The Court of Appeal has temporarily suspended an order directing President Uhuru Kenyatta to swear in six judges within two weeks.
Justices Roselyn Nambuye, Wanjiru Karanja and Imaana Laibuta granted the orders after President Kenyatta rushed to the Appellate court last week arguing that there is an eminent danger of embarrassment and uncertainty in the dispensation of justice, if the directive remains unchallenged.
The three judges gave the temporary orders, pending a ruling on November 19.
Earlier, Katiba Institute had asked the judges to deny President Kenyatta audience over his refusal to obey court orders.
The lobby group argued that the President’s refusal to comply with the orders has done untold damage to the justice system and to judicial independence.
Through lawyer Dudley Ochiel, the lobby group said President and Attorney General Kihara Kariuki have treated court orders ‘as meaningless scraps of paper that could be used to tie the Respondents up in knots’ rather than as mandatory directives that form an essential part of basic social order.
A bench of three judges of the High Court gave President Kenyatta two weeks to swear in the judges, failure to which they will assume the positions after being sworn in by Chief Justice Martha Koome.
“The public interest cannot support sustenance of the President’s 3-year delay and obstinate refusal to appoint judges. Surely, this court cannot hold that it is in the public interest to lend succor to the president’s open contempt for the orders,” the lobby group stated.
Through lawyer Waweru Gatonye, President Kenyatta argued that the appeal was extremely urgent because there is an eminent danger of embarrassment and uncertainty in the dispensation of justice, if the six judges are deemed to have been appointed as directed by the High Court.
The six judges left out when the President appointed 34 others are High Court judges Aggrey Muchelule, George Odunga, Weldon Korir and Joel Ngugi. The four had been recommended by Judicial Service Commission to join the Appellate court.
President Kenyatta also left out chief magistrate Evans Makori and High Court registrar Judith Omange, who were recommended to be judges of the labour court.
“The Judgment is clearly an attempt to rewrite or otherwise amend the constitution in a manner not contemplated under chapter 16 of the constitution,” Mr Gatonye said in the appeal.
He argues that the order will cause uncertainty over the legality of proceedings to be handled by the said judges, if the High Court decision stands and might expose Kenyans to ‘unmitigated harm and anguish’ in the event the intended appeal is successful.
In opposing the appeal, Mr Ochiel told the court that Article 166(1)(b) commands the President to appoint “judges, in accordance with the recommendation of the Judicial Service Commission”.
He said, however, since 2016, the President preferred to cherry-pick and appoint only the judges he prefers based on criteria known only to the Attorney General and him.
He pointed out that the Attorney General was a member of JSC between June and July 2019, and actively interviewed candidates for judicial appointments.
He said the A-G did not raise any issue against any candidate concerning their integrity–not once and it was only Law Society of Kenya Representative Macharia Njeru who dissented from the recommendations claiming that not enough judges had been appointed from private practitioners.
