Judges and Magistrates Association calls Uhuru out on selective appointments

President Uhuru Kenyatta on Thursday, June 3 appointed 34 out of 40 JSC nominees to new judge positions. [File, Standard]

The Kenya Magistrates and Judges Association (KMJA) has faulted President Uhuru Kenyatta for rejecting six Judicial Service Commission (JSC) nominees to the positions of judges of Court of Appeal, the Environment and Land Court and the Employment and Labour Relations Court.

The Association says the President lacks Constitutional powers to cherry-pick appointees from the list forwarded to him by the JSC.

Out of the 40 names of legal practitioners listed for new appointment (excluding lawyer Harrison Okeche, who died in a road accident in Narok on October 4, 2020), Kenyatta appointed 34.

KMJA’s Secretary-General Derrick Kuto now says the move was illegal.

“Once the JSC has recommended names for appointment, the President has no power to tinker with the names. Any such attempt amounts to interference with the institutional independence of the JSC, violation of the Constitution and in particular, the rule of law,” Kuto said in a statement dated Friday, June 4.

“It is against this background that KMJA calls upon the President to respect the rule of law. Prior to the promulgation of the Constitution of Kenya 2010, the President had powers to appoint judges. Kenyans voted to have a [new] Constitution that gave the Judicial Service Commission (JSC) the power to recommend judges for appointment by the President,” added Kuto.

The KMJA official said the High Court has, in the past, ruled that the Head of State’s freedom to sieve the judges for appointment is non-existent.

“The High Court of Kenya pronounced itself on this issue that the President is constitutionally bound by the recommendation made by [the] JSC in accordance, and that the President's failure to appoint the persons recommended as judges violates the Constitution,” said Kuto, urging Kenyatta to rescind his decision of locking out six nominees to judge positions.

While leaving out the six, the President said on Thursday, June 3 that the nominees “did not meet the threshold for appointment”.

Among those rejected are High Court judges Weldon Korir, Aggrey Muchelule, Joel Ngugi and George Odunga, who were to be promoted to the Court of Appeal.

The other two the President locked out are High Court Registrar Judith Omange and Chief Magistrate Makori Evans Kiago.

Kenyatta’s sieving of the JSC list has elicited uproar from the legal field, with several lawyers accusing him of usurping the JSC’s powers.

Appointment of 34 judges comes two weeks after the swearing into office of Chief Justice Martha Koome, who had set diplomatic negotiations with the Executive as among her priorities to ensure the judges are appointed.

Those the President appointed to the Appellate court are High Court judges Francis Tuiyot, Hellen Omondi, Pauline Nyamweya, Msagha Mbogholi, Jessie Lesiit, Mumbi Ngugi and lawyer Kibaya Imaana Laibuta.

Those appointed to the Employment Court are Christine Noontatua, Jacob Kariuki, Jemima Wanza, Anne Nguibini, Bernard Manani, Stella Chemtai, Kebira Ocharo, Agnes Kitiku and David Nderitu.

Those appointed to the Lands Court, are Joseph Mboya, Lucas Leperes, Michael Ngolo, Edda Dena, Lillian Gathoni, Joseph Mugo, Edward Wabwoto, Anne Yatich, Maxwel Gicheru, Jacqueline Mogeni, and Fred Nyagaka.

Others are Christopher Nzili, David Mwangi, Lynnette Achieng’, Emmanuel Mutwana, Annet Nyukuri, Theresa Wairimu and Esther Asati. Lawyer Harrison Ogweno, who had also been nominated to the court, died last year.

For the 34 appointed judges, it has been a long wait of more than two years since their nomination, which led to a bitter fallout between the President and former Chief Justice David Maraga.