchelule to the Court of Appeal.
They were among 41 judges the Judicial Service Commission had nominated and subsequently forwarded their names to the President for appointment in July 2019.
However, Uhuru delayed the appointments, with reports saying he had issues with the integrity of some of the nominees.
The issue dragged to court where it was ruled that the President was obligated by the Constitution to abide by the JSC decision.
Attorney General Paul Kihara appealed the ruling. The case is still pending. BY THE STAR